Habeas corpus is a Latin term meaning "you have the body". It is a writ (court order) which directs the law enforcement officials who have custody of a prisoner to appear in court with the prisoner in order to determine the legality of the prisoner's confinement. Habeas corpus petitions are commonly used when a prisoner claims illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been unjustly denied. A petition for habeus corpus may be based on an error of fact or error of law. However, the determination made is whether due process rights were violated, not whether the prisoner is guilty.
In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. It is a method of attempting to order the child be delivered to another's custody. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her. It is commonly filed in an appeal after a conviction.
The writ of habeus predates the U.S. Constitution. British Parliament enacted the Habeas Corpus Act in 1679. In the United States, the Judiciary Act of 1789 created a statutory right of habeas corpus review for federal prisoners. The Habeas Act of 1867 was passed to protect the rights of newly freed slaves and extend the right of habeas corpus review to all state prisoners. The U.S. Constitution states, "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."
