By Sharon Frankenberg,
Attorney at Law

The Latin phrase “habeas corpus” roughly translates “you shall have the body.”  The phrase is tossed around on television in newsmagazines, legal reality shows and fictional courtroom dramas.  What is a writ of habeas corpus and who needs one?

Habeas corpus dates back to the Magna Carta in England in 1215.  The concept of habeas corpus review is what prevented a king from locking his subjects up in secret dungeons and throwing away the key.  Sir William Blackstone described habeas corpus as “the glory of the English law” in his Commentaries on the Laws of England.  The rights of citizens to demand review of their incarceration was an essential protection against government abuse whether this abuse is intentional or unintentional.  This means that habeas corpus relief may be available to an innocent prisoner whether his or her incarceration is result of some corrupt official or due to mere clerical oversight.  It is how a person may require the authorities holding him or her to provide a legal justification for the detention.  Liberty and justice require the availability of this legal tool to maintain a free society.

The need for habeas corpus was understood to be so important and so fundamental that it is addressed in Article I, Section 9, Clause 2 of 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.”  President Lincoln, with the approval of Congress, suspended the writ of habeas corpus during the Civil War.  Congress has suspended it in South Carolina in 1871 to deal with the Ku Klux Klan, in the Philippines in 1905 to handle a local revolt and in Hawaii during World War II.

The habeas petition is a civil action brought by the person being detained or imprisoned against the State agent holding that person in custody.  Habeas corpus is mainly used by state or federal prisoners after they have been convicted to challenge the legality of the application of laws leading to their detention.  “Other uses of habeas corpus include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court.”

Federal statutes provide specific authority to federal courts to grant habeas corpus relief to federal prisoners.  Before requesting federal habeas corpus review the petitioner must be custody when the petition is filed and a prisoner held in state government custody must have exhausted all state remedies, including state appellate review.   Decisions from the U.S. Supreme Court have reaffirmed that the federal courts have authority to grant habeas corpus relief to state prisoners.  State courts do not have this authority over federal prisoners but they, of course, have habeas corpus authority over state prisoners.   Section 29-21-101 of the Tennessee Code Annotated enumerates the grounds “any person imprisoned or restrained of liberty, under any pretense whatsoever” may seek a writ of habeas corpus.  It is worth noting that this section limits the right to habeas corpus relief in certain circumstances where a guilty plea was entered.