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United States law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well a ...
, ''habeas corpus'' () is a recourse challenging the reasons or conditions of a person's
confinement Confinement may refer to * With respect to humans: ** An old-fashioned or archaic synonym for childbirth ** Postpartum confinement (or postnatal confinement), a system of recovery after childbirth, involving rest and special foods ** Civil confi ...
under color of law. A petition for ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'' is filed with a court that has
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
over the custodian, and if granted, a
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
is issued directing the custodian to bring the confined person before the court for examination into those reasons or conditions. The Suspension Clause of the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
specifically included the English
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
procedure in Article One, Section 9, clause 2, which demands that "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." United States law affords persons the right to petition the federal courts for a writ of ''habeas corpus''. Individual states also afford persons the ability to petition their own state court systems for ''habeas corpus'' pursuant to their respective
constitutions A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these prin ...
and
laws Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
when held or sentenced by state authorities. Federal ''habeas'' review did not extend to those in state custody until almost a century after the nation's founding. During the
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government polici ...
and
Reconstruction Reconstruction may refer to: Politics, history, and sociology * Reconstruction (law), the transfer of a company's (or several companies') business to a new company *''Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Unio ...
, as later during the
War on Terrorism The war on terror, officially the Global War on Terrorism (GWOT), is an ongoing international counterterrorism military campaign initiated by the United States following the September 11 attacks. The main targets of the campaign are militant ...
, the right to petition for a writ of ''habeas corpus'' was substantially curtailed for persons accused of engaging in certain conduct. In reaction to the former, and to ensure state courts enforced federal law, a Reconstruction Act for the first time extended the right of federal court ''habeas'' review to those in the custody of state courts (prisons and jails), expanding the writ essentially to all imprisoned on American soil. The federal ''habeas'' statute that resulted, with substantial amendments, is now a
28 U.S.C. § 2241
For many decades, the great majority of habeas petitions reviewed in federal court have been filed by those confined in state prisons by sentence of a state court for state crimes (e.g., murder, rape, robbery, etc.), since in the American system, most crimes have historically been a matter of state law. The right of ''habeas corpus'' is not a right against unlawful
arrest An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questi ...
, but rather a right to be released from imprisonment after such arrest. If one believes the arrest is without legal merit and subsequently refuses to come willingly, he still may be guilty of
resisting arrest Resisting arrest, or simply resisting, is an illegal act of a suspected criminal either fleeing, threatening, assaulting, or providing a fake ID to a police officer during arrest. In most cases, the person responsible for resisting arrest is crimi ...
, which can sometimes be a crime in and of itself (even if the initial arrest itself was illegal) depending on the state.


Origin

Habeas corpus derives from the English common law where the first recorded usage was in 1305, in the reign of
King Edward I Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England and Lord of Ireland from 1272 to 1307. Concurrently, he ruled the duchies of Aquitaine and Gascony as a vassal o ...
of England. The procedure for the issuing of writs of ''habeas corpus'' was first codified by the
Habeas Corpus Act 1679 The Habeas Corpus Act 1679 is an Act of Parliament in England (31 Cha. 2 c. 2) during the reign of King Charles II. It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of '' ...
, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the Queen was a sufficient answer to a petition of ''habeas corpus''.
Winston Churchill Sir Winston Leonard Spencer Churchill (30 November 187424 January 1965) was a British statesman, soldier, and writer who served as Prime Minister of the United Kingdom twice, from 1940 to 1945 during the Second World War, and again from ...
, in his chapter on the
English Common Law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
in '' The Birth of Britain'', explains the process thus: The writ of ''habeas corpus'' was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for ''habeas corpus'' could be made by the prisoner himself or by a third party on his behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge. The 1679 Act remains important in 21st century cases. This Act and the historical body of British practice that relies upon it has been used to interpret the ''habeas'' rights granted by the United States Constitution, while taking into account the understanding of the writ held by the framers of the Constitution. At the 1787 Constitutional Convention Habeas Corpus was first introduced with a series of propositions on August 20 by
Charles Pinckney Charles Pinckney may refer to: * Charles Pinckney (South Carolina chief justice) (died 1758), father of Charles Cotesworth Pinckney * Colonel Charles Pinckney (1731–1782), South Carolina politician, loyal to British during Revolutionary War, fath ...
, a delegate from
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
. Habeas Corpus was discussed and voted on substantively on August 28, 1787, where the first vote of the motion in favor of Habeas Corpus passed unanimously, and the second part passed by a vote of 7 to 3, for making Habeas Corpus Constitutionally-recognized.


Federal law

The Suspension Clause of Article One does not ''expressly'' establish a right to the writ of ''habeas corpus''; rather, it prevents Congress from restricting it. There has been much scholarly debate over whether the Clause positively establishes a right under the federal constitution, merely exists to prevent Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges. However, in the cases of '' Immigration and Naturalization Service v. St. Cyr'' (2001), and '' Boumediene v. Bush'' (2008) the U.S. Supreme Court suggested that the Suspension Clause protects "the writ as it existed in 1789", that is, as a writ which federal judges could issue in the exercise of their common law authority. Regardless of whether the writ is positively guaranteed by the constitution, ''habeas corpus'' was first established by statute in the
Judiciary Act of 1789 The Judiciary Act of 1789 (ch. 20, ) was a United States federal statute enacted on September 24, 1789, during the first session of the First United States Congress. It established the federal judiciary of the United States. Article III, Sec ...
. This statutory writ applied only to those held in custody by officials of the executive branch of the federal government and not to those held by state governments, which independently afford ''habeas corpus'' pursuant to their respective constitutions and laws. From 1789 until 1866, the federal writ of ''habeas corpus'' was largely restricted to prisoners in federal custody, at a time when no direct appeals from federal criminal convictions were provided for by law. ''Habeas corpus'' remained the only means for judicial review of federal capital convictions until 1889, and the only means for review of federal convictions for other "infamous crimes" until 1891. Until 1983 the writ of ''habeas corpus'' remained the only way that decisions of military courts could be reviewed by the Supreme Court. The authority of federal courts to review the claims of prisoners in state custody was not clearly established until Congress adopted a statute (28 U.S.C. § 2254) granting federal courts that authority in 1867, as part of the post-Civil War
Reconstruction Reconstruction may refer to: Politics, history, and sociology * Reconstruction (law), the transfer of a company's (or several companies') business to a new company *''Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Unio ...
. The U.S. Supreme Court in the case of ''Waley v. Johnson'' (1942) interpreted this authority broadly to allow the writ to be used to challenge convictions or sentences in violation of a defendant's constitutional rights where no other remedy was available. The U.S. Congress grants federal district courts, the Supreme Court, and all Article III federal judges, acting in their own right, jurisdiction under 28 U.S.C. § 2241 to issue writs of ''habeas corpus'' to release prisoners held by any government entity within the country from custody, subject to certain limitations, if the prisoner * Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or * Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree court or judge of the United States; or * Is in custody in violation of the Constitution or laws or treaties of the United States; or * Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or * It is necessary to bring said persons into court to testify or for trial. In 1950s and 1960s, decisions by the Warren Court greatly expanded the use and scope of the federal writ largely due to the "constitutionalizing" of criminal procedure by applying the Bill of Rights, in part, to state courts using the incorporation doctrine. This afforded state prisoners many more opportunities to claim that their convictions were unconstitutional, which provided grounds for habeas corpus relief. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action. One of AEDPA's most controversial changes is the requirement that any constitutional right invoked to vacate a state court conviction rooted in a mistake of law by the state court must have "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, ''as determined by the Supreme Court of the United States''" (emphasis added). Thus, a U.S. Court of Appeals must ignore its own precedents and affirm a state court decision contrary to its precedents, if the U.S. Supreme Court has never squarely addressed a particular issue of federal law.


Suspension during the Civil War


Presidential suspension of habeas corpus

On April 27, 1861, the right of ''habeas corpus'' was unilaterally suspended by
President Abraham Lincoln Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation throu ...
in
Maryland Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean t ...
during the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
. Lincoln had received word that anti-war Maryland officials intended to destroy the railroad tracks between Annapolis and Philadelphia, which was a vital supply line for the army preparing to fight the South. Indeed, soon after, the Maryland legislature would simultaneously vote to stay in the Union and to close these rail lines, in an apparent effort to prevent war between its northern and southern neighbors. Lincoln did not issue a sweeping order; it only applied to the Maryland route. Lincoln chose to suspend the writ over a proposal to bombard Baltimore, favored by his
General-in-Chief General in Chief has been a military rank or title in various armed forces around the world. France In France, general-in-chief (french: général en chef) was first an informal title for the lieutenant-general commanding over others lieutenant- ...
Winfield Scott Winfield Scott (June 13, 1786May 29, 1866) was an American military commander and political candidate. He served as a general in the United States Army from 1814 to 1861, taking part in the War of 1812, the Mexican–American War, the early s ...
. Lincoln was also motivated by requests by generals to set up military courts to rein in his political opponents, " Copperheads", or Peace Democrats, so named because they did not want to resort to war to force the southern states back into the Union, as well as to intimidate those in the Union who supported the Confederate cause. Congress was not yet in session to consider a suspension of the writs; however, when it came into session it failed to pass a bill favored by Lincoln to sanction his suspensions. During this period one sitting U.S. Congressman from the opposing party, as well as the mayor, police chief, entire Board of Police, and the city council of
Baltimore Baltimore ( , locally: or ) is the most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic, and the 30th most populous city in the United States with a population of 585,708 in 2020. Baltimore was ...
were arrested without charge and imprisoned indefinitely without trial. Lincoln's action was rapidly challenged in court and overturned by the U.S. Circuit Court of Appeals in Maryland (led by the Chief Justice of the Supreme Court, Roger B. Taney) in '' Ex parte Merryman''. Chief Justice Taney ruled the suspension unconstitutional, stating that only Congress could suspend habeas corpus. Lincoln and his Attorney General
Edward Bates Edward Bates (September 4, 1793 – March 25, 1869) was a lawyer and politician. He represented Missouri in the US House of Representatives and served as the U.S. Attorney General under President Abraham Lincoln. A member of the influentia ...
not only ignored the Chief Justice's order, but when Lincoln's dismissal of the ruling was criticized in an editorial by prominent Baltimore newspaper editor Frank Key Howard, they had the editor also arrested by federal troops without charge or trial. The troops imprisoned Howard, who was
Francis Scott Key Francis Scott Key (August 1, 1779January 11, 1843) was an American lawyer, author, and amateur poet from Frederick, Maryland, who wrote the lyrics for the American national anthem "The Star-Spangled Banner". Key observed the British bombardment ...
's grandson, in
Fort McHenry Fort McHenry is a historical American coastal pentagonal bastion fort on Locust Point, now a neighborhood of Baltimore, Maryland. It is best known for its role in the War of 1812, when it successfully defended Baltimore Harbor from an attac ...
, which, as he noted, was the same fort where the
Star Spangled Banner "The Star-Spangled Banner" is the national anthem of the United States. The lyrics come from the "Defence of Fort M'Henry", a poem written on September 14, 1814, by 35-year-old lawyer and amateur poet Francis Scott Key after witnessing the bo ...
had been waving "o'er the land of the free" in his grandfather's song. In 1863, Howard wrote about his experience as a "political prisoner" at Fort McHenry in the book ''Fourteen Months in the American Bastille''; two of the publishers selling the book were then arrested. When
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
convened in July 1861 it failed to support Lincoln's unilateral suspension of habeas corpus. A
joint resolution In the United States Congress, a joint resolution is a legislative measure that requires passage by the Senate and the House of Representatives and is presented to the President for their approval or disapproval. Generally, there is no legal diff ...
was introduced into the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
to approve of the president's suspension of the writ of habeas corpus, but
filibuster A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent decision. It is sometimes referred to as "talking a bill to death" or "talking out ...
ing by Senate Democrats, who did not support it, and opposition to its imprecise wording by Senator
Lyman Trumbull Lyman Trumbull (October 12, 1813 – June 25, 1896) was a lawyer, judge, and United States Senator from Illinois and the co-author of the Thirteenth Amendment to the United States Constitution. Born in Colchester, Connecticut, Trumbull es ...
prevented a vote on the resolution before the end of the first session, and the resolution was not taken up again. Trumbull himself introduced a bill to suspend habeas corpus, but failed on getting a vote before the end of the first session. Shortly thereafter, on September 17, 1861, the day the Maryland legislature was to reconvene, Lincoln imprisoned pro-Confederate members of the
Maryland General Assembly The Maryland General Assembly is the state legislature of the U.S. state of Maryland that convenes within the State House in Annapolis. It is a bicameral body: the upper chamber, the Maryland Senate, has 47 representatives and the lower chamber ...
without charges or hearings in further defiance of the Chief Justice's ruling. Thus, the legislative session had to be cancelled. On February 14, 1862, the war was firmly in progress and Lincoln ordered most prisoners released, putting an end to court challenges for the time being. He again suspended habeas corpus on his own authority in September that same year, however, in response to resistance to his calling up of the
militia A militia () is generally an army or some other fighting organization of non-professional soldiers, citizens of a country, or subjects of a state, who may perform military service during a time of need, as opposed to a professional force of r ...
.


Congressional suspension of habeas corpus

When Congress met again in December 1862, the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
passed a bill indemnifying the president for his suspension of habeas corpus. The Senate amended the bill, and the compromise reported out of the
conference committee A committee or commission is a body of one or more persons subordinate to a deliberative assembly. A committee is not itself considered to be a form of assembly. Usually, the assembly sends matters into a committee as a way to explore them more ...
altered it to remove the indemnity and to suspend habeas corpus on Congress's own authority. That bill, the Habeas Corpus Suspension Act, was signed into law March 3, 1863. Lincoln exercised his powers under it in September, suspending habeas corpus throughout the Union in any case involving prisoners of war, spies, traitors, or military personnel. The suspension of habeas corpus remained in effect until
Andrew Johnson Andrew Johnson (December 29, 1808July 31, 1875) was the 17th president of the United States, serving from 1865 to 1869. He assumed the presidency as he was vice president at the time of the assassination of Abraham Lincoln. Johnson was a De ...
revoked it on December 1, 1865. General
Ambrose E. Burnside Ambrose Everett Burnside (May 23, 1824 – September 13, 1881) was an American army officer and politician who became a senior Union general in the Civil War and three times Governor of Rhode Island, as well as being a successful inventor ...
had former-Congressman
Clement Vallandigham Clement Laird Vallandigham ( ; July 29, 1820 – June 17, 1871) was an American politician and leader of the Copperhead faction of anti-war Democrats during the American Civil War. He served two terms for Ohio's 3rd congressional district in t ...
arrested in May 1863 for continuing to express sympathy for the Confederate cause after having been warned to cease doing so. Vallandigham was tried by a
military tribunal Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bod ...
and sentenced to two years in a military prison. Lincoln quickly commuted his sentence to banishment to the Confederacy. Vallandigham appealed his sentence, arguing that the
Enrollment Act The Enrollment Act of 1863 (, enacted March 3, 1863) also known as the Civil War Military Draft Act, was an Act passed by the United States Congress during the American Civil War to provide fresh manpower for the Union Army. The Act was the firs ...
did not authorize his trial by a military tribunal rather than in ordinary civilian courts, that he was not ordinarily subject to court martial, and that Gen. Burnside could not expand the jurisdiction of military courts on his own authority. The Supreme Court did not address the substance of Vallandigham's appeal, instead denying that it possessed the jurisdiction to review the proceedings of military tribunals without explicit congressional authorization. In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the war ended. In '' Ex parte Milligan'' (1866), the U.S. Supreme Court decided that Congress's 1863 suspension of the writ did not empower the President to try to convict citizens before military tribunals where the civil courts were open and operational. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.


In the Confederacy

In the Confederacy,
Jefferson Davis Jefferson F. Davis (June 3, 1808December 6, 1889) was an American politician who served as the president of the Confederate States from 1861 to 1865. He represented Mississippi in the United States Senate and the House of Representatives as ...
also suspended ''habeas corpus'' and imposed martial law. Shortly after his inauguration as president of the Confederacy,
Frank J. Williams Frank J. Williams (born August 24, 1940) is a former Chief Justice of the Supreme Court of Rhode Island, a notable Abraham Lincoln scholar and author, and a justice of the Military Commission Review Panel. Biography Frank Williams was bor ...

"The Great Writ, North and South"
''New York Times'' (November 14, 2013).
an act of the Confederate Congress of February 27, 1862, was passed authorizing Davis to suspend the writ of habeas corpus and declare martial law "in such towns, cities, and military districts as shall, in his judgment, be in such danger of attack by the enemy".Amanda L. Tyler, ''Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay'', p. 187–193. The Confederate Congress passed a limiting act two months to restrict the suspension of the writ "to arrests made by the authorities of the Confederate Government, or for offences against the same" and to add a sunset clause providing that authorization to suspend habeas corpus would expire 30 days after the next meeting of Congress. In various proclamations and orders beginning in 1862, Davis suspended the writ and declared martial law in parts of
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth are ...
(including the Confederate capital of
Richmond Richmond most often refers to: * Richmond, Virginia, the capital of Virginia, United States * Richmond, London, a part of London * Richmond, North Yorkshire, a town in England * Richmond, British Columbia, a city in Canada * Richmond, Californi ...
,
Norfolk Norfolk () is a ceremonial and non-metropolitan county in East Anglia in England. It borders Lincolnshire to the north-west, Cambridgeshire to the west and south-west, and Suffolk to the south. Its northern and eastern boundaries are the Nor ...
,
Portsmouth Portsmouth ( ) is a port and city in the ceremonial county of Hampshire in southern England. The city of Portsmouth has been a unitary authority since 1 April 1997 and is administered by Portsmouth City Council. Portsmouth is the most d ...
, Petersburg, and elsewhere). Davis also suspended the writ in
East Tennessee East Tennessee is one of the three Grand Divisions of Tennessee defined in state law. Geographically and socioculturally distinct, it comprises approximately the eastern third of the U.S. state of Tennessee. East Tennessee consists of 33 count ...
; in this region,
Thomas A.R. Nelson Thomas Amos Rogers Nelson (March 19, 1812 – August 24, 1873) was an American attorney, politician, and judge, active primarily in East Tennessee during the mid-19th century. He represented Tennessee's 1st Congressional District in the 36th ...
was arrested by the Confederate military and held as a
political prisoner A political prisoner is someone imprisoned for their political activity. The political offense is not always the official reason for the prisoner's detention. There is no internationally recognized legal definition of the concept, although nu ...
before being released on the condition that he cease criticizing the Confederate government. Suspensions of civil process in the confederacy were used against suspected Unionists, particularly in border states. Historian Barton A. Myers notes that after the Confederacy imposed nationwide
conscription Conscription (also called the draft in the United States) is the state-mandated enlistment of people in a national service, mainly a military service. Conscription dates back to Ancient history, antiquity and it continues in some countries to th ...
, "the difference between arrest for political dissidence and conscription into the military became largely semantic, as anyone accused of Unionism was almost always first taken to a training camp where they were monitored and hazed under guard."Barton A. Myers, ''Rebels Against the Confederacy'' (Cambridge University Press, 2014), p. 63. Davis also suspended the writ in North Carolina (June 1862) and in Atlanta (in September 1862). The Confederate Congress passed re-authorizing legislation twice more, in October 1862 and February 1864. Davis suspended habeas corpus in
Arkansas Arkansas ( ) is a landlocked state in the South Central United States. It is bordered by Missouri to the north, Tennessee and Mississippi to the east, Louisiana to the south, and Texas and Oklahoma to the west. Its name is from the O ...
and the
Indian Territory The Indian Territory and the Indian Territories are terms that generally described an evolving land area set aside by the United States Government for the relocation of Native Americans who held aboriginal title to their land as a sovereign ...
in January 1863.Ralph Young, ''Dissent: The History of an American Idea'' (New York University Press, 2018), p. 198.Mark E. Neely Jr., ''Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism'' (University Press of Virginia, 1999), pp. 191–162. Although Davis had initially been resistant to the idea, he suspended the writ after receiving a telegram from General Theophilus Holmes complaining that his region was filed with disloyal persons and deserters, and that he could not enforce conscription. At least 2,672 civilians were subject to military arrest in the Confederacy over the course of its history, although this is likely an undercount given the incompleteness of records. Civil War historian Mark E. Neely Jr. suggests that "there seems to be no difference in the arrest rate in those periods when the Confederate Congress refuse to authorization suspension of the writ of habeas corpus and those periods was authorized. ... civilian prisoners trickled into Confederate military prisons whether the writ of habeas corpus was suspended or not." The last suspension lapsed in August 1864, amid deep domestic opposition to the suspension, including from the Confederate vice president
Alexander H. Stephens Alexander Hamilton Stephens (February 11, 1812 – March 4, 1883) was an American politician who served as the vice president of the Confederate States from 1861 to 1865, and later as the 50th governor of Georgia from 1882 until his death in ...
, Davis's political rival. Citing "discontent, disaffection, and disloyalty", Davis made entreaties in late 1864 and 1865 about the necessity of suspension, but bills to further suspend habeas corpus failed in the Confederate Senate.


Suspension during Reconstruction

Following the end of the Civil War, numerous groups arose in the South to oppose
Reconstruction Reconstruction may refer to: Politics, history, and sociology * Reconstruction (law), the transfer of a company's (or several companies') business to a new company *''Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Unio ...
, including the
Ku Klux Klan The Ku Klux Klan (), commonly shortened to the KKK or the Klan, is an American white supremacist, right-wing terrorist, and hate group whose primary targets are African Americans, Jews, Latinos, Asian Americans, Native Americans, and Cat ...
. In response, Congress passed the
Enforcement Acts The Enforcement Acts were three bills that were passed by the United States Congress between 1870 and 1871. They were criminal codes that protected African Americans’ right to vote, to hold office, to serve on juries, and receive equal protect ...
in 1870–71. One of these, the
Civil Rights Act of 1871 The Enforcement Act of 1871 (), also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871, is an Act of the United States Congress which empowered the President to suspend ...
, permitted the president to suspend habeas corpus if conspiracies against federal authority were so violent that they could not be checked by ordinary means. That same year, President
Ulysses S. Grant Ulysses S. Grant (born Hiram Ulysses Grant ; April 27, 1822July 23, 1885) was an American military officer and politician who served as the 18th president of the United States from 1869 to 1877. As Commanding General, he led the Union A ...
suspended the writ of habeas corpus in nine South Carolina counties; the Act's sunset clause ended that suspension with the close of the next regular session of Congress.


Suspension in the Philippines

In response to continuing unrest, the
Philippine Commission The Philippine Commission was the name of two bodies, both appointed by the president of the United States, to assist with governing the Philippines. The first Philippine Commission, also known as the Schurman Commission, was appointed by Preside ...
availed itself of an option in the Philippine Organic Act of 1902, , and on January 31, 1905, requested that
Governor-General Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
Luke Edward Wright Luke Edward Wright (August 29, 1846 – November 17, 1922) was a United States political figure. He served as Governor-General of the Philippines from 1904 to 1905 and also as Secretary of War from 1908 to 1909. Biography Luke Edward Wright ...
suspend the writ of habeas corpus. He did so the same day, and habeas corpus was suspended until he revoked his proclamation on October 15, 1905. The suspension gave rise to the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case ''Fisher v. Baker'', .


Habeas corpus during World War II

Immediately following the
attack on Pearl Harbor The attack on Pearl HarborAlso known as the Battle of Pearl Harbor was a surprise military strike by the Imperial Japanese Navy Air Service upon the United States against the naval base at Pearl Harbor in Honolulu, Territory of Hawaii ...
, the
governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
of Hawaii Territory,
Joseph Poindexter Joseph Boyd Poindexter (April 14, 1869 – December 3, 1951) was the eighth Territorial Governor of Hawaii and served from 1934 to 1942. Early life Joseph Boyd Poindexter was born in Canyon City, Oregon to Thomas W. and Margaret Pipkin Poind ...
, at the specific request by Lieutenant General Walter Short, US Army, invoked the Hawaiian Organic Act, (1900), suspended habeas corpus, and declared
martial law Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to an emergency where civil forces are overwhelmed, or in an occupied territory. Use Martia ...
. Short was recalled to Washington, D.C. two weeks after the attack and subsequently Hawaii was governed by US Army Lieutenant Generals Delos Emmons and
Robert C. Richardson Jr. Robert Charlwood Richardson Jr. (October 27, 1882 – March 2, 1954) was born in Charleston, South Carolina, on October 27, 1882, and was admitted as a cadet at the United States Military Academy on June 19, 1900. His military career spanned the ...
for the remainder of the war. In ''
Duncan v. Kahanamoku ''Duncan v. Kahanamoku'', 327 U.S. 304 (1946), was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases (''Hirabayashi v. United States'', ''Korematsu v. United States'' and ''Ex parte Endo'') beca ...
'', , the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that the declaration of martial law did not permit the trial of civilians in military tribunals for offenses unrelated to the military (in this case, public drunkenness). In 1942, eight German
saboteurs Sabotage is a deliberate action aimed at weakening a polity, effort, or organization through subversion, obstruction, disruption, or destruction. One who engages in sabotage is a ''saboteur''. Saboteurs typically try to conceal their identitie ...
, including two U.S. citizens, who had secretly entered the United States to attack its civil infrastructure as part of Operation Pastorius, were convicted by a secret
military tribunal Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bod ...
set up by President Franklin D. Roosevelt. In '' Ex parte Quirin'' (1942), the U.S. Supreme Court decided that the writ of ''habeas corpus'' did not apply, and that the military tribunal had jurisdiction to try the saboteurs, due to their status as
unlawful combatant An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The Internat ...
s. The period of martial law in Hawaii ended in October 1944. It was held in ''
Duncan v. Kahanamoku ''Duncan v. Kahanamoku'', 327 U.S. 304 (1946), was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases (''Hirabayashi v. United States'', ''Korematsu v. United States'' and ''Ex parte Endo'') beca ...
'' (1946) that, although the initial imposition of martial law in December 1941 may have been lawful, due to the Pearl Harbor attack and threat of imminent invasion, by 1944 the imminent threat had receded and civilian courts could again function in Hawaii. The Organic Act therefore did not authorize the military to continue to keep civilian courts closed. After the end of the war, several German prisoners held in American-occupied Germany petitioned the District Court for the District of Columbia for a writ of ''habeas corpus''. In '' Johnson v. Eisentrager'' (1950), the U.S. Supreme Court decided that the American court system had no jurisdiction over German war criminals who had been captured in Germany, and had never entered U.S. soil.


Antiterrorism and Effective Death Penalty Act

In 1996, following the
Oklahoma City bombing The Oklahoma City bombing was a domestic terrorist truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, United States, on April 19, 1995. Perpetrated by two anti-government extremists, Timothy McVeigh and T ...
, Congress passed (91–8 in the Senate, 293–133 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA was intended to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes." The AEDPA introduced one of the few limitations on ''habeas corpus''. For the first time, its Section 101 set a
statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...
of one year following conviction for prisoners to seek the writ. The Act limits the power of federal judges to grant relief unless the state court's adjudication of the claim has resulted in a decision that # Is contrary to, or has involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or # Has resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It barred second or successive petitions generally but with several exceptions. Petitioners who had already filed a federal ''habeas'' petition were required first to secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.


Habeas corpus in the 21st Century

The November 23, 2001 Presidential Military Order purported to give the
President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal gove ...
the power to detain non-citizens suspected of connection to terrorists or terrorism as
enemy combatants Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...
. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without legal counsel. Many legal and constitutional scholars contended that these provisions were in direct opposition to ''habeas corpus'', and the
United States Bill of Rights The United States Bill of Rights comprises the first ten amendments to the United States Constitution. Proposed following the often bitter 1787–88 debate over the ratification of the Constitution and written to address the objections ra ...
and, indeed, in ''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens mu ...
'' (2004) the U.S. Supreme Court re-confirmed the right of every American citizen to access ''habeas corpus'' even when declared to be an enemy combatant. The Court affirmed the basic principle that ''habeas corpus'' could not be revoked in the case of a citizen. In '' Hamdan v. Rumsfeld'' (2006)
Salim Ahmed Hamdan Salim Ahmed Hamdan () (born February 25, 1968) is a Yemeni man, captured during the invasion of Afghanistan, declared by the United States government to be an illegal enemy combatant and held as a detainee at Guantanamo Bay from 2002 to November ...
petitioned for a writ of habeas corpus, challenging that the
military commissions Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodi ...
set up by the Bush administration to try detainees at Guantanamo Bay "violate both the UCMJ and the four
Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...
." In a 5-3 ruling the Court rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States": On September 29, the U.S. House and Senate approved the
Military Commissions Act of 2006 The Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of ...
, a bill which suspended habeas corpus for any alien determined to be an "unlawful
enemy combatant Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...
engaged in hostilities or having supported hostilities against the United States" by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of ''habeas corpus'' failed 48-51.) President Bush signed the Military Commissions Act of 2006 (MCA) into law on October 17, 2006. With the MCA's passage, the law altered the language from "alien detained ... at Guantanamo Bay": The Supreme Court ruled in '' Boumediene v. Bush'' that the MCA amounts to an unconstitutional encroachment on ''habeas corpus'' rights, and established jurisdiction for federal courts to hear petitions for ''habeas corpus'' from Guantanamo detainees tried under the Act. Under the MCA, the law restricted ''habeas'' appeals for only those aliens detained as enemy combatants, or awaiting such determination. Left unchanged was the provision that, after such determination is made, it is subject to appeal in federal courts, including a review of whether the evidence warrants the determination. If the status was upheld, then their imprisonment was deemed lawful; if not, then the government could change the prisoner's status to something else, at which point the ''habeas'' restrictions no longer applied. There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners were, but are no longer, legally prohibited from petitioning any court for any reason before a CSRT hearing takes place. In January 2007,
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
Alberto Gonzales Alberto R. Gonzales (born August 4, 1955) is an American lawyer who served as the 80th United States Attorney General, appointed in February 2005 by President George W. Bush, becoming the highest-ranking Hispanic American in executive governme ...
told the
Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations ...
that in his opinion: "There is no express grant of ''habeas'' in the Constitution. There's a prohibition against taking it away." He was challenged by Sen.
Arlen Specter Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican fr ...
who asked him to explain how it is possible to prohibit something from being taken away, without first being granted. Robert Parry wrote in the Baltimore Chronicle & Sentinel: The Department of Justice in the George W. Bush administration took the position in litigation that the Military Commissions Act of 2006 does not amount to a suspension of the writ of habeas corpus. The U.S. Court of Appeals for the D.C. Circuit agreed in a 2-1 decision, on February 20, 2007, which the U.S. Supreme Court initially declined to review. The U.S. Supreme Court then reversed its decision to deny review and took up the case in June 2007. In June 2008, the court ruled 5-4 that the act did suspend ''habeas'' and found it unconstitutional. On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the
U.S. Court of Appeals for the Fourth Circuit The United States Court of Appeals for the Fourth Circuit (in case citations, 4th Cir.) is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts: * District of Maryland ...
, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court. In July 2008, the
U.S. Court of Appeals for the Fourth Circuit The United States Court of Appeals for the Fourth Circuit (in case citations, 4th Cir.) is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts: * District of Maryland ...
ruled that "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities." The
Habeas Corpus Restoration Act of 2007 A bill, provisionally called the Habeas Corpus Restoration Act of 2007, , passed the United States Senate Judiciary Committee on Thursday, June 7, 2007. The bill was sponsored by Democratic Senator Patrick Leahy and (formerly) Republican Sena ...
failed to overcome a Republican filibuster in the United States Senate in September, 2007. On October 7, 2008, U.S. District Judge
Ricardo M. Urbina Ricardo M. Urbina (; born 1946) is a former United States district judge of the United States District Court for the District of Columbia. Education and career Urbina earned a bachelor's degree from Georgetown University in 1967. He received hi ...
ruled that 17
Uyghurs The Uyghurs; ; ; ; zh, s=, t=, p=Wéiwú'ěr, IPA: ( ), alternatively spelled Uighurs, Uygurs or Uigurs, are a Turkic peoples, Turkic ethnic group originating from and culturally affiliated with the general region of Central Asia, Cent ...
,
Muslims Muslims ( ar, المسلمون, , ) are people who adhere to Islam, a monotheistic religion belonging to the Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God of Abrah ...
from China's northwestern
Xinjiang Xinjiang, SASM/GNC: ''Xinjang''; zh, c=, p=Xīnjiāng; formerly romanized as Sinkiang (, ), officially the Xinjiang Uygur Autonomous Region (XUAR), is an autonomous region of the People's Republic of China (PRC), located in the northwes ...
region, must be brought to appear in his court in Washington, DC, three days later: "Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful." On January 21, 2009, President Barack Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order stated that the detainees "have the constitutional privilege of the writ of habeas corpus." Following the December 1, 2011, vote by the
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
to reject an NDAA amendment proscribing the
indefinite detention Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency for an indefinite amount of time without a trial; the practice violates many national and international laws, including human ri ...
of U.S. citizens, the
ACLU The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". ...
has argued that the legitimacy of ''Habeas Corpus'' is threatened: "The Senate voted 38-60 to reject an important amendment
hat A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety, or as a fashion accessory. Hats which incorporate mecha ...
would have removed harmful provisions authorizing the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world... We're disappointed that, despite robust opposition to the harmful detention legislation from virtually the entire national security leadership of the government, the Senate said 'no' to the Udall amendment and 'yes' to indefinite detention without charge or trial." ''
The New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' has stated that the vote leaves the constitutional rights of U.S. citizens "ambiguous," with some senators including
Carl Levin Carl Milton Levin (June 28, 1934 – July 29, 2021) was an American attorney and politician who served as a United States senator from Michigan from 1979 to 2015. A member of the Democratic Party, he was the chair of the Senate Armed Services ...
and
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
arguing that the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
had already approved holding Americans as enemy combatants, and other senators, including
Dianne Feinstein Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she wa ...
and Richard Durbin, asserting the opposite. On March 20, 2015, a
New York Supreme Court The Supreme Court of the State of New York is the trial-level court of general jurisdiction in the New York State Unified Court System. (Its Appellate Division is also the highest intermediate appellate court.) It is vested with unlimited civ ...
justice issued an order to "show cause & writ of ''habeas corpus"'' in a proceeding on behalf of two
chimpanzee The chimpanzee (''Pan troglodytes''), also known as simply the chimp, is a species of great ape native to the forest and savannah of tropical Africa. It has four confirmed subspecies and a fifth proposed subspecies. When its close relative t ...
s used in research at
Stony Brook University Stony Brook University (SBU), officially the State University of New York at Stony Brook, is a public research university in Stony Brook, New York. Along with the University at Buffalo, it is one of the State University of New York system' ...
. The justice, Barbara Jaffe, amended her order later in the day by striking the reference to ''habeas corpus''.


Differences in post-trial actions

Habeas corpus is an action often taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions and proceedings, their differences being potentially confusing, thus bearing some explanation. Some of the most common are an appeal to which the defendant has as a right, a
writ of certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
, a writ of coram nobis and a writ of habeas corpus. An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived via
estoppel Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from b ...
. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that #a mistake was indeed made #an objection to that mistake was presented by counsel and #that mistake negatively affected the defendant's trial. A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial. A petition for a writ of error coram nobis or error coram vobis challenges a final judgment in a criminal proceeding. Use of this type of petition varies from jurisdiction to jurisdiction, but is usually limited to situations where it was not possible to raise this issue earlier on direct appeal. These petitions focus on issues outside the original premises of the trial, i.e., issues that require new evidence or those that could not otherwise be raised by direct appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.


Federal habeas corpus statistics


Number of cases

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. The vast majority of these were from state prisoners, not from those held in federal prisons. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions.


Types of cases in which petitions are filed

In 1992, less than 1% of federal habeas corpus petitions involved
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
sentences, although 21% involved life sentences. At that time about 23% had been convicted of homicide, about 39% had been convicted of other serious violent crimes, about 27% had been convicted of serious non-violent crimes, and about 12% were convicted of other offenses. These are almost exclusively state offenses and thus petitions filed by state prisoners. Exhaustion of state-court remedies often takes five to ten years after a conviction, so only state prisoners facing longer prison sentences are able to avail themselves of federal habeas corpus rights without facing a summary dismissal for failure to exhaust state remedies. The lack of state remedies to exhaust also means that the timeline for federal death penalty habeas review is much shorter than the timeline for state death penalty habeas review (which can drag on literally for decades). In 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total.


Success rates

About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds at the U.S. District Court level, and about 35% of those issues are dismissed based on the allegations in the petition on the merits (on the merits has a different meaning than what it's used for here). About 2% are either "remanded" to a state court for further proceedings (which poses an interesting problem of
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments ( provincial, state, cantonal, territorial, or other sub-unit governments) in a single ...
– the federal court usually issues a writ to the state prison to release the prisoner, but only if the state court does not hold a certain proceeding within a certain time), or, far less frequently, resolved favorably to the prisoner on the merits outright. About 57% of habeas corpus issues dismissed on procedural grounds in 1992 were dismissed for a failure to exhaust state remedies. Success rates are not uniform, however. James Liebman, Professor of Law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." Most habeas corpus petitioners in death penalty cases are represented by attorneys, but most habeas corpus petitioners in non-death penalty cases represent themselves. This is because federal funds are not available to non-capital state habeas petitioners to pay for attorneys unless there is good cause, there being no federal right to counsel in such matters. However, in state capital cases, the federal government provides funding for the representation of all capital habeas petitioners. Thus, about 20% of successful habeas corpus petitions involve death penalty cases. These success rates predate major revisions in habeas corpus law that restricted the availability of federal habeas corpus relief when AEDPA was adopted in 1996, over a decade ago. Post-AEDPA, the great disparity in success rates remains, however, with the federal courts' overturning of state capital cases a major reason that many states have been unable to carry out a majority of capital sentences imposed and have long backlog lists.


Disposition time

The time required to adjudicate habeas corpus petitions varies greatly based upon factors including the number of issues raised, whether the adjudication is on procedural grounds or on the merits, and the nature of the claims raised. In 1992, U.S. District Courts took an average of two and a half years to adjudicate habeas corpus petitions in death penalty cases raising multiple issues that were resolved on the merits, about half of that time-length for other multiple issue homicide cases, and about nine months in cases resolved on procedural grounds. AEDPA was designed to reduce the disposition times of federal habeas corpus petitions. But AEDPA has a little impact in non-capital cases, where a majority of cases are dismissed on procedural grounds, very few prisoners prevail and most prisoners are not represented by attorneys. The disposition time in capital cases has actually increased 250% from the time of AEDPA's passage to 2004.


Filing rates

In 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low of 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) produced a brief surge in the number of habeas corpus filings by state prisoners, as deadlines imposed by the act encouraged prisoners to file sooner than they might have otherwise done so, but this had run its course by 2000, and by 2004, habeas corpus petition filing rates per 1,000 prisoners was similar to pre-AEDPA filing rates. There was a temporary surge in habeas corpus petitions filed by federal prisoners in 2005 as a result of the ''Booker'' decision by the U.S. Supreme Court.


References


Further reading

* Wert Justin J. ''Habeas Corpus in America: The Politics of Individual Rights'' (University Press of Kansas; 2011) 296 pages; how presidents, Congress, interest groups, legal scholars, and others have shaped it.


External links


Petition for Habeas Corpus April 16, 1843
Fro
Texas Tides
{{DEFAULTSORT:Habeas Corpus In The United States *