Habeas Corpus, Writ of

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HABEAS CORPUS, WRIT OF, is a legal procedure by which a court inquires into the lawfulness of a person's confinement. It takes the form of an order from a court or judge requiring the custodian to produce the prisoner in court for a judicial investigation into the validity of the detention. In the words of Chief Justice John Marshall, "The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment" (Ex Parte Watkins, 1830).

Habeas corpus is celebrated as "the great writ of liberty," and has a special resonance in Anglo-American legal history, because the availability of the procedure means that if an individual is found to have been imprisoned illegally the court can release him or her, thus enforcing the rule of law and frustrating governmental oppression. "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" (Fay v. Noia, 1963).

The use of the writ against the Crown can be traced to the fifteenth century, with the judges drawing their authority both from the common law and from statutes. The most significant English legislation was the Habeas Corpus Act of 1679, which was widely copied throughout the American colonies and remained influential well into the nineteenth century. All states today retain the procedure in one form or another. Reflecting the importance attached to the writ, the U.S. Constitution (Article 1, section 9, clause 2) forbade its suspension "unless when in Cases of Rebellion or Invasion the public Safety may require it," and the Judiciary Act of 1789 authorized the federal courts to issue it. Pursuant to this authority, the early Supreme Court ordered the release of prisoners taken during the Whiskey Rebellion (United States v. Hamilton, 1795) of an individual detained in the District of Columbia for no better reason than that "he was an evil doer and disturber of the peace" (Ex Parte Burford, 1806), and of two of Aaron Burr's alleged coconspirators who had been arrested by the army (Ex Parte Bollman, 1807).

While there have been limited suspensions of the writ on several occasions, the most widespread occurred during the Civil War under orders from President Abraham Lincoln, for which he subsequently received congressional authority. In 1867, the Reconstruction Congress passed a statute explicitly authorizing the federal courts to adjudicate petitions filed by state prisoners asserting that they were being held "in custody in violation of the Constitution or law or treaties of the United States." The current federal habeas corpus statutes (28 U.S. Code, sections 2241, 2254) are direct descendants of the 1867 act.

Like other Reconstruction legislation, the act was narrowly construed by the Supreme Court during the last decades of the nineteenth century. This attitude under-went a change in the first quarter of the twentieth century, as exemplified by Moore v. Dempsey (1923), in which the Supreme Court held that the writ should issue to investigate allegations by black petitioners that their state convictions for murder in the wake of a massive race riot in Phillips County, Arkansas, had been procured by egregious government misconduct, including physical torture.

While the Supreme Court broadened its recognition of substantive constitutional rights against the states during the second half of the twentieth century, the occasions for the use of the writ of habeas corpus in federal court by state prisoners increased, especially in criminal cases. As a result, there were a number of unsuccessful efforts through the 1940s and 1950s to amend the federal statute so as to limit the writ's availability. Such proposals reappeared frequently during the 1970s and 1980s. In 1996, following the bombing of a federal building in Oklahoma City, Congress passed the Anti-Terrorism and Effective Death Penalty Act. This act rewrote the procedural rules governing the writ in an effort to speed up judicial proceedings, particularly in capital cases. Interpretations of the statute by the Supreme Court during the first five years of its effectiveness reflected the view that these changes were not, however, intended to work any fundamental changes in the scope of the rights that prisoners could vindicate through the writ. For example, in the case of Immigration and Naturalization Service v. St. Cyr (2001), the Court ruled that the act did not repeal habeas jurisdiction over immigrants confined pending deportation.


Freedman, Eric M. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York University Press, 2001.

Liebman, James S., and Randy Hertz. Federal Habeas Corpus Practice and Procedure. 4th ed. Charlottesville, Va.: Lexis Law Publishing, 2002.

Eric M.Freedman

See alsoConstitution of the United States .