Nov. 5, 2025 – The ancient writ of habeas corpus – a method for an incarcerated individual to take his or her case to a judge, perhaps for freedom – exists as more than a historical curiosity against wrongful detention. It is a law raising questions now.

The U.S. Supreme Court’s 2025-26 Term includes three cases addressing the scope of the remedy of habeas corpus as defined in federal statutes.

Tug-of-War

The writ, beginning in England’s distant past, has always been a tug-of-war against powerful authorities.

Abusive delays grew so commonplace that Parliament enacted the Habeas Corpus Act of 1679, 31 Car. 2, chapter 2, which limited to three days when sheriffs, jailors, and other authorities must “bring up the Body before the Court to which the Writ is returnable.”

By the 1700s, Sir William Blackstone praised the remedy as “the great and efficacious writ in all manner of illegal confinement … directed to the person detaining another, and commanding him to produce the body of the prisoner.”^[1]

If the prisoner brought before the court was imprisoned illegally, the judge may free the prisoner, Blackstone explained.^[2]

The U.S. Constitution enshrined the writ in article I, section 9, clause 2, prohibiting it from suspension, “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Alexander Hamilton equated preservation of the writ as an aid against despotic “arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions.”^[3]

In short, the writ served among the “greater securities to liberty and republicanism.”^[4]

Wisconsin repeated the right in its Constitution in article I, section 8(4), using nearly identical words as the U.S. Constitution.

The average person may remember the writ only from American history.

President Abraham Lincoln suspended the writ during the Civil War as a means of defending against Southern insurgency in Northern states.^[5]

U.S. Supreme Court Chief Justice Roger Taney, while sitting as Circuit Justice, rebuked Lincoln’s choice.

In Ex Parte Merryman, Taney wrote that everyone from the origins of the common law to U.S. Supreme Court Justice Joseph Story in his Commentaries on the Constitution of the United States knew that only the legislature, whose powers Article I defines, could suspend the writ.^[6]

Regardless of the unsettling nighttime military capture of John Merryman from his home, who may have assisted the Confederacy in Maryland, Taney knew he had power only to complain.^[7]

Congress fixed the problem by enacting laws supporting Lincoln’s interpretation. Some historians analyze Lincoln’s use of the suspension as prudently limited to military exigencies.^[8]

Even then, suspension applied only in combat zones where civilian courts were unavailable. Denying the writ to a Southern-sympathizing resident in peaceful Indiana was illegal.^[9]

Finality – Except

Wisconsin sets procedures for seeking the writ at Wis. Stat. chapter 782. It limits the remedy to before a “final judgment or order.”^[10]

Federal courts are a state prisoner’s last hope, governed by extensive procedural limits, 28 U.S.C. sections 2241-2255.

Provided the prisoner is not an alien enemy combatant, federal judges and justices have the power to issue the writ.^[11]

In directing the writ to the officer who holds the prisoner in custody, the judge “shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted.”^[12]

After the recipient has responded within three days of receiving the writ, the court schedules a hearing. Unless only issues of law are at issue, “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.”^[13]

Generally, the prisoner has one opportunity within a year of the act supporting the habeas petition.^[14]

Only if the U.S. Supreme Court granted retroactively a new right, new facts are available, or if the facts of conviction could not reasonably lead to the sentence, may a prisoner seek habeas protection.^[15]

For a state prisoner, application follows exhaustion of remedies – or that no effective process is available at the state level.^[16] In addition, special rules apply to state capital cases in 28 U.S.C. sections 2261-2266.

A subsequent habeas application requires approval by a U.S. Court of Appeals panel for it to proceed at the district court. The review is brief, the decision unappealable.^[17]

A case now before the U.S. Supreme Court challenges that requirement’s scope.

Appealable?

Bowe v. United States raises questions about two parts of section 2244, starting with whether the Supreme Court can hear the case.

Section 2244(b)(3)(E) says Court of Appeals decisions on a second or successive application “shall not be appealable and shall not be the subject … for a writ of certiorari.”

But habeas petitioner Michael Bowe now argues the limit doesn’t apply to him because the decision was a “dismissal” without a review of the merits.

Bowe argues that Eleventh Circuit precedent that denied his request writes into the statute, by precedent, like that in some circuits, both federal and state prisoners.

The statutory language in section 2244(b)(1) requires dismissal of “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.”

Section 2254 applies to habeas petitions from state prisoners, while Bowe is a federal prisoner for which section 2255 applies.

The amicus argues, however, that statutory history demonstrated Congress’s keen desire to increase sentencing finality by funneling all claims through the section 2254 finality determination.

Habeas the Specific Remedy?

A canon of statutory construction requires that in “a conflict between a general provision and a specific provision, the specific provision prevails” because the latter provides an exception to the general terms.^[8]

In Fernandez v. United States, the statutory challenge involves the federal habeas statute, section 2255, and discretionary sentencing reduction for “extraordinary and compelling reasons” under 18 U.S.C. section 3582(c)(1)(A).

Joe Fernandez argued for a reduced sentence, in part, because he was innocent. Subsequent statements indicated a co-conspirator lied and nearly all physical evidence of the murder pointed to that person, not Fernandez, who received a longer sentence.

The District Court granted a discretionary sentence reduction based on those concerns.

The Second Circuit reversed, disputing that sentence disparity between co-conspirators was extraordinary. It also found it compelling that they cooperated with the government, and Fernandez did not.

The actual innocence claim, the Second Circuit held, didn’t fit the sentencing reduction statute because habeas provides a more specific remedy.

Fernandez sees the statutes as separate. Habeas corpus vacates unconstitutional sentences. His sentence remains. It’s reduced for reasons available only under the sentencing reduction statute.

The government argues that section 3582(c)(1)(A) applies only to “personal – not legal – developments as bases for reducing a sentence,” such as terminal illness or other reasons for “compassionate release.”

In Olivier v. City of Brandon, defendant Brandon Olivier pleaded no contest for violating a city ordinance limiting locations of protests, paid a $304 fine, and received a ten-day suspended sentence.

He sued the city under 42 U.S.C. section 1983 for violating his First Amendment rights.

The Fifth Circuit denied his claim based on Heck v. Humphrey, 512 U.S. 477 (1994), which prohibited a state prisoner from using section 1983 to claim unconstitutional incarceration because that’s what the federal habeas statute is for.

Olivier distinguishes his case because he has no habeas claim – he’s not in jail – and does not seek to vacate a sentence. He wants only to pursue his First Amendment rights without subsequent penalty.

The city argues that Olivier failed to raise the issue with his violation, making this case a collateral attack that Heck appropriately precludes.

‘A Reflection’

“Today’s federal writ of habeas corpus is largely a reflection of our contemporary attitudes toward an ideal of fairness in the administration of justice,” a Harvard Law Review note argued in 1948, based on Supreme Court cases from 1941 to 1946 – all before the 1948 amendments that created the current habeas statutes.^[19]

A 2005 book review by Stuart Banner, Norman Abrams Distinguished Professor of Law at the University of California, Los Angeles (UCLA) School of Law, illustrates the complex nature of habeas corpus.

“The expansion of habeas corpus in the middle decades of the twentieth century, for example, was so intertwined with the revolution in constitutional criminal procedure that took place at the same time that one could scarcely imagine a discussion of the former that did not include the latter,” Banner wrote.^[20]

Technical detail and related issues create the problem of understanding what the writ really is and was, Banner explained.^[21]

While he critiqued the latest attempt at a history of the writ, Banner described the actors beyond the conspicuous one of the Supreme Court. Congress, lower courts, and the Executive Branch also shape the writ’s ancient commands.^[22]

That academic breadth, which hinders comprehensive analysis, may be beside the point for the criminal defense attorney, who sees the work of justice in freeing a wrongly imprisoned client using redress that retains its Latin name.

Endnotes

[1] Sir William Blackstone, 3 Commentaries 131 (Chicago & London: The University of Chicago Press, 1979) (1768).

[2] Id.

[3] The Federalist No. 83, 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[4] The Federalist No. 84, 511 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[5] Brian R. Dirck, Lincoln and the Constitution 73-78 (2012).

[6] Ex Parte Merryman, 17 F. Cas. 144, 148, 150-52 (C.C.D. Md.1861) (No. 9,487).

[7] Id. at 147-48, 152; Dirck, supra note 5, at 78-79.

[8] Dirck, supra note 5, at 83-85.

[9] Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 6, 107-09, 121-22 (1866) (Davis, J.).

[10] Wis. Stat. section 782.02.

[11] 28 U.S.C. section 2241.

[12] 28 U.S.C section 2243.

[13] Id.

[14] 28 U.S.C. section 2244(d) (state prisoners); 28 U.S.C. section 2255(f) (federal prisoners).

[15] 28 U.S.C. section 2244(b) (state prisoners); 28 U.S.C. section 2255(f) (federal prisoners).

[16] 28 U.S.C. section 2254(a)-(c).

[17] 28 U.S.C. section 2244(b)(3); 28 U.S.C. section 2255(h).

[18] Antonin Scalia & Bryan Garner, Reading Law 183 (2012).

[19] Note: The Freedom Writ – the Expanding Use of Federal Habeas Corpus, 61 Harv. L. Rev 657, 657 & 657 n.1 (1948).

[20] Stuart Banner, Cary Federman. The Body and the State: Habeas Corpus and American Jurisprudence. Albany: State University of New York Press, 2006, 47 Am. J. Legal Hist. 456, 457 (2005).

[21] Id. at 456-57.

[22] Id. at 457.