Robbins: Explaining a writ of habeas corpus
“That you have the body” is what it literally means. More on that in just a sec.
Just a few weeks after I had passed the Bar, I was working for a firm in San Diego. The managing partner called me to his office. “I want you to prepare a writ,” he said.
“To write a writ?” I asked.
“Exactly.”
The nature of the writ I was to write, I quickly learned, was a writ of habeus corpus which, to be honest, if it was touched upon at all in school, was brushed upon as lightly as an angel’s kiss.
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The managing partner, Dan, explained that a client of ours had been detained. In those days, it was not called a mental health hold, but that’s what it was. And the state had hung on to him too long. It was our job, Dan said, to get him sprung. “And thus, the writ,” he said.
His name was Dan, but I said, “Roger” and I quickly put my nose to the proverbial grindstone.
First things first: the angel’s kiss having left little or no impression, what exactly, was a writ of habeus corpus? And how did it apply here?
In those days, one cracked the books rather than tapping on one’s keyboard for intervention, divine or otherwise.
Now, back to the body stuff brushed upon above which is not as morbid as it sounds.
A writ of habeas corpus is used to determine if a state’s detention of a prisoner is valid. It is deployed to bring a prisoner or other detainee (for example, and as in our case, an institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.
A habeas petition proceeds as a civil action against the State agent (usually a warden or other master of the keys) who holds the defendant in custody. It can also be used to examine any extradition processes, the amount of bail, and the jurisdiction of the court.
As you might guess from “Latinism,” habeas corpus is old (or, perhaps, more fittingly, olde). It first originated way back in 1215, through the 39th clause of the Magna Carta signed by King John of Jolly Olde England, which provided that “No man shall be arrested or imprisoned … except by the lawful judgment of his peers and by the law of the land.”
English courts began actively considering petitions for habeas corpus in 1600. While habeas corpus had initially originated as an instrument in opposition to the king’s “divine right to incarcerate people,” there were many other constables and other authorities during those times who imprisoned people for various reasons. Accordingly, habeas corpus also developed as the king’s role to demand account for a subject who was restrained of his liberty by authorities other than the king.
As so many things “borrowed” from the Brits, by the time of the American upheaval to separate from Mother England, the British system of laws was deeply ensconced in our own budding jurisprudence. As such, when the rift became the split of U.S. nationhood, the law of habeas corpus was adopted here as well.
In 1789, as the U.S. Constitution was first revving up its engines, James Madison led the charge for the adoption of a Bill of Rights, including that of habeas corpus.
The fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, who, most scholars agree, more than anyone defined the powers of the Court, emphasized the importance of habeas corpus, writing in a decision in 1830, that the “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.”
Sometimes, though, habeus corpus may be suspended. For example, during the Civil War, the right to the writ was temporarily suspended.
The Suspension Clause of the Constitution (Article I, Section 9, Clause 2), states, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.
Today, habeas corpus is used mainly as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of the laws that resulted in their detention. Other uses include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court. Finally, habeas corpus is used to determine preliminary matters in criminal cases, such as: (i) an adequate basis for detention; (ii) removal to another federal district court; (iii) the denial of bail or parole; (iv) a claim of double jeopardy; (v) the failure to provide for a speedy trial or hearing; or (vi) the legality of extradition to a foreign country.
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The writ of habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds for restraint and detention. The writ stands as a safeguard against the imprisonment of those held in violation of the law. Thus, the writ is designed to obtain immediate relief from unlawful detention, by ordering immediate release unless sufficient legal grounds exist.
In my case, I wrote the writ and got our fellow sprung for which he was profoundly grateful. Was he, in fact, a little whack? Well, yes indeed he was, but as we maintained, and to which the Court agreed, his wackiness alone was not sufficient cause to deny him of his liberty.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: [email protected]. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars” and “The Theory of Dancing Mice.”
