What is a Writ of Habeas Corpus?

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  • Written By: Alan Rankin
  • Edited By: Melissa Wiley
  • Last Modified Date: 13 March 2020
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A writ of habeas corpus is a legal document dealing with the incarceration of a prisoner. Specifically, habeas corpus demands that officials must charge the prisoner with a crime or otherwise demonstrate their authority to keep the prisoner incarcerated. If they cannot demonstrate such authority, they must release the prisoner. A writ of habeas corpus carries the weight of an order from a higher court, which in some cases is the constitution of the nation involved. A prisoner may apply for a writ of habeas corpus, but more often the application is made by another person, usually an attorney, on the prisoner’s behalf.

The writ of habeas corpus is a safeguard designed to prevent the abuse of power by state officials. In ancient times, monarchs and local rulers could and did imprison political rivals, critics of their policies, and even personal enemies without justification. Unfortunately, such abuses still take place in nations around the world. The writ of habeas corpus is meant to ensure that the legal process has not been circumvented when a person is imprisoned. In practice, it is often used to secure a prisoner’s release or hasten the legal process by demanding that police file formal charges that can be contested in court.


The phrase habeas corpus is Latin for hold the body, a shortened form of the full legal phrase, demanding the justification for holding a prisoner. The Latin phrase is a holdover from medieval Europe, when all educated people wrote in Latin; this is why scientific, medical, and legal terminology is still written in Latin in modern times. The writ of habeas corpus was a legal right in medieval England and was included in the Magna Carta, the 13th-century document that set the standard for many later legal charters. The writ of habeas corpus is also part of the United States Constitution, specifically mentioned in Article I. It is an essential right in the legal systems of many other nations around the world.

Once the writ has been served, the state is often obliged to hold a hearing to determine whether the prisoner has been justifiably incarcerated. A representative of the government must demonstrate applicable legal jurisdiction in the hearing, or the court will require the release of the prisoner. In many cases, the police or courts will eliminate the need for such a hearing by charging or releasing the prisoner, sometimes even before the writ is filed. Many countries, including the U.S., allow for suspending habeas corpus in the event of war, invasion, or other national crises.


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Post 2

@Soulfox -- good example of how that is used in a civil case. Here is another one. If a state agency takes custody of a child, the parent might file a writ of habeas corpus demanding that the child be produced in court. The agency is then asked to explain why it has the child and why it should keep it. If that agency doesn't give a sufficient answer, the court can return the child to the parent.

In that context, a writ of habeas corpus is used for the exact same purpose for which it is used in a criminal context. The government has to produce a person, explain why it has the authority to hold that person and

then must release that person if ordered to do so by the court.

It is important to point out such examples because a writ of habeas corpus is commonly thought of being used in a criminal context. That's not true, and a lawyer who can use one in a civil context might be committing malpractice if he or she doesn't file the exact document that could win a case for a client.

Post 1

A writ of habeas corpus is not only used in criminal cases. In the United States, some states authorize their use in custody cases. This is fairly common where a custodial parent wants the court to force a noncustodial parent to return children.

Let's say, for example, a parent has a child for summer visitation but refuses to return that kid to the custodial parent. The custodial parent could file a writ of habeas corpus requesting the court to demand that the noncustodial parent brings the child to court and then the custodial arrangements can be argued from there.

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