About the Writ of Habeas Corpus

Sculpture of the Scales of Justice
The Scales of Justice. Dan Kitwood/Getty Images News

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 right seek the assistance of a court by filing an application for a “writ of habeas corpus.”

A writ of habeas corpus -- literally meaning 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 to deliver that prisoner to the court so a judge can decide whether or not that prisoner had been lawfully imprisoned and, if not, whether he or she should be released from custody.

In order to be considered enforceable, the writ of habeas corpus must list evidence showing that the court that had 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 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.

Where the Right or Writ of Habeas Corpus Comes From

While the right to writs of habeas corpus is protected by the Constitution, its existence as a right of Americans dates back long 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 thirteen American colonies were under British control, the right to 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 Constitutions to ban the suspension of the right to 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 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 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. However, the Supreme Court overturned his action in the 2008 case of Boumediene v. Bush.