Estelle Perez, age 15, of Nashua, N.J., for her question:
CAN YOU EXPLAIN HABEAS CORPUS?
Habeas corpus in Latin means that "you have the body." Habeas corpus is a writ or order issued by a court to a person having custody of another, commanding him or her to produce the detained person in order to determine the legality of the detention.
The writ of habeas corpus is of English origin. Its original purpose was to liberate illegally detained persons and it is still a protection against arbitrary imprisonment.
The earliest use of the writ as a constitutional remedy against the tyranny of the Crown took place in the latter part of the 16th century, when it was applied in behalf of persons committed to prison by the Privy Council.
Protection against arbitrary imprisonment by the right of habeas corpus is not found in continental Europe. In the democratic countries of Western Europe, however, the codes of criminal procedure require that an arrested person be informed with reasonable promptness of the charges and be allowed to seek legal counsel.
The writ of habeas corpus has been adopted in many Latin American countries, either by constitutional provision or statutory enactment, but has frequently been nullified in practice during times of political or social upheaval.
In the United States, the use of habeas corpus is established by both federal and state constitutions. The U.S. constitution provides that the privilege of the writ of habeas corpus shall not be suspended except in cases of rebellion when the public safety may require it.
In the U.S. the writ was originally limited to cases of illegal imprisonment, but its use was subsequently extended and it is now also applicable to controversies in divorce and adoption proceedings involving the custody of minors.
The basis for such applications of the writ is the assumption that the state has the right, paramount to any parental or other claims, to dispose of children as their best interests require.
Both federal and state courts issue writs of habeas corpus. Federal courts, however, can issue such writs only under given condition, as when a prisoner is detained by order of the federal government or has been committed for trial before a federal court.
Federal courts can also issue writs of habeas corpus when a charge against a prisoner concerns an act done in pursuance of a federal law or order of a federal court, or when his or her detention is alleged to be in violation of the U.S. Constitution or of a law or treaty of the United States.
The jurisdiction of the federal courts in this regard extends to foreigners, if they have acted under the authority of their own governments, so that their guilt or liability must be determined by international law.
The state courts may issue the writ in all cases that do not fall exclusively under federal jurisdiction.