{"id":2815,"date":"2015-03-31T03:57:23","date_gmt":"2015-03-31T03:57:23","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=2815"},"modified":"2018-03-12T18:42:18","modified_gmt":"2018-03-12T18:42:18","slug":"habeas-corpus-release-a-person-from-custody-of-the-state-federal-or-military-prison-if-their-right-has-been-violated","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=2815","title":{"rendered":"writ of habeas corpus – command that a prisoner (or detainee or probatee) be brought before the court to challenge the legality of their custody and demand their release"},"content":{"rendered":"

\u00a0 \u00a0 \u00a0This page contains legal & historical information, including<\/em> applicable Supreme Court rulings, followed by<\/em> the official U.S. Courts<\/a> forms<\/em> needed to file Writs of Habeas Corpus. \u00a0Need more info? \u00a0See –\u00a0what is a writ?<\/a><\/em><\/strong><\/span><\/p>\n

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writ of habeas corpus<\/span><\/span><\/strong><\/span>:<\/span>
\n[Law Latin ‘that you have the body’]<\/span>
\n(18c.)<\/span><\/p>\n

1. A writ employed to bring a person before a court, most frequently to ensure that the person\u2019s\u00a0imprisonment or detention is not illegal (habeas corpus ad subjiciendum). In addition to\u00a0being used to test the legality of an arrest or commitment, the writ may be used to obtain\u00a0judicial review of<\/span><\/strong><\/span><\/p>\n

1.) the regularity of the extradition process<\/span><\/strong><\/span>
\n 2.) the right to or amount of bail<\/span><\/strong><\/span>
\n 3.) the jurisdiction of a court that has imposed a criminal sentence.<\/strong> <\/span><\/p>\n

\u2014 Abbr. H.C.<\/strong><\/em>\u00a0\u2014\u00a0 Sometimes shortened to habeas<\/span><\/strong><\/em>. \u2014 aka habeas corpus<\/span><\/strong><\/em>; great <\/span><\/strong><\/em><\/span>writ<\/span><\/strong><\/em>. [1]
\n<\/span><\/p>\n

1. A high prerogative writ of ancient origin, the vital purposes of which are to obtain immediate relief from illegal confinement; to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody; or to obtain a proper custody of persons illegally detained from the control of those who are entitled to the custody of them. 25 Am J1st Hab C \u00a7 2<\/span>.<\/span><\/strong><\/p>\n

A generic term in one sense being applicable to each of several different writs, but as used generally, referring to the writ of habeas corpus ad subjiciendum. 25 Am J1st Hab C \u00a7 2<\/span>.<\/strong> [2]<\/span><\/p>\n

1. Means “you have the body.”\u00a0 A writ whose purpose is to obtain immediate relief from illegal imprisonment by having the “body” (that is, the prisoner) delivered from custody and brought before the court.\u00a0 A writ of habeas corpus is a means or attacking the constitutionality of the statute under which, or the proceedings in which, the original\u00a0 conviction was obtained.\u00a0 There are numerous writs of habeas corpus, each applicable in different procedural circumstances.\u00a0 The full name of the ordinary writ of habeas corpus is habeas corpus ad subjiciendum<\/em>. <\/strong>[3]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from\u00a0Charles Alan Wright, The Law of Federal Courts<\/em><\/a> 5 53, at 350 (5th ed. 1994) (quoting Secretary of State for Home\u00a0<\/span><\/strong>Affairs v. O\u2019Brien, [1923] AC, 603, 609):<\/strong><\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201c<\/span>The writ of habeas corpus, by which the legal authority\u00a0<\/span><\/strong>under which a person may be detained can be challenged, is of\u00a0<\/strong>immemorial antiquity. After a checkered career in which it was\u00a0<\/strong>involved in the struggles between the common-law courts and\u00a0<\/strong>the Courts of Chancery and the Star Chamber, as well as in the\u00a0<\/strong>conflicts between Parliament & the crown, the protection of the\u00a0<\/strong>writ was firmly written into English law by the Habeas Corpus<\/strong><\/span><\/span>
\nAct of 1679. Today it is said to be \u2018perhaps the most important\u00a0<\/strong><\/span>writ known to the constitutional law of England….<\/span>\u201d<\/strong><\/span><\/p>\n

Types of Habeas Corpus:<\/strong><\/span><\/p>\n

habeas corpus ad deliberandum et recipiendum<\/em><\/span> –<\/span><\/strong><\/span> [Law Latin ‘that you have the<\/span><\/span>
\n body to consider and receive’] (17c.) Hist<\/em>. A writ used to remove a person for\u00a0<\/strong><\/span>trial from one county to the county where the person allegedly committed the\u00a0<\/span><\/strong><\/span><\/span>offense.<\/strong> Cf. EXTRADITION. [1]\u00a0 1. A writ of habeas corpus which issues where it is necessary to remove a prisoner in order that he may be tried in the proper jurisdiction \u2014 namely, that wherein the act was committed. 25 Am J1st Hab C \u00a7 4<\/span>.\u00a0 <\/strong>[2]<\/span><\/p>\n

habeas corpus ad faciendum et recipiendum<\/em><\/span> – <\/span><\/strong><\/span>[Law Latin ‘that you have the<\/span><\/span> body to do and receive’] (17c.) Hist<\/em>. A writ used in civil cases to remove the\u00a0<\/strong><\/span>case, and also the body of the defendant, from an inferior court to a superior court.<\/strong><\/span><\/span> \u2014 aka habeas corpus cum causa<\/span><\/strong><\/em>. [1]\u00a0 1. A common writ of habeas corpus which issues where a person is sued and arrested in some inferior jurisdiction and is desirous of removing the action into a superior court, commanding the inferior judges to produce the body of the defendant and to state the day and cause of his caption and detainer. 25 Am J1st Hab C \u00a7 4<\/span>. <\/strong>[2]
\n<\/span><\/span><\/p>\n

habeas corpus ad prosequendum<\/em><\/span> –<\/span><\/strong><\/span> [Law Latin ‘that you have the body to\u00a0<\/span><\/span>prosecute’] (1865) A writ used in criminal cases to bring before a court a prisoner\u00a0<\/strong><\/span>to be tried on charges other than those for which the prisoner is currently being\u00a0<\/strong><\/span>confined. <\/strong>[1]\u00a0 1. A writ of habeas corpus which issues for the purpose of removing a prisoner in order to prosecute him in the proper jurisdiction, namely, that wherein the act was committed, or to enable him to become the prosecuting witness in a criminal case. 25 Am J1st Hab C \u00a7 4<\/span>. <\/strong>[2]
\n<\/span><\/span><\/p>\n

habeas corpus ad respondendum<\/em><\/strong><\/span> – <\/span><\/span>[Law Latin ‘that you have the body to<\/span><\/span> respond’] (17c.) Hist<\/em>. A writ used in civil cases to remove a person from one\u00a0<\/strong><\/span>court\u2019s custody into that of another court, in which the person may then be sued. <\/strong>[1]\u00a0 1. A writ of habeas corpus which issues where one has a claim against another, who is in custody under process of an inferior court, in order to remove the prisoner and prefer the claim against him in the higher court. 25 Am J1st Hab C \u00a7 4<\/span>. <\/strong>[2]
\n<\/span><\/span><\/p>\n

habeas corpus ad satisfaciendum<\/em><\/strong><\/span> – [Law Latin ‘that you have the body to make\u00a0<\/span><\/span>amends’] (17c.) English law<\/em>. In England, a writ used to bring a prisoner against<\/strong><\/span>
\n whom a judgment has been entered to some superior court so that the plaintiff can\u00a0<\/strong><\/span>proceed to execute that judgment. <\/strong>[1]\u00a0 1. A writ of habeas corpus which issues where a prisoner has had judgment against him in an action, and the plaintiff is desirous of bringing him up to some superior court to charge him with process of execution. 25 Am J1st Hab C \u00a7 4<\/span>.\u00a0 <\/strong><\/span><\/span><\/p>\n

The writ is not available in the United States, because here one court never awards execution on the judgment of another. 25 Am J1st Hab C \u00a7 4<\/span>. <\/strong>[2]
\n<\/span><\/span><\/p>\n

habeas corpus ad subjiciendum<\/em><\/strong><\/span> – <\/strong>[Law Latin ‘that you have the body to submit\u00a0<\/span><\/span>to’] (17c.) A writ directed to someone detaining another person and commanding\u00a0<\/strong>that the detainee be brought to court.<\/strong> \u2013 Usually shortened to habeas corpus<\/em><\/strong><\/span>. [1]\u00a0 1. The ordinary writ of habeas corpus. <\/strong>[2]
\n<\/span><\/span><\/span><\/p>\n

habeas corpus ad testificandum<\/em><\/strong><\/span> – [Law Latin ‘that you have the body to testify’]\u00a0<\/span><\/span>(17c.) Hist<\/em>. A writ used in civil and criminal cases to bring a prisoner to court to testify. <\/strong>[1]\u00a0 1. A writ of habeas corpus, although not a high prerogative writ, its issuance lying in the sound discretion of the court, which issues to remove a prisoner in order for him to bear testimony. 25 Am J1st Hab C \u00a7 4<\/span>. <\/strong>[2]
\n<\/span><\/p>\n

Habeas Corpus Act<\/span> – <\/span><\/strong><\/span>1. One of the four great charters of English liberty<\/strong> (31 Car. 2,\u00a0<\/span>1679), securing to English subjects speedy relief from all unlawful imprisonments.<\/strong> The<\/span><\/span> other three great charters are Magna Carta<\/em><\/strong>, the Petition of Right (3 Car. 1, 1628<\/span>)<\/strong><\/em>, and the\u00a0<\/span>Bill of Rights (1 Wm. 81 M. 1689<\/span>)<\/strong><\/em>. The Habeas Corpus Act does not apply in Scotland;\u00a0<\/span>the corresponding statute is the Criminal Procedure Act of 1701, ch. 6<\/em>.\u00a0 2. A statute\u00a0<\/strong><\/span>deriving ultimately from the English statute and enacted in the United States as a\u00a0<\/span>constitutional guarantee of personal liberty. <\/span><\/strong>[1]\u00a0 1. An English statute (31 Car. II<\/span>) passed to remedy a condition of indifference or disregard of the rights of the people which had through royal influence and other causes reached the point where the common law writ became so little respected that it no longer afforded real or substantial benefits to English subjects.<\/strong>
\n<\/span><\/span><\/p>\n

The act had the desired effect, although it introduced no new principle, conferred no right upon the subject and made no change in the practice of the court in granting the writ, but it did correct certain imperfections of the common law writ and tended to make the prisoner’s remedy a speedy one. 25 Am J1st Hab C \u00a7 6<\/span>.<\/strong> [2]<\/span><\/p>\n

About:<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The Writ of Habeas Corpus, or “Great Writ,” commands an individual or a government official who has restrained another to produce the prisoner at a designated time & place so the court can determine the legality of custody & decide whether to order the prisoner’s release.<\/strong><\/span><\/p>\n

\u00a0 \u00a0 The writ directs a person, usually a prison warden, to produce the prisoner & justify the prisoner’s detention. \u00a0If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner’s release. \u00a0Habeas corpus relief may be used:<\/strong><\/span><\/p>\n