The Writ of Habeas Corpus

Habeas corpus is a way for prisoners to challenge their convictions or conditions of confinement.

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Defendants who want to challenge the legality of their imprisonment—or the conditions in which they are being imprisoned—may seek help from a court by filing what is known as a petition for writ of habeas corpus. (Habeas corpus means “you have the body.”)

A writ of habeas corpus is a court order to a person (such as a prison warden) or agency (such as a penal institution) holding someone in custody to deliver the prisoner to the court (it doesn’t necessarily mean that the prisoner gets out of jail, though). Many state constitutions provide for this writ, as does the U.S. Constitution, which specifically forbids the government from suspending writ proceedings except in extraordinary times, like war. (U.S. Constitution, Article 1, § 9(2).)

Known as “The Great Writ,” habeas corpus gives citizens the power to get help form courts to keep government and prisons and similar institutions in check. In many countries, police and military personnel, for example, may lock people up for months—even years—without charging them; those imprisoned have no legal channel by which protest or challenge the imprisonment. The writ of habeas corpus provides a vehicle for prisoners to ask courts to set them free or rectify conditions of imprisonment (for example, inadequate medical treatment). It thereby ensures that people in this country won’t be held for long periods in prison without justification—or with justification, but without proper care. Of course, the right to ask for relief is not the same as the right to get it: Courts can be very stingy in granting it.

EXAMPLE: Defendant Ed Ippus was convicted of murder. He contends that the only reason he was convicted was that his attorney, Johnny Baily, was incompetent. Ippus claims that Baily came to court drunk every day during the trial, thus depriving the client of the Sixth Amendment right to effective assistance of counsel. Ed can petition for a writ of habeas corpus to ask a court to consider this argument even though the trial court transcript doesn’t reveal that Baily was intoxicated. In response to the petition, an appellate court has jurisdiction to consider this argument, and if appropriate, grant Ippus a new trial.

Other Uses

In recent decades, defendants have filed increasing numbers of habeas corpus petitions requesting a variety of forms of relief. For example, defendants have filed writs (successfully or unsuccessfully) to:

  • reduce or set bail
  • speed up an arraignment
  • contest denial of a jury trial
  • challenge a conviction when not informed of the right to counsel at certain pretrial proceedings, and
  • contest prison overcrowding, excessive solitary confinement, and other prison conditions.

Get a Lawyer

The rules regarding writs and other forms of post-conviction relief are complex. So is the substantive law that writs address. If you’ve been convicted of a crime or are being deprived of your liberty and wonder whether you’re entitled to relief, consult an experienced appellate criminal defense lawyer. Such a lawyer can analyze your case and guide you through the procedural maze.

For more on related topics, see Criminal WritsHabeas Corpus Procedure, and Appeals in Criminal Cases.

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