Let's Back Up
Habeas corpus — Latin for "show the body" — is one of the most fundamental rights enshrined in the U.S. Constitution. Meant to serve as a check on unlawful imprisonment and arbitrary detention, it is the right that allows people to challenge the legality of their confinement in court. This right of petition is one of the oldest protections in Western law and can only legally be suspended in the United States in cases of rebellion or invasion.
That’s why the current assault on this fragile but vital safeguard against unlawful detention should alarm anyone paying attention. So spend just a minute with us to make sure you’re tracking a few key things about the state of habeas and what’s at stake for everyone.
1. The old norm wasn’t a beacon—but what could replace it is far worse.
Even before the current wave of changes threatening the right to challenge unlawful detention, habeas relief wasn’t exactly living up to its promise. We usually hear more about habeas in the criminal legal system where the systemic injustices of mass incarceration (prosecutorial misconduct, racial bias, wrongful convictions) have created countless, massive cracks for the unjustly incarcerated to slip through. But over the last few decades, Congress and the courts have imposed concerning limits on habeas that narrowed the path for correcting wrongful incarceration to instead prioritize finality. Finality is the idea that at some point, the system must treat a case as closed even when there are signs something went wrong. In practice, it means valuing closure and certainty over accuracy or even justice. One heartbreaking example of how this plays out is the case of Troy Davis, who was executed by the state of Georgia in 2011 after his habeas petition failed despite significant evidence of his innocence.
As a result, habeas petitions are more of a Hail Mary than a meaningful check on unjust incarceration. The vast majority of petitions in the criminal justice system are denied, with one review finding success rates of just over 10% in death penalty cases and under 1% in all others. And this isn’t because the system is producing fairer outcomes the first time around. Over 200 people have been exonerated after being sentenced to death. In its first two years of operation, the Kings County District Attorney’s Conviction Review Unit in Brooklyn, New York found and reversed 20 wrongful convictions in their own office. And Black people remain seven times more likely than white people to be wrongly convicted of serious crimes.
2. The administration is turning a legal right into a legal labyrinth.
The surge in habeas filings isn't happening because people have suddenly become more litigious. It's because sweeping, draconian policies advanced by the Trump administration and Congress have changed and reinterpreted immigration law to make detention without meaningful due process the default for millions of immigrants, including many who have lived in the U.S. for decades. Without the right to a bond hearing, those detained never even get the chance to appear before a judge to argue for their release.
To make matters worse, a recent Supreme Court decision prevented everyone affected by this policy from joining together to challenge the policy in court all at once, forcing them instead to file thousands of separate petitions across the country in each district where they are detained. This has rendered access to justice more arbitrary: contingent on where you happen to be and which judge you happen to see. It also has overwhelmed the legal system. And as the capacity of immigration lawyers and thousands of volunteer attorneys attempting to hold the floor on habeas rights is being stretched thinner and thinner, so, too, are our freedoms.
3. They’re not only changing the rules. They are flagrantly breaking them.
Federal courts across the country have repeatedly found the Administration’s actions unlawful, but that hasn’t stopped them. The surge in habeas petitions has been met with equally aggressive, and often flagrantly unlawful, obstruction tactics by the Trump administration. Officials have routinely moved people out of state to ensure they can’t hire lawyers or to prevent their lawyers from filing in the correct jurisdiction, repeatedly missed and ignored court-ordered deadlines to respond to habeas petitions, defied release and stop deportation orders, and targeted attorneys that are challenging them in court. Together, these tactics are a blatant attempt to undermine a fundamental right and build a blueprint for unchecked executive detention power. As one federal judge warned: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?”
These systemic attacks on habeas corpus are rapidly eroding a fundamental and already fragile protection, building a future where immigrants and citizens alike are subject to more unjust detention with less process and fewer meaningful ways to challenge it. As the federal government arrests protesters and threatens to expand the use of the death penalty, and as states expand the net of criminalization to include miscarrying women and people without housing, the need to protect habeas corpus has never been more urgent.
