What Exactly Is Habeas Corpus?

Fear not; I shall swiftly disabuse you of your ignorance! Those who know me are aware that federal habeas corpus is my favorite area of law. You might even say I am a habeas nerd. As it turns out, however, a lot of Americans don’t seem to know what in the world habeas corpus even is. I figured I’d remedy that with a concise primer of sorts. Think of it as a cliff notes version of habeas law. I might do more of these quick summaries explaining other areas of law if there’s a demand…or if I just feel like it.

1. History of Habeas Corpus

Habeas corpus is an ancient “writ” used to test the validity of a person’s imprisonment/detention. Although many different forms of habeas developed, the one we generally think of today is the one that examines lawfulness of imprisonment. This form originated in Medieval England and was a way that justices on the King’s Bench court could exert the king’s prerogative, or, privilege over officers of the king such as jailers. For an excellent—albeit long—history of the writ and how it came to develop in America, see Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575 (2008).

2. The Federal Law of Habeas Corpus

Although the writ began as judge-made “common law,” the American Constitution codifies habeas corpus in Art. I, § 9, cl. 2. This is commonly known as the “Suspension Clause” and it says that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” Congress has passed several statutes fleshing out what exactly constitutes habeas in American law. The first was the Judiciary Act of 1789, which has been followed by the Habeas Corpus Act of 1867 and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). These acts are federal law but habeas also has meaning under state law in many different states. I won’t address that here since it varies considerably from state to state.

3. How Habeas Corpus Operates in America Today

The original point of habeas corpus was to ensure that someone wasn’t imprisoned without due process of law. In other words, to make sure that a person wasn’t arrested without probable cause or held without any chance of a trial. Now, that sort of thing rarely happens anymore but the writ is doubtless available if someone is arrested and held without being charged. Today, habeas corpus is most frequently used by a prisoner who has already been convicted of a crime. Under 28 U.S.C. § 2254(d), state prisoners may challenge the lawfulness of their conviction in federal court and under § 2255, federal prisoners may do the same thing by making a motion to vacate their sentences. However, those who are being held before any court proceedings still may challenge their detention under 28 U.S.C. § 2241. This is the avenue that detainees at Guantanamo Bay have used. The most recent Supreme Court case on habeas corpus is Boumediene v. Bush, which is well worth a read. It discusses the writ at length.

-Zachary Cloud

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