Post by Jim on Feb 10, 2009 9:02:02 GMT -5
Habeas corpus
From Wikipedia, the free encyclopedia
Habeas corpus (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming himself or being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."[1] The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. On June 12, 2008, the Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.[2]
The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
HOW TO FILE: (Basic)
[Note: Google and search for copies of samples of the Writ of Habeas Corpus in your state to get a better idea of how they look, what exactly is in them, and how to write them correctly.]
1.) Obtain the correct habeas corpus form from either the state court or the federal court.
2.) Enter the identity of the prisoner, the identity of the prisoner's custodian and the time, date and place of the requested court hearing.
3.) State the issues the prisoner wants addressed by the court. Habeas corpus petitions are commonly filed when a prisoner claims illegal confinement, when due process is denied, when bail is excessive or when probation is unjustly denied.
4.) Serve the appropriate court with the petition for habeas corpus. The court will then either grant a writ, deny the petition or schedule a hearing on the petition. If the writ is granted, the court will order the writ served upon the custodian of the prisoner demanding that the custodian bring the prisoner to the court. The custodian is usually required to bring the prisoner to court in 10 days or less.
From Wikipedia, the free encyclopedia
Habeas corpus (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming himself or being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."[1] The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. On June 12, 2008, the Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.[2]
The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
HOW TO FILE: (Basic)
[Note: Google and search for copies of samples of the Writ of Habeas Corpus in your state to get a better idea of how they look, what exactly is in them, and how to write them correctly.]
1.) Obtain the correct habeas corpus form from either the state court or the federal court.
2.) Enter the identity of the prisoner, the identity of the prisoner's custodian and the time, date and place of the requested court hearing.
3.) State the issues the prisoner wants addressed by the court. Habeas corpus petitions are commonly filed when a prisoner claims illegal confinement, when due process is denied, when bail is excessive or when probation is unjustly denied.
4.) Serve the appropriate court with the petition for habeas corpus. The court will then either grant a writ, deny the petition or schedule a hearing on the petition. If the writ is granted, the court will order the writ served upon the custodian of the prisoner demanding that the custodian bring the prisoner to the court. The custodian is usually required to bring the prisoner to court in 10 days or less.
