What Is a Writ of Habeas Corpus?

Habeas Corpus
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Convicted criminals who believe they have been wrongly imprisoned, or that the conditions in which they are being held fall below legal minimum standards for humane treatment, have the to right seek the assistance of a court by filing for a “writ of habeas corpus.”

Habeas Corpus: Basics

A writ of habeas corpus—which literally means to “produce the body”—is an order issued by a court of law to a prison warden or law enforcement agency holding an individual in custody. It requires that they deliver that prisoner to the court so a judge can decide whether that prisoner had been lawfully imprisoned and, if not, whether they should be released from custody.

To be considered enforceable, the writ of habeas corpus must list evidence showing that the court that ordered the prisoner’s detention or imprisonment had made a legal or factual error in doing so. The writ of habeas corpus is the right bestowed by the U.S. Constitution to individuals to present evidence to a court showing that they have been wrongly or illegally imprisoned.

Though separate from the constitutional rights of defendants in the U.S. criminal justice system, the right to the writ of habeas corpus gives Americans the power to keep the institutions that might imprison them in check.

In some countries without habeas corpus rights, the government or the military often jail political prisoners for months or even years without charging them with a specific crime, access to a lawyer, or means of challenging their imprisonment.

Writ of habeas corpus is different from a direct appeal, and it is usually only filed after a direct appeal of conviction has failed.

How Habeas Corpus Works

Evidence is presented from both sides during a court hearing. If not enough evidence is found in the inmate's favor, the person is returned to prison or jail as before. If the inmate provides sufficient evidence for the judge to rule in their favor, they could:

  • Have charges dismissed
  • Be offered a new plea deal
  • Be granted a new trial
  • Have their sentence reduced
  • Have their prison conditions improved


While the right to writs of habeas corpus is protected by the Constitution, its existence as a right of Americans dates back long before the Constitutional Convention of 1787.

Americans actually inherited the right of habeas corpus from English common law of the Middle Ages, which granted the power to issue writs exclusively to the British monarch. Since the original 13 American colonies were under British control, the right to a writ of habeas corpus applied to the colonists as English subjects.

Immediately following the American Revolution, America became an independent republic based on “popular sovereignty,” a political doctrine that the people who live in a region should determine the nature of their government themselves. As a result, every American, in the name of the people, inherited the right to initiate writs of habeas corpus.

Today, the “Suspension Clause”—Article I, Section 9, clause 2—of the U.S. Constitution, specifically includes the habeas corpus procedure, stating,

“The 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.”

The Great Habeas Corpus Debate

During the Constitutional Convention, the failure of the proposed Constitution to ban the suspension of the right to a writ of habeas corpus under any circumstances, including “rebellion or invasion,” became one of the delegates’ most hotly debated issues.

Maryland delegate Luther Martin passionately argued that the power to suspend the right to writs of habeas corpus could be used by the federal government to declare any opposition by any state to any federal law, “however arbitrary and unconstitutional” it might be, as an act of rebellion.

However, it became apparent that a majority of the delegates believed that extreme conditions, such as war or invasion, could justify the suspension of habeas corpus rights.

In the past, both presidents Abraham Lincoln and George W. Bush, among others, have suspended or attempted to suspend the right to writs of habeas corpus during times of war.

President Lincoln temporarily suspended habeas corpus rights during the Civil War and Reconstruction. In 1866, after the end of the Civil War, the U.S. Supreme Court restored the right of habeas corpus.

In the 1861 court case of Ex parte Merryman, Chief Justice Roger Taney challenged President Lincoln’s act vigorously arguing that only Congress had the power to suspend the right to writs of habeas corpus. Sitting as a federal circuit court judge, Taney issued a writ of habeas corpus on the grounds that Merryman was illegally detained. While Lincoln ignored the court order, modern legal opinion appears to support Taney’s view.

In reaction to the terrorist attacks of September 11, 2001, President George W. Bush suspended the habeas corpus rights of detainees being held by the U.S. military at Guantanamo Bay, Cuba naval base. The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) further narrowed the scope of habeas relief by providing that prisoners held in Guantanamo Bay may not access the federal courts through habeas corpus, but must first go through the military commission's process and then seek an appeal in the D.C. Circuit Court. However, the Supreme Court in the 2008 case of Boumediene v. Bush expanded the territorial jurisdiction of habeas corpus, ruling that the Suspension Clause affirmatively guaranteed the right to habeas review. Thus, alien detainees designated as enemy combatants who were held outside the United States had the constitutional right to habeas corpus.

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Longley, Robert. "What Is a Writ of Habeas Corpus?" ThoughtCo, Aug. 3, 2021, thoughtco.com/about-the-writ-of-habeas-corpus-3322391. Longley, Robert. (2021, August 3). What Is a Writ of Habeas Corpus? Retrieved from https://www.thoughtco.com/about-the-writ-of-habeas-corpus-3322391 Longley, Robert. "What Is a Writ of Habeas Corpus?" ThoughtCo. https://www.thoughtco.com/about-the-writ-of-habeas-corpus-3322391 (accessed June 1, 2023).