Bypass of Habeas Corpus

Habeas Corpus

Even when Habeas Corpus is a constitutional right, It has been prohibited or limited several times in the past, one example of this is the ban from 1789 until 1866 when government decided to restore the constitution.

What is habeas corpus? Translated from latin it means "(We command that) you have the body". Habeas corpus (or the Great Writ) is a legal procedure in which a person has an undeniable right which means that a prisoner has the chance of being released. Habeas Corpus is a right that every citizen has, whether he or she has been under arrest or held in custody by the police since authorities can not hold some one without a cause.

Its origins come from the English legal system (founded in the 17th century) it was needed in order to justify the detention of someone under the following restrictions: by means of a public process, controlled and only by the will of the monarch. however today it is effective in many places around the world. Besides, as a legal instrument, it has gotten great importance.

Often, many prisoners ask for the writ of H.C. so that they can go to court and once there, it will be defined if this person will or will not be released from custody

Before a prisoner can obtain federal Habeas relief, first he must have "exhausted" all state court remedies. It means that the prisoner must have brought up the federal constitutional claim at all possible moments in the state court process before coming to federal court to get relief. The intention is to present to the state court all possible opportunities to amend the error before the federal court will interfere.

It does not only applies to detained ones. For example, when a person has been denied custody of his child, this person can file a for the H.C. petition.

About the procedure, Habeas Corpus petitions may be dismissed if they are delayed to the disposition of the state. Regarding the place where a person filing for Habeas C. goes to is generally the federal district court. After the petition is filed, this will be examined, this can be dismissed or elseways, they will contact the respondent in a certain period of time for the respondant to file an answer. But it is not obligatory for him to answer unless the court orders it. The copy of the petition has to be served by mail.

However it has its limitations. The person filing for it has to exhaust all remedies before coming to court, might be one. Another one could be that it can fail to comply with state procedures (if the person filing for it does not adhere to a rule of state procedure). Also, there are abusive and successive petitions, abusives are when after that first one you do another one claiming something new or that could be brought up before and successives are about the same claim that was rejected before.

To Restore the constitution was done after 2000's limitations of writ of habeas corpus once again.