Robbins: ‘That you have the body’
A few weeks after I had passed the California Bar exam, I was working for a firm in palm-treed San Diego. Phil, the managing partner, called me into his office. Fidgeting, he said, “I want you to write a writ.”
“To write a writ?” I asked.
“Exactly.”
The nature of the writ I was to write, I quickly learned, was a writ of habeas corpus, which, to be honest, if it was touched upon at all in school, it was brushed upon as lightly as an angel’s kiss. What I knew, perhaps in its entirety, was that the kind of writ that Phil was looking for may be literally translated as “that you have the body.”
I squirmed a bit. I didn’t know a writ from my right.
Support Local Journalism
Phil explained that a client of ours had been detained. In those days, it was not called a mental health hold, but that’s what it was. And the state had clung to him too long. It was our job, Phil said, to get him sprung. “And thus, the writ.”
It all made perfect sense.
To him.
His name was Phil, but I said, “Roger” and I quickly put my nose to the proverbial grindstone. Back in the day, the particular grindstone to which I put my nose were legal tomes. Writ in ink. On paper. Back then, one cracked the books rather than tapping on one’s keyboard for intervention, divine or otherwise.
First things first: the angel’s kiss having left little or no impression on me, what exactly was a writ of habeas corpus? And how did it apply here?
A writ of habeas corpus is used to determine if a state’s detention of a prisoner is valid. It is deployed to bring a prisoner or other detainee (for example, and as in our case, an institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.
A habeas petition (or writ) proceeds as a civil action against the state agent (usually a warden or other master of the keys) who holds the defendant in custody. It can also be used to examine any extradition processes, the amount of bail, and the jurisdiction of the court.
As you might guess from the “Latinism,” habeas corpus is old (or, perhaps, more fittingly, olde). It first originated way back in 1215, through the 39th clause of the Magna Carta signed by King John of Jolly Olde England, which provided that “No man shall be arrested or imprisoned … except by the lawful judgment of his peers and by the law of the land.”
British courts began actively considering petitions for habeas corpus in 1600. While habeas corpus had initially originated as an instrument in opposition to the king’s “divine right to incarcerate people,” there were many other authorities during those times who imprisoned people for various reasons. Accordingly, habeas corpus also developed as the king’s role to demand account for a subject who was restrained of his liberty by authorities other than the king.
As so many things “borrowed” from the Brits, by the time of the American upheaval to separate from Mother England, the British system of laws was deeply ensconced in our budding jurisprudence. As such, when the rift became the parturition which resulted in our nationhood, the law of habeas corpus was well established.
In 1789, as the U.S. Constitution was first revving up its engines, James Madison led the charge for the adoption of a Bill of Rights, including the fundamental right of habeas corpus.
The fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, who, most scholars agree, more than anyone defined the powers of the court, emphasized the importance of habeas corpus, writing in a decision in 1830, that the “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.”
At times, though — for example, during the Civil War — the right to the writ may be temporarily curtailed. The Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” Only Congress has the power to suspend the writ of habeas corpus, either by its affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.
Today, habeas corpus is employed mainly as a post-conviction remedy for state or federal prisoners who challenge the application of the laws that resulted in their detention. Other uses include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court. Finally, habeas corpus is used to determine preliminary matters in criminal cases, such as whether there is an adequate basis for detention, claims of double jeopardy, the failure to provide for a speedy trial, and the legality of extradition to a foreign country.
The writ of habeas corpus primarily acts to test the grounds or reasons for restraint and stands as a safeguard against imprisonment of those held in violation of the law. It is designed to obtain immediate relief from unlawful detention by ordering prompt release unless sufficient legal grounds exist.
In my case, I wrote the writ and got our fellow sprung. Was he, in fact, a little wacky? Well, yes indeed he was, but as we maintained, and to which the court agreed, his wackiness alone was not sufficient grounds to deny him his liberty.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
