You have likely come across the term “habeas corpus” in recent news, particularly in reference to the actions of immigration enforcement. However, this term encompasses much more than immigration and serves as a cornerstone of the legal field. Here's what you need to know about habeas corpus.

The History of Habeas Corpus

Habeas corpus is a legal term that is over 800 years old. It originated with the Magna Carta, considered by many to be the foundation of modern law.

A Latin term, “habeas corpus” literally means “that you have the body.” Originally, this right granted the king the power to demand accountability for any subject who was restrained by authorities other than the king. He could demand that those authorities show that they “have the body” and justify the continued imprisonment of the individual.

The law of habeas corpus was adopted by the founders of the U.S. and modified slightly to suit a republic rather than a monarchy. Under this version of habeas corpus, representatives of the judicial system could use habeas corpus to demand that officials produce a person and justify their detention.

What Is a Writ of Habeas Corpus?

Habeas corpus is implemented with a writ of habeas corpus. This is a legal order that any judge with jurisdiction can create. It orders the appropriate government to produce the detainee in court.

Once the detainee has been produced, the judge has the right to question the legitimacy of the detainment. The government representative must prove that the rights of the detained individual have been respected, that the detainment is legal and necessary, and that continued confinement is appropriate.

Based on the results of a hearing — or several hearings — the judge can approve the detainment of the individual under the current terms of their incarceration, modify those terms, or release them, potentially with some restrictions.

Failure to produce the detained individual or to follow the judge's order regarding detainment can be grounds for the judge to hold the government in contempt. In extreme circumstances, a judge can order the U.S. Marshals to take appropriate government officials into custody for violating their order.

When You Might Need a Writ of Habeas Corpus

There are two common situations where you may need a writ of habeas corpus. You will often see the first at the center of immigration enforcement issues.

If your lawyer is unable to determine where you are or can't communicate with you, they are likely to petition the court for a writ of habeas corpus. Your rights to have legal representation and to assist in your defense are both delineated by the Constitution. The government cannot infringe on those rights by preventing your lawyer from communicating with you.

The other common situation where your lawyer might petition the court for a writ of habeas corpus is one where they believe your detention was initiated under illegal circumstances. For example, if you were arrested without a warrant or probable cause, a writ of habeas corpus allows the judge to determine whether those actions were legal.

Federal vs. State Writs

Both federal and state judges can order a writ of habeas corpus. However, any such order is limited by their jurisdiction. If, for example, you were detained by a Los Angeles County sheriff, a California state judge could order a writ of habeas corpus.

If you were apprehended by the FBI, though, a state judge likely wouldn't have the authority to demand that the federal government present you in court. Instead, your attorney would typically need to request a writ from a federal judge. Conversely, the federal judge has the authority to order state and local officials to produce a prisoner.

There is also a difference in what laws state and federal writs take into account. For instance, a state judge may consider whether the officials who detained you violated state or federal protections. However, a federal judge would only consider whether your federally protected rights were violated or not.

Habeas Corpus Protects the Rights of the Detained

The law recognizes that the individuals who have the authority to detain others don't always act appropriately. A writ of habeas corpus allows a judge to examine that behavior and right wrongs when they occur. In this way, the law works to safeguard the rights of the detained throughout the country.