Habeas Corpus

Habeas Corpus The “Great Writ” of habeas corpus is available so that a judge may inquire into the legality of any form of loss of personal liberty. Detention, or loss of personal liberty, may occur at all levels of government, and may take various forms: incarceration in some sort of jail or penitentiary pursuant to a court judgment, detention in a police station after an arrest, commitment in a mental institution, service in the armed forces, detention on the basis of quarantine regulations, or restraint by private authority, as in the case of spouses or the custody of minors.

Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed its disapproval of multiple application for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called “the most important human right in the Constitution,” Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as “the best and only sufficient defense of personal freedom” (p. 95).

The historical roots of the Great Writ are not clear, but it is usually ascribed to section 39 of Magna Carta (1215). During the Middle Ages the writ had various uses. For example, it could be used to compel a person to appear in court to give testimony. As a remedy against the Crown (that is to say, the government), its availability dates from the end of the fifteenth century. The essential elements of the writ as it is now generally understood were spelled out by Parliament in the Habeas Corpus Act of 1679. In the American colonies the writ was available as part of the common law. After independence, habeas corpus was guaranteed in most of the early state constitutions. The U.S. Constitution, in Article I, section 9, forbids suspension of the writ “unless when in Cases of Rebellion or Invasion the public Safety may require it.” The very first statute enacted by the First Congress, the Judiciary Act of 1789, empowered all federal courts “to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” All states have similar statutes.

The writ orders the person who is responsible for the detention—for example, the warden or jailer—to produce the petitioner (that is, the body, or corpus) quickly, in court, so that a judge may decide the lawfulness of the detention. Neither federal nor state habeas corpus statutes attempt to define just what constitutes an unlawful detention; they merely provide for a procedure by which a judge may look into the matter. However, as Justice William J. Brennan pointed out in Fay v. Noia (1963):
Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. (pp. 401–402)

While historically the writ was mainly concerned with jurisdictional matters, legislative bodies and courts have gradually broadened its reach.

Congress in 1867 enacted a habeas corpus statute that authorized the writ whenever any person is restrained or deprived of liberty in violation of any federal right, that is, any right guaranteed by the Constitution, acts of Congress, or treaties. The Due Process Clause of the Fourteenth Amendment has been construed to secure the right to a fair hearing, thus providing a very broad ground for granting the writ. A state prisoner is not eligible to apply to a federal judge for habeas corpus until first exhausting all remedies available under state law. Similarly, a member of the armed forces may not sue for the writ in a federal court until the remedies provided for in the military court system have been exhausted (see Exhaustion of Remedies).

President Abraham Lincoln suspended habeas corpus at the beginning of the Civil War, but Chief Justice Roger B. Taney protested that only Congress may do so (Ex parte Merryman, 1861). Soon afterward, however, Congress validated the president's suspension. Pursuant to statute, later presidents invoked limited suspensions in 1871 and 1905. A presidential suspension in Hawaii in 1941, however, which was performed without statutory authorization, was ruled illegal by the Supreme Court in Duncan v. Kahanamoku (1946).

The granting of habeas corpus writs by federal courts to state prisoners has been resented by many state authorities. Perhaps this explains why, in Stone v. Powell (1976), the Supreme Court, by a vote of 6 to 3, held that where a state prisoner has had a chance to litigate a Fourth Amendment search and seizure claim fully and fairly in the state courts, that prisoner is not also entitled to consideration by a federal habeas corpus court if the allegation that evidence was received by an illegal search and seizure was introduced at the prisoner's trial. The Court majority argued that the possible deterrent effect on unlawful police conduct was outweighed by the detriment to the criminal justice system resulting from the reexamination by the federal court of an issue already settled by the state courts. In dissent, Justice Brennan protested that this ruling portended “substantial evisceration of federal habeas corpus jurisdiction” (p. 503). Subsequent decisions have not, however, seemed to justify this dire prophecy.

Bibliography

David Fellman , The Defendant's Rights Today (1976).

David Fellman