What is a Writ of Habeas Corpus

The literal meaning is “may you have the body” or as from one of my law professors, “show me the body”. The Writ of Habeas Corpus Act was a result of the British Parliament in 1640. Those that were imprisoned by the King, privy council or other councilor had a right to have the true cause for their imprisonment to be certified. The words of commencement were repealed in 1948 and the whole Act in 1968. Habeas corpus ad subjiciendum, was first recorded in British law in 1305. Subsequent laws in 1640 and 1679 overturned the King’s command that his reason for imprisonment was sufficient as an answer to a Writ of Habeas Corpus. The “body” referred to is the (living) prisoner and not a reference to showing the Court a body of someone killed by the prisoner.

The United States Constitution, Article I, Section Nine in part reads, “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”. Article I, as you will recall has to do with limits on Congressional powers.

The first time that Habeas Corpus was suspended was in April, 1861 which was done so by President Abraham Lincoln and not by Congress. Lincoln chose to order such regarding a specific railroad route which was an important supply line for the Union. Some of his generals were also pushing Lincoln so as to reign in the Peace Democrats and northerners sympathetic to the Confederate cause. Lincoln’s suspension was challenged in the U.S. Circuit Court in Maryland and overturned.

Nevertheless, Lincoln’s attorney general; chose to ignore the ruling of the Federal Court and continue suspension of habeas corpus.

Lincoln freed most of the prisoners in February 1862, ending most of the contests but then again suspended it in September 1862. In December 1862 the House of Representatives met and passed a bill indemnifying Lincoln for his suspension. The U.S. Senate amended and passed the bill, then known as “The Habeas Corpus Suspension Act” which was signed into law in March 1863. Lincoln continued to use the suspension throughout the Was Between the States in arresting suspected spies, traitors, prisoners of war and military personnel. Union General Burnside had former Congressman, Clement Vallandigham arrested because he publicly expressed Confederate sympathies after being told to stop such verbal expressions. He was sentenced in a military Court to two years in prison but Lincoln commuted his sentence, instead banishing Vallandigham to the Confederate States of America. The suspension of habeas corpus remained in effect until December 1st of 1865 when then President Andrew Johnson revoked the Act.

Habeas corpus was also suspended during Reconstruction by the Federal Government in dealing with such groups as the Ku Klux Klan and later in the early 1900’s in the Philippines. During World War II, Habeas Corpus was suspended in Hawaii following the Japanese attack and not re instituted until 1944. At that time the huge threat that once existed in Hawaii had receded and civilian Courts could once again function.

Also during World War II, the suspension was considered twice involving Germans. In 1942, German saboteurs and two associated Americans were not afforded the right and the United States Supreme Court ruled that a military tribunal had

jurisdiction over the unlawful combatants. At the end of the War, German prisoners imprisoned in Germany petitioned for habeas corpus and were rejected because they had been captured in Germany and were never on United States soil.

Since the war on terror there have been cases of suspension of habeas corpus. These cases have revolved around unlawful enemy combatants and attacks against Americans where the cases should instead be heard by military tribunals.

In post trial appeals, habeas corpus is often used in the context that either a Constitutional right has been violated or that the trial attorney was ineffectual or incompetent. Generally, twenty-seven percent of these cases that bring up habeas

corpus are from those detained that have committed serious but non-violent crimes and twelve percent are other crimes. The remaining sixty-one percent of cases that use habeas corpus on appeal are serious violent crimes involving the death penalty, life in prison or long sentences. Habeas corpus is a long shot appeal in that about sixty- three percent are dismissed on procedural issues, about thirty-five percent on the merits of the case and only about two percent of the cases are sent back to the lower court to reconsider based on the appellate ruling. If you wonder why it takes so long to actually execute a convicted murderer, it generally takes about two and a half years just to consider habeas corpus on appeal in a death sentence.

Habeas corpus, maybe not a right that works well in the expeditious

prosecution of suspected criminals, but a needed right to help protect otherwise innocent individuals who deserve the right to know what crime they have been charged with and not just to rot behind bars.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist. "No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Ronald A. Holtsford, Esq.

Ronald A. Holtsford, LLC

7956 Vaughn Road, Box #124

Montgomery, AL 36116

(334) 220-3700 - raholtsford@aol.com