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In , through which a person can seek Relief from Unlawful Detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action. Also known as "The Great Writ," a writ of ''habeas corpus ad subjiciendum'' is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner, or some other person on his behalf (for example, where the prisoner is being held ), may petition the court or an individual judge for a writ of habeas corpus. The right of habeas corpus—or rather, the Right To Petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most Civil Law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."http://www.constitution.org/cmt/avd/law_con.htm The writ of habeas corpus is one of what are called the "extraordinary", "common law", or " Prerogative Writ s", which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are '' Quo Warranto '', '' Prohibito '', '' Mandamus '', '' Procedendo '', and '' Certiorari ''.http://www.constitution.org/writ/writs.htm The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority,http://www.constitution.org/9ll/schol/pnur.htm so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing. DERIVATION AND FORM The writ of habeas corpus is often referred to in full in legal texts as ''habeas corpus ad subjiciendum'' or more rarely '''''ad subjiciendum et recipiendum'''''. The name derives from the operative words of the writ in Medieval Latin:
The word ''habeas'' in the writ is not in the indicative mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): ""We command ''that you have'' ...". The full name of the writ is often used to distinguish it from similar ancient writs:
That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples:
HISTORY OF HABEAS CORPUS IN ENGLAND Blackstone cites the first recorded usage of ''habeas corpus ad subjiciendum'' in 1305 , during the reign of King Edward I . However, other Writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying: The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679 , following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus. Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in '' Somersett's Case '' (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case ): The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World War s and the Troubles in Northern Ireland , the procedure of habeas corpus has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act Of Parliament , the petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights Act 1998 , the courts have been able to declare an Act of Parliament to be incompatible with the European Convention On Human Rights . However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government. The wording of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or Bail ed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for Judicial Review , and individuals held by non-state entities to apply for an Injunction . UNITED STATES See Also: Habeas corpus in the United States The United States Constitution specifically included the English Common Law procedure in the Suspension Clause , located in Article One , Section 9. It states: The writ of ''habeas corpus ad subjiciendum'' is a civil, not criminal, proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau Of Immigration And Customs Enforcement pursuant to a deportation proceeding. Scope The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch Of The Federal Government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:
In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ. However, in the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism And Effective Death Penalty Act Of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action. Suspension during the Civil War and Reconstruction On April 27 , 1861 , habeas corpus was suspended by President Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War . Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C. , surrounded by hostile territory. Lincoln was also motivated by requests by generals to set up military courts to rein in " Copperheads " or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney ) in '' Ex Parte Merryman '', 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession. In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In '' Ex Parte Milligan '' 71 U.S. 2 (1866), the Supreme Court of the United States decided that it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases Of The American Civil War that dealt with wartime civil liberties and martial law. In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act . Suspension in the United States in 1990s and 2000s In 1996 , following the Oklahoma City Bombing , Congress passed (91-8-1 in the Senate, 293-133-7 in the House) and President Clinton signed into law the Antiterrorism And Effective Death Penalty Act Of 1996 (AEDPA). The AEDPA was to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes." The AEDPA contained the first limitations on habeas corpus since the Civil War. For the first time, its Section 101 set a Statute Of Limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It absolutely barred second or successive petitions. Petitioners who had already filed a federal habeas petition were required to first secure authorization from the appropriate United States Court of Appeals, and the AEDPA took away from the Supreme Court the power to review a court of appeals' denial of that permission, thus placing final authority for the filing of second petitions in the hands of the federal courts of appeals. The November 13, 2001, Presidential Military Order gave the President Of The United States the power to detain a non-citizen suspected of connection to terrorists or terrorism as an Unlawful Combatant . As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus and the United States Bill Of Rights . In '' Hamdi V. Rumsfeld '', 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared Enemy Combatant s. In '' Hamdan V. Rumsfeld '', 548 U.S. ___ (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the Military Commission s set up by the Bush Administration to try Detainees At Guantánamo Bay “violate both the Uniform Code Of Military Justice and the four Geneva Conventions .” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay . Congress had previously passed the Department Of Defense Appropriations Act, 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”: :“(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba. :“(2) The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination … was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” | |||
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