Since there are so many law and criminal show on television today, most people probably have hear the term, “Habeas Corpus,” but not many really know what it means. After reading this article, you will know what it means, and why it is used.

Habeas Corpus is one of the oldest kinds of court actions and it goes far back into English law. It is recognized and guaranteed in the U.S. Constitution:

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, Section 9, U.S. Constitution

A Habeas corpus action is started by a prisoner, or detainee, filing a petition, asking for relief. The matter complained about must be the legality of imprisonment, or detention. The relief sought is release from illegal confinement. The petition should be filed against the person or authority who is the official custodian. The person filing the paper is called a petitioner; the warden or superintendent is called the respondent in the case.

The court will then order the respondent to show cause why a writ of habeas corpus should not issue why the prisoner should not be released. Habeas corpus is regarded as an urgent legal action the response by the custodian is usually required in a very short time, usually 10 days or less and all actions by the court should be taken in a prompt manner. Habeas corpus actions are treated as emergency matters, and as such go to the top of court dockets, ahead of other types of civil cases.

After an attorney for the custodian responds, the court may dismiss the petition, hold a hearing to obtain more information, or grant the request and issue a writ. Only courts can issue writs.

Habeas corpus is Latin for “have the body.” It is an order directed to the person with custody, commanding him to “have,” or produce, the body of the person who is in custody before the court.

There are actually several types of habeas corpus, and all of them have Latin names. The most common is the writ of habeas corpus ad subjiciendum, produce the body. Two other types are brought up occasionally in corrections and those are habeas corpus ad prosequendum, this writ is written by the court to bring the prisoner to court for purposes of prosecution. Habeas corpus ad testificandum is an order to bring a prisoner to court to give evidence in a court case. Some courts still use these kinds prisoner to court to give evidence in a court case, although, as time goes by, the courts are using these terms less and less.

There are provisions for federal prisoners to seek habeas corpus relief. This is found under Title 28, U.S. Code, Section 2241. There is also authority for federal courts to consider applications from state prisoners for release under Title 28, U. S. Code, Section 2254. However, this section provides that federal habeas corpus relief is only available if the petitioner has exhausted the remedies that are available for such relief in the state where he/she is confined or detained.

Because all states also have provisions for habeas corpus review by state courts, there are few state prisoners who can win release from custody through federal habeas corpus actions. As a general rule, federal courts are not quick to jump into habeas matters involving state prisoners, but defer to the states to take care of such problems in their own courts, as the federal law contemplates.

This information is for informational and educational purposes only, and is not intended to take the place of an attorney or legal counsel.  Please consult directly with an attorney for any legal questions you may have.