Document Type

Book Chapter

Publication Title

America's experiment with capital punishment : reflections on the past, present, and future of the ultimate penal sanction

Publication Date



In legal terms, habeas corpus is simply the name for the procedure by which a court inquires into the legality of a citizen's detention. But habeas corpus is rarely discussed in merely legal terms. The name carries a special resonance in Anglo-American legal and political history: habeas corpus is celebrated as the Great Writ of liberty.

The reason is straightforward. The availability of habeas corpus means that if an individual is found to have been restrained unlawfully, the court can release him or her - thereby enforcing the rule of law and frustrating governmental oppression. Attempts to extend the range and efficacy of the writ have consequently been inseparably connected for centuries with attempts to secure justice for those who at any particular moment find themselves execrated by the dominant forces in society.

The present discussion concerns the situations that arise when a state prisoner files a petition in federal court challenging his or her criminal conviction. Such a petition calls upon the federal court to decide, in the words of the federal habeas corpus, statute, whether the prisoner is being held "in custody in violation of the Constitution or laws or treaties of the United States" (28 U.S.C. 2254(a)).