Then and Now of Habeas Corpus

Then and Now of Habeas Corpus
Wendy Lupton
POL 201 American National Government
Russel Riggs
10/01/2012

Freedom. What an indescribable term. Is it merely a feeling or is it something more tangible? False Imprisonment. Now that is something more noticeable. The Great Writ of Habeas Corpus has been part of the judicial system since the Magna Carta! It is this writer 's intent to show the reader how Habeas Corpus has been incorporated into the United States of America 's Constitution and how it has changed since being written into law by the implementation of the Habeas Corpus Act of 1679; Interesting usage of Habeas Corpus will be explored throughout the reader 's journey down the rabbit hole.

The phrase “Habeas Corpus” is an ancient common law prerogative instrument dating back to the Magna Carta. Though not specifically written in this great charter, Habeas Corpus is implied by the phrase “the law of the land.” This gave enough room for interpretation to include Habeas Corpus as a common law issue versus civil law implementation. It is a legal procedure to which the detained person has an incontrovertible right. Prior to the passage of the English Parliamentary Habeas Corpus Act of 1679, detainment and release of citizens was done from a “top down” method where it was basically the king 's or his court 's whim to release a prisoner even if there was sufficient evidence proving the innocence of the incarcerated subject (Robertson, 2002).

Habeas Corpus is such an important right that even the framers of the United States of America 's Constitution included it in Article 1 Section 9! They, the framers of the Constitution, thought so much of this Great Writ that they ensured its inclusion even before they incorporated the most basic guardians of American liberty, the famed Bill of Rights! The Bill of Rights was actually an “afterthought” that was only included due to the single-handed efforts of James Madison to get it passed finally on December 17th, 1791. This was some two years after adoption of the U.S. Constitution (Robertson, 2002).

The Great Writ exists today as it did in the past to prevent unlawful detainment in such cases as:
“- post conviction relief in criminal matters even where the judgment of judge and jury is final;
- Those who are in police custody but who are not charged with a crime;
- Those who are awaiting trial but who have not been able to make an excessive bail;
- Death row prisoners who challenge their death sentence;
- Prisoners who remain in custody after the expiration of their lawful sentence;
Additionally, Habeas Corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority” (Robertson, 2002).

Several notable abuses of Habeas Corpus are: the Dred Scott case, President Lincoln 's suspension of the writ during the United States Civil War, and most recently, former President George W. Bush and a compliant Congress ' dismissal of Habeas Corpus during the current “War on Terror.” The aforementioned items will now be examined. In the Dred Scott case, Mr. Scott was a slave owned by a doctor. Upon the doctor 's death it was promised that Scott would be freed. This freedom was upheld all the way through the judicial system until the United States Supreme Court overturned Scott 's freedom as he was a slave! Being a slave meant that under the United States Constitution, Scott was not a “person” and therefore not subject to the protection afforded citizens of America.

During the Civil War, President Lincoln suspended the writ and allowed the Federal military to detain Confederate soldiers indefinitely until they could be tried in a civil court. Chief Justice Tanney challenged this suspension as unconstitutional as only the Congress of the United States had the legal power to suspend Habeas Corpus under Article 1 Section 9 of the Constitution (See: Ex parte Merryman, 17 Fed. CAS. No.9, 487, p.144 (1861). The ruling of the Court was ignored by the President and the military. Congress later authorized the decision of President Lincoln inasmuch as he was already doing how he pleased. It wasn 't until his assassination that the U.S. Supreme Court re-established the Great Writ and stated once again that ONLY the Congress could allow for the suspension of Habeas Corpus and that the U.S. Military had no jurisdiction over civilian trials in the post-war South.

Presidential suspension occurred again in the “War on Terror” with the assistance of a willing Congressional approval. This time, a man named Lakhdar Boumediene had been denied access to a civilian court and protection under the Constitution for seven years! He was later found to be completely innocent of all charges. The President and his Congress“tried to block those who might be wrongly imprisoned at Guantanamo from gaining access to a civilian court.”
In conclusion, the writer wants to stress the importance of the Great Writ of Habeas Corpus. The Great Writ affords all citizens of the United States of America the freedom from unlawful detainment or incarceration. Though there is the potential for abuse of the writ, it is still the Great Guardian of Freedom as written into the Constitution of the United States.

References

Stop the Abuse of Habeas Corpus. (2011). USA Today, 140(2795), 14.

Habeas Corpus: The Most Extraordinary Writ. (2002). Retrieved from http://habeascorpus.net/hcwrit.html

Habeas Corpus Defined and Explained. (2012). Retrieved from http://www.lectlaw.com/def/h001.htm

References: Stop the Abuse of Habeas Corpus. (2011). USA Today, 140(2795), 14. Habeas Corpus: The Most Extraordinary Writ. (2002). Retrieved from http://habeascorpus.net/hcwrit.html Habeas Corpus Defined and Explained. (2012). Retrieved from http://www.lectlaw.com/def/h001.htm