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What is Habeas Corpus?

Habeas Corpus is a Latin term for “you have the body” and a ‘writ’ of habeas corpus is used to bring forth a prisoner or detained person to a court where he or she can be seen. The court must prove the legality of the prisoner’s incarceration or why someone is being detained, such as one with stated mental issues detained in an asylum. Such writs are generally made in civil actions against the state, represented by the holding party such as a prison warden.

The Short History Version

The use of Habeas Corpus was instituted during the reign of King John in the early 1200s when he signed the Magna Carta. The famous 39th clause states:

“No free man is to be arrested or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[1]

Disseised is a term referring to seizure or dispossessing a person of his (or her) property without a lawful judgment in place. In those early days, the property could be easily seized and given to another at the king’s whim, without any legal action.

America’s Founding Fathers also included the principle of habeas corpus in Article I, Section 9 of the Constitution to ensure that no person could be illegally detained for an indefinite time without recourse to being heard by a court. This part is better known as the Suspension Clause. The only time the writ of habeas corpus can be suspended, is by an act of Congress, generally in the case of an invasion or war where public safety may require it, and as requested by the President.

In California, Habeas Corpus is covered by California Penal Code §§ 1473-1508.

The Use of Habeas Corpus Today

Habeas Corpus is more commonly found today in cases of immigration and deportation cases of illegal immigrants, and military detentions, commissions, and convictions in a military court. In civilian courts, the writ of habeas corpus can be used for uncovering or forcing the court system to explain the legal reasoning for a person’s restraint or detention, specifically when fighting false accusations leading to imprisonment. In California, Habeas Corpus is covered by California Penal Code §§ 1473-1508. A writ of habeas corpus is not always the right way to go, in some cases.

A recent complicated case where a 2014 writ of Habeas Corpus was used in the matter of The People v. Jason Berg, D073749 in two different California Superior Courts, finally ended and was published at the end of April 2019.

Berg was attempting to obtain a new sentencing hearing, stating that his sentence of life without parole (LWOP) for first-degree murder with special circumstances, was unconstitutional at the time that it was given in 1997. Berg was 17 at the time he committed his offenses.

While the first court granted him the writ of habeas corpus, a second court stated that the first court was in error for granting it. After a long drawn out deliberation that went back and forth, and trying to determine court jurisdiction, the final verdict was to revoke the writ of habeas corpus and any possible chance for resentencing to occur. The earlier case can be found here for review.

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Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. Prior to that, he was employed as the senior associate attorney for a large criminal defense firm in San Diego for nine years, eventually being placed in charge of that firm’s branch office in downtown San Diego. At one point, he was managing six attorneys at that firm, as well as several support staff and law clerks.

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