How to Use the Concept of Habeas Corpus

The right to use the privilege of habeas corpus is a central concept in our democracy, and we should know how it is applied. The idea that governments should not be able to jail citizens without reason was first proposed in the Magna Carta, signed by King John of England in 1215. The first petition habeas corpus ad subjiciedum (a command to have the body of a subject) was delivered in 1305 during the reign of Edward I. By the time the colonies were founded in the New World, the privilege of habeas corpus was a recognized concept in common law and was among the rights at issue when the Declaration cited the "long Train of Abuses and Usurpations" that had brought otherwise sensible English citizens to the brink of revolution. The founders of the new United States felt that it was important enough to be included in the Bill of Rights added to the U.S. Constitution in 1787.

Instructions

Difficulty: Moderate

1. Habeas corpus means, loosely, "give me the body." The concept is that no one may be imprisoned without knowing the charges against him. If he is, he may petition the court for release based on the failure of the state to charge him with some crime. Court cases over the history of the United States have further defined this privilege guaranteed by the U.S. Constitution in Article I, section 9.
2. Whenever a writ of habeas corpus is filed, a prisoner must be brought to court and charged with a crime in order that the imprisonment may continue. This is most obvious in the case of someone who is arrested and put in a "holding cell" or jail until a judge is available. Any person who is held beyond a certain time (generally 48 to 72 hours) must be charged with a crime or released.
3. If a person is detained by the police, the concept of habeas corpus requires that she must be informed that she is being arrested or allowed to go on her way. Court cases (known as "precedent") have determined that detaining a citizen by taking her to a police station or keeping her standing for an unreasonable amount of time (for example, while another officer checks to see if there's anything in the back of the car) during a traffic stop are, in reality, arrests and the subject must be notified that she is under arrest before any questioning can continue.
4. The privilege of habeas corpus also permits petitions to "re-open" cases that have been adjudicated. This most frequently happens in death penalty cases and is based on the Eighth Amendment prohibition of cruel and unusual punishment or on some Fifth Amendment violation. The privilege also extends, however, to defendants in other courts. For example, suspension of a driver's license could be considered a cruel punishment if it meant loss of livelihood (job). A defendant may ask to have a case re-opened in municipal traffic court because of this scenario, to challenge the jurisdiction of the court or even because he has not fully understood the consequences of not showing up for court. These motions to re-open are most often granted in deference to the concept of habeas corpus.
5. The constitution allows for suspension of habeas corpus only when "Cases of Rebellion or Invasion the public Safety may require it". This section has been used several times; most notably during the Civil War in Lincoln's use of military courts (see ex parte Merryman, 1861 and ex parte Milligan, 1866) and in World War II (see ex parte Quirin and Johnson v. Eisentrager). It is these later cases from which the Military Commissions Act of 2006 drew some of its reasoning. The Antiterrorism and Effective Death Penalty Act of 1996 limited the use of a habeas corpus petition in death penalty cases where terrorism was involved.

Tips & Warnings

• When you think about civil rights, it's always wise to think about them from your point of view rather than as rights claimed by someone else, say a career criminal. This is because 1) there are many more people who live their lives the way you do than there are career criminals and 2) because the U.S. Constitution demands that all citizens are "equal before the law", meaning that the law must apply equally to all citizens.
• The right of habeas corpus is a hotly contested principle in today's legal environment. Rather than recommend any articles, the author prefers to suggest that the reader search, using "habeas corpus." The balanced article from Lectric Law Library cited below is a good place to start.
• The privilege of habeas corpus is one of the most basic and precious rights of free citizens. As voters, we must let our representatives know how we feel about it or accept the consequences of its limitation.