Fair or not, the state of Texas has a reputation for incarcerating a large amount of individuals for murder, especially on death row. In fact, while George W. Bush was governor of Texas and Jeb Bush was governor of Florida, pundits joked that the two brothers were competing for who could put the most people on death row. Many of the people on death row in Texas will file habeas corpus petitions.
The 39th Clause of the Magna Carta, which is the charter of rights agreed upon by King John of England in 1215, states that “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land[.]” English courts started to hear habeas corpus petititons, based on the Magna Carta, as early as the year 1600. The idea was that the king lacked the authority to incarcerate people as a divine right.
This eventually became an important part of American law, even before the Bill of Rights. In 1789, James Madison made a play for incorporating a writ of habeas corpus as an important part of American law.
The habeas corpus concept was included in the Bill of Rights of the Constitution. Specifically, the Suspension Clause of the Constitution in Article I Clause 9 states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” Clearly, there is a general right to habeas corpus.
Eventually, the right of habeas corpus was given to state prisoners as well as federal prisoners.
State Rights and Federal Rights
Filing a writ of habeas corpus in US Federal Court is applicable only after a prisoner exhausts all rights and remedies in a state court. This means that a defendant who claims innocence must go through the appellate process and be denied in the Texas Court of Criminal Appeals, which is the highest criminal court in the state of Texas.
Once all options and appeals are exhausted, the prisoner can file a writ with a federal court claiming that he or she is being improperly incarcerated. The writ is usually filed against the Texas Department of Criminal Justice, claiming that the department is improperly holding the petitioner as a prisoner.
Note that the writ of habeas corpus is a federal right and not a state right. It is a civil complaint and does not seek to determine whether the defendant is really guilty of the crime. Instead, a habeas corpus petition is utilized to demonstrate that the incarceration of the defendant violates a right found in the Constitution.
Due to the parameters of the writ of habeas corpus, its scope is severely limited. Examples where a defendant can succeed on a habeas corpus petition are 5th and 14th Amendment violations, which are usually claiming that there was a procedural issue and the defendant therefore lacked due process of law.
Incarcerated? You have Constitutional rights. Contact the law firm of Christopher Abel, a board-certified criminal defense attorney.
(image courtesy of Robert Hickerson)