The Edmond Sun

August 2, 2013

Habeas corpus protects against unlawful confinement

Matt Hopkins
Special to The Sun

EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies Law Firm in Edmond.



Q: What is a writ of habeas corpus?

A: My recent articles have discussed the academic structure of various causes of action, focusing primarily on the concept of legal causation. But my 15-year-old son has convinced me that you need a break, or at least that he needs a break from my dinner conversation on the topic. So, we’ll divert today to a subject rooted in Old English adultery and murder.

A writ is an order issued by someone with authority to order others around that directs its recipient to perform a specific act. I’m not sure, but I suspect King Henry VIII issued close writs to achieve the arrest and subsequent execution of at least one of his wives. A close writ was issued only by the sovereign and was sealed to remain private. In Henry’s case, it was a tool of his adulterous desire and murderous intent. Of the many types of historic writs, it is the close writ that, somewhat ironically, made the writ of habeas corpus prevalent in the American judicial system.

A writ of habeas corpus is an order directing its recipient to literally deliver a body. Preferably, one that is still alive. There are many types of habeas corpus writs. A writ of habeas corpus juratorum is an Old English order for a sheriff to collect people to serve on a jury. You might experience its modern equivalent if you ignore a summons to appear for jury duty. You will know for sure if a sheriff shows up to invite you to his car.

But the writ of habeas corpus is most commonly used to order the release of a person who is unlawfully imprisoned or otherwise improperly confined. Our early judicial and political systems recognized its importance to counteract unbridled sovereign powers — like that of the close writ — that were historically used to crush common folk and queens with the threat of secret and permanent disappearance into the bowels of the Tower of London.

The purpose of a writ of habeas corpus is not to release a confined person because he is actually innocent of the underlying crime, but because he is being confined without due process or in violation of some other constitutional right. So, if you are secretly taken from your comfy bed to a concrete floor behind iron bars, you will want to thank me for this article. You’re welcome.



MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to questions@lldlaw.com.