Persons who are deprived of their liberty (held in jail, prison, or a psychiatric institution) have the right to challenge the legality of their arrest or detention through a judicial inquiry or process known as habeas corpus. Habeas corpus is a centuries-old Latin phrase meaning “produce the body.” By means of a writ of habeas corpus, a court or judge may order the state to “produce the body”—in other words, to hand over the prisoner—so the court may review the legality of the prisoner’s detention.

For example, federal courts may use the writ of habeas corpus to determine if a state’s detention of a prisoner or other detainee—such as an institutionalized psychiatric patient—is lawful. A petition for writ of habeas corpus proceeds as a civil action against the state agent who is holding the prisoner in custody—usually a prison warden or psychiatric facility and treating psychiatrist.

State and federal prisoners often file a petition for writ of habeas corpus after their conviction to challenge the legality of federal laws that resulted in their detention. Habeas corpus petitions may also be used to challenge detention in immigration or deportation cases and military court detentions and convictions. And a habeas petition may be used to challenge preliminary matters in criminal prosecutions, such as (1) whether there is an adequate basis for detention; (2) removal to another federal district court; (3) the denial of bail or parole, or excessive bail; (4) the failure to provide for a speedy trial or hearing; (5) a claim of double jeopardy; (6) the legality of extradition to another state or a foreign country; or (7) the jurisdiction of the court. See 28 U.S.C. §2241.

Thus, the purpose of a writ of habeas corpus is not to determine the guilt or innocence of the detainee, but to test the legality of the current detention or confinement. It is a safeguard against imprisonment of persons detained in violation of the law—by requiring government authorities to provide valid reasons for the detention. If the habeas petition is granted and the writ is issued, it provides immediate relief from the unlawful detention by ordering the detainee be released from custody.

The right to petition for a writ of habeas corpus is guaranteed by the United States Constitution and by state constitutions.

In Virginia, as in all states, persons who are deprived of their liberty through incarceration or institutionalization have the right to challenge the legality of their detention via a judicial process known as habeas corpus. This right is enshrined in both the United States Constitution and the Virginia state constitution. Habeas corpus allows a prisoner or detainee to petition a court to review the legality of their arrest, detention, or imprisonment. The petition is typically filed against the state agent responsible for the custody, such as a prison warden or the head of a psychiatric facility. The scope of habeas corpus petitions can include challenges to the legality of federal laws leading to detention, immigration detentions, military detentions, and various pre-trial matters. The purpose of the writ is not to determine guilt or innocence but to ensure that the detention is lawful. If a court grants the habeas corpus petition, it may order the release of the detainee if their detention is found to be unlawful. The relevant federal statute governing habeas corpus petitions is 28 U.S.C. §2241. In Virginia, state statutes and case law provide the procedural framework for filing a habeas corpus petition in state courts.