The Custody Requiremekt For Habeas Corpes

• Author: By Major Charles A. Cushman
• Pages: 01

1. THE FUSCTIOS OF HABEAS CORPUS

Habea8 corpus, we hare ail been told, is a "discretionary writ, extraordinary in nature, issued by a civil court to inquire into the legality of ani- restraint upon the bodr of a person."' Historically, the arit serred the function of affording the prisoner a judicial inquiry into the ralidity of his pretrihl restraint.2 In 1830, the Supreme Court put it this way:

The Xn: of Habrsr Corpus IS a hleh prerogatwe arxt. knoiin to the common la%?,the great abject of iahich is the llberatian of those aho map be imprisoned without %vffiemt cs~se.8

More recently. hlr Chief Justice IYarren expmding the unanif the Supreme Court in Peufo?, w. RoiW staied:t of Habeai Corpur 1s a praiedirsl device for subjecting, iudmal, or private restraints on iibefi; to jvd~e1sl S~PY- 'This article was adapted from a them presented to The Judge Adrocate General's School, U.S. Army, Charlottesville Vxgmmember of the Seventeenth Advanced C&e. ThePresented herein are those of the author and do not neceiianly represent the vlem of The Judge Advocate General's School or any other governmental

LePnrl .i ...

'* UEQC: Mdltary Justice Office Force Lo-irtic Command, FMF Pacific FPO Sa" Franciseo 86GoP. Vzernai; B.A..

1959: LL.B., 1962, Emversits- 0;

North Carolma; member of the Bar of the Dlstrlct of Columbia and the United States Covrt of Military Appeala.

1 hlanva! for Courts-Xartla!. United States, 1931. para. 2140.

2 See generally Haltmff, CallaLeral Review of Conviotions %n Federal

'391 T.S. 54 (1968).

.i ...

'* UEQC: Mdltary Justice Office Force Lo-irtic Command, FMF Pacific FPO Sa" Franciseo 86GoP. Vzernai; B.A..

1959: LL.B., 1962, Emversits- 0;

North Carolma; member of the Bar of the Dlstrlct of Columbia and the United States Covrt of Military Appeala.

1 hlanva! for Courts-Xartla!. United States, 1931. para. 2140.

2 See generally Haltmff, CallaLeral Review of Conviotions %n Federal Cou7ts.25 B.U.L. REV. 28 , ~ ~ " ~ ~

Er P Y I I ~

Kathns. 28 '391 T.S. 54 (1968).

Cou7ts.25 B.U.L. REV. 28 11945).

Er P Y I I ~

Kathns. 28 C B (3 Per.) 193, 201 (1830)

tins. Where It IS aiailable. it assures among other things that a. misorer ma? require hi3 jailer to justif? the detention under law.6It is apparent that the writ lie? to enforce the ripht of per?anal liberty \%ith the remedy being "some farm of discharge from cus- a petitioner's current detention. r. for example. the idlowing cases. In ll'aliei. v.

ment and the ,,IICOnstItI,tiOnal:tr of the underlyinp coni ictian.

Furthermore. loner fedeial miits hare fashioned appropriate conditional hahea? carpus order. as a veh:cle for post-Con~-mioii process. In Davis li.

North Carolina,$ the Supreme Court ordered the release of a petitioner on habeas ccase to be postponed in order to allowin nh:ch to retrv petitioner.". The SDe,8no.1Y reversed a laxer federal tout decision denrelief and remanded the case to the dito releare the petitioner if after a 'fails to afford the appl:cant a hearing on his claim of an inioluntars confession or rerr? him. )lore recently, in ShelJo>d L. .lJast ~ l l , : ~ the Supreme Court he!d that since the state trial judge did not fulfill hi3 dut) to prorect the petitioner from the "inherently prejudicial publicity which saturated the the ease was remanded to the dwtrict court "with instruction, to issue the writ aiid order that Shepard be released from custody unless the State puts him to ita charges again within a reasonable time."';

Tnese decisions apt:? illustrate the fact that habeas relief is substantially broader rhan merel5- ordering the immediate release of an applicant from unlawful detention. Furthermore, it is rubmitted that habeas relief operates not only on the body of the

I1 id. at 396 I3 Id. BL 383.14 id.

-384 U.S.

333 (1966).

HABEAS CORPUS CUSTODY

petitioner, but on the underlying conviction. By ordering the applicant's release. the court's order preclude8 the custodian or warden from thereafter detaining the applicant under the invalidated conviction. Hoi\ever, in these latter cases where the petitioner was able to s h m to the satisfaction of the court that the basis for his present confinement is unlawful, hia release was postponed and conditioned on the state'a retrring him aithin a specified period of time. Such conditional orders haie, in recent times, become quite common in habeas cases :I6

Courts hndmg ~n favor oi applicants are frequently reluctant to ordei them immediately dmehareed from custody, where there is no bar to the re-proeecutmn of the charges against them. A deriee sometimes used is the conditional order. providing ior release at the end o i SIX months (or some miilsr and extensive permdi unless Bnew conalc:ian LI obtained within that t

Since the extent of judicial inquiry b.scope of this article, reference to the contemporary function of habeas corpus id made in thii article insofar aa It invslves the court's discussion and disposition of the statutory requirement of "in custody."

ally Ez parte Bollman, 8 U.S. (4 Craneh) 75, 83-101 (1807) ; 111. 293 L'.S. 131, 136 (1931)

J U S ~ I C B

thereof, the d.irrict eourtr and any wemt judge r.lthln thelr respec-tne :unsdietmns. The order of Q emuit judge shall be entered m the recordsof the district court of the diitriet wherem the reitramt complained ai 1s had.

"(bi Tie Supreme Court, an) juatm thereof, and any emcult judge may decline to entertain an application for a a n t ai habeas corpus and may transfer the apglicallon far hearing and determmatmn to the dxtrlei court haiine :urisdwlion to enrertam it.

"iei Tle w.f of habeas carpus shall not extend to B pl~ionerunless- ill He IS in custody under or bs e ~ l o i of the authorits ai Umted States

Or is eommiftedfor tnal before enme court thereoi: or (2) He is ~n eustods ior an act done or omitted m pursuance of an Act of Congrerr.ar 8- order, pmeers, judgment of decree of a court mr judge of the L-mted States, or (3) He 18 ~neuitody in violation of the Comtitutmn or l a ~ s or treatlea

of the Umted Staten; , . . .I'

ter observed that the "orernhelm. s filed in the federal courts are (3) of title 28. United States Code (1964), xshieh provides: "The writ of habeas corpus shall not er-tend to a primner unless . , . [inter alia] he is 111 custody in violation of the Const:tutian or laws 01. treaties of the Umted states.. ."

States re\eals that several terms hact been used to hmit the a~ailabilitl- of the vnt. The origin of the writ of habesa corpus in this country can be traced TO the Federal Judiciary Act of 21 September li89,21vhxh authorized federal judge? tu i F w o >wits of ha-beas corpus 011 behalf of persons in federal custody. In section l? of the Act. tne ''cauds of commitment" was made the "purpose of

powers that can be conferred upon them. It is a bill of the largest liberty.' "*E In 1874, the jurisdictional grants af , arlier legislation were consolidated in section 753 of title 13 of Revised Statutes of 1874.g6 Section 163 provides:

The writ of habeas corpus shall in no case extend to a pnson~r

in jail, unless where he is in custody under or by oolor of the authority of the Umted States , . , or is in cvntody in vhlation of the constitution or ai B Is_ or treaty of the Umted States. . . .8

Here, in section 753, the clause governing the issuance of the writ, the expression "in custody" was substituted for the phrase "re-strained of his or her liberty." Except for minor changes in phraseology, our current federal habeas corp%s legialation is a codification of this 1874 Act. The phrase "in jail" has been omitted, but the reriser'a notes indicate that "changes in phraseology [were] necessary to effect the consolidation."*a Also, the words "for the purpose of an inquiry into the cause of the restraint of liberts" in title 13 of Revised Statutes of 1874, seetian 7;Z, were deleted be-cause they mre considered to be "meiely descriptive of the

As a corollary of the custody requirement, the common law re- quired that if the petitioner'r detention i s in violation of the "fundamental requirements of la\,-, the indiridunl is entitled to his immediate reIeme."J~ Severthelefederal legislation and Its substaso written as t o authorize flexible relief. However, until recently, these Statutes hare been construed Etrictlp to require the petitioner ubject to an immediate and confining close reading of the current federal sts that relief need not be limited to discharge from ail cuarody. Today, the relief authorized is to discharge the nnt "as luw and justice require."'? Furthermore, the 18E7 Act prmided that "if it ahall appear that the petitioner is

g5 Id. at 417, puuliw Rep. Lawrence of Ohio, COPG. GLOBE,

30th Cang., 1st

28 Rer. Stat 56 751-E3 (1874), 13 Stat. 142. seri. 4lEl.

..5228 E.S.C. b 2243 (1964)

.

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depnxwd of his or her liberty, in contravention of the constitution or lawrr of the Cnited States, he or she shall forthwith be dis-

The Supieme Court has rerentij- said of the Great Krit:

Of course, that wit a!tia).i could and still can reach behind prison walk and irm harr. But It e m do mare. It is not now and never has been a statlc, nnrrm, formalistic remedy; its scope has grown to achieie It grand purpas-the proteetion of mdwdualr againsr erosion of their right to he i r e from wrongfu! restraint3 "pan r'neir Iihert;.?6

is not limited tu reiieivi

Ariarainpi>-, tne ndtllie

le w i t of habeas corpus ha? developed hich may, in :he proper mse, issue to ief. to adjudicare promptly the raiidity of the chalimged restraint, and to determine on the meiii. the allegation of depriiationa of caniritu:ional nghr??.that these descriptions of the modern indicate to this \triter that the loner r to faahioii appropriate relief t3 petitioner.. nheiierer it appears that theie has been B violation of constitutional due praceas or statutory right..

11. THE XEASISG OF CUSTODY

t court hhs jurisdiction under the federal giaut a init of habeas co~pusto a pris- 15 sectiai. Therefore, the threshold pues-tion ahicn must...