Georgia has played an influential role in the development of the “Freedom Writ” of habeas corpus, and its original constitution was the first in history to make access to the writ a constitutional right.

Once described by the great English scholar William Blackstone as “the most celebrated writ in the English law” and “the great and efficacious writ in all manner of illegal confinement,” the writ of habeas corpus is a basic legal procedure by which individuals illegally imprisoned, or otherwise unlawfully restrained of their personal liberty, may by court order be liberated from their custody. The writ itself requires that a person restrained of his liberty be brought into court and that an explanation be provided as to why the person is in custody.

The writ of habeas corpus, whose origins may be traced to the fourteenth century, became an established part of the English common law by no later than 1600. The writ was therefore part of the law of England transported by the settlers into the thirteen colonies in North America, and was available in every one of those colonies.

History of the Writ in Georgia

There has never been a time when habeas corpus was unavailable in Georgia. Habeas corpus became part of the law of Georgia the moment the colony was founded in 1733, and there is documentary evidence that the writ was actually being issued in Georgia as early as 1743. During the entirety of Georgia’s colonial period (1733 to 1776) both the common law writ of habeas corpus and the English Habeas Corpus of 1679 (a Parliamentary statute, extending to Georgia, which expanded the availability of the common law writ) were in effect in the colony.

Georgia’s original constitution, adopted in 1777, was the first state constitution in history to make access to the writ a constitutional right, and every subsequent Georgia constitution has included a habeas corpus clause protecting the writ. At the 1787 Philadelphia Convention that framed the U.S. Constitution, Georgia’s delegation voted against ever permitting the writ of habeas corpus to be suspended. From 1777 to 1863 the writ was authorized pursuant to (1) the habeas corpus clauses in the state’s constitutions of 1777, 1789, 1798, and 1861, (2) various habeas corpus statutes passed by the Georgia General Assembly, and (3) the 1679 English habeas act (which continued to be in effect in Georgia after statehood). Since 1863 the writ of habeas corpus has been authorized in Georgia under the habeas corpus clauses in each of the state’s constitutions and under the habeas provisions of the various Georgia Codes.

During the Civil War (1861-65) Georgia’s political leaders, concerned about arrests of civilians by Confederate military authorities, loudly and repeatedly proclaimed their support for the writ of habeas corpus as a safeguard against abuse of the arrest power. Both Governor Joseph E. Brown and the General Assembly vigorously condemned statutes passed by the Confederate Congress suspending the writ, while the Supreme Court of Georgia quietly defied those Confederate statutes by simply declining to regard the writ as suspended.

Habeas Corpus Practice in Georgia

At present the writ of habeas corpus in Georgia is constitutionally guaranteed by the Georgia Constitution of 1983, which provides: “The writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the public safety may require it.” The writ of habeas corpus is statutorily secured by Articles 1 and 2 of Chapter 14, Title 9, of the Georgia Code of 1981, and by miscellaneous other habeas corpus provisions sprinkled throughout the Code. Article 1 covers the general provisions of habeas corpus, and Article 2 addresses postconviction procedures of habeas.

The only two courts in Georgia with jurisdiction to issue writs of habeas corpus are the superior court and the probate court. Only the superior court, however, may grant writs of habeas corpus in extradition cases, capital cases, or postconviction cases.

In Georgia, a habeas corpus proceeding is a civil action, and the defendant (usually called the respondent) is the individual alleged to hold the plaintiff (usually called the petitioner) in unlawful custody. Generally, a habeas corpus proceeding is instituted by filing a petition for a writ of habeas corpus in the superior court or the probate court of the county in which the habeas petitioner is being detained. The petition must be in writing and signed under oath by the petitioner or someone acting in the petitioner’s behalf. If it does not appear from the face of the petition and any documents annexed to the petition that the petitioner is unlawfully detained, the court will either dismiss the petition or afford the petitioner an opportunity to amend it.

If the court determines that the petition sufficiently alleges that the petitioner is unlawfully in custody, it issues a writ of habeas corpus requiring the respondent to produce the body of the petitioner in court and to explain why the petitioner is detained. If material facts bearing on the legality of the restraint on liberty are in dispute, the court, sitting without a jury, will conduct a hearing. If the court determines that the petitioner has proven by a preponderance of the evidence that the custody complained of is illegal, the court enters a final order releasing the petitioner or granting other appropriate relief. If the petitioner fails to prove his case, the court enters a final order dismissing the petition and remanding the petitioner to custody.

The final order of a probate court granting or denying habeas relief may be reviewed in superior court on a writ of certiorari, with the superior court’s decision reviewable in the Georgia Supreme Court via a discretionary appeal (i.e., an appeal that takes place only if the Georgia Supreme Court in its discretion first grants permission to appeal). Where the habeas petition was originally filed in superior court, the final order of the superior court granting or denying relief is, except in postconviction cases, reviewable in the Georgia Supreme Court via a discretionary appeal. (The Court of Appeals of Georgia has no jurisdiction whatsoever in habeas corpus cases.)

Habeas Corpus Cases in Georgia

At present most Georgia habeas corpus proceedings fall into the following categories: (1) extradition cases, (2) civil commitment statute cases, (3) cases of pretrial confinement on criminal charges, and (4) postconviction cases. Historically, habeas corpus has been an appropriate vehicle for resolving child custody disputes in Georgia. However, a 1978 statute severely curtails the use of habeas corpus to litigate questions of child custody.

Extradition, Civil Commitment, and Pretrial Confinement

The Georgia Code specifically authorizes a person under arrest in Georgia whose extradition to another state is sought to apply for a writ of habeas corpus in a Georgia court. Habeas corpus relief is rarely granted in extradition cases, however, because the only issues open to litigation are whether the extradition documents on their face are in order, whether the petitioner is charged with a crime in the other state, whether the petitioner is the person named in the extradition request, and whether the petitioner is a fugitive from justice in the other state. The habeas petitioner is not permitted to introduce evidence that he is in fact not guilty of the offense for which extradition is sought.

With respect to civil commitment statutes, the Georgia Code authorizes persons committed to a state mental health facility to seek release at any time by filing a habeas petition in the appropriate court, and the Code also authorizes persons committed to a state tuberculosis hospital or facility to seek release by habeas corpus. Although habeas proceedings in behalf of civilly committed persons in Georgia do occasionally occur, they are not common.

Much more frequent in Georgia are habeas corpus proceedings brought by imprisoned criminal defendants who are awaiting trial. Pretrial habeas corpus may be used, for example, to raise claims that the arrested person has been denied a commitment hearing, or that at the commitment hearing the person was denied the assistance of counsel or some other constitutional right. Habeas corpus may also be used to raise a claim that a criminal defendant in pretrial custody was unlawfully refused bail, or that the amount of bail set was excessive.


Since around 1900 a majority of Georgia habeas corpus cases have been postconviction proceedings, and since 2004 there has been a statute of limitations on filing most petitions for postconviction habeas corpus relief. An indigent person who files a petition for postconviction habeas corpus relief in Georgia–and almost all petitioners for postconviction relief are indigent prison inmates–has no right to the appointment of counsel, even if the petitioner has been sentenced to death.

The Georgia Code provides that postconviction habeas relief may be granted if in the proceedings resulting in the conviction there was a substantial violation of the convicted person’s federal or Georgia constitutional rights.

Under this provision, as construed by the Georgia courts, postconviction relief may be granted, in the first place, if at the habeas petitioner’s criminal trial or guilty plea hearing there was a violation of the petitioner’s constitutional rights rendering the conviction invalid. The constitutional claims most often raised in support of a contention that the conviction is unconstitutional are that the convicted person received ineffective assistance of counsel at his trial or hearing, or that the person was denied due process because at the criminal trial the prosecution suppressed exculpatory evidence or because the guilty plea was involuntary. In the second place, even if the conviction is deemed constitutional, a convicted person may still obtain habeas relief if the sentence is invalid because the person’s constitutional rights were violated at sentencing or because the sentence imposes a punishment in excess of the lawful maximum for the offense. When the conviction is valid but the sentence is not, the form of relief granted usually consists of leaving the conviction undisturbed but requiring that the convicted person be resentenced. Finally, even if both the conviction and the sentence are valid, relief is nonetheless available if the habeas petitioner’s custody pursuant to the conviction is unconstitutional on grounds unrelated to the conviction or sentence, as where the petitioner’s probation was revoked in violation of a constitutional right.

Generally, however, a Georgia postconviction habeas corpus proceeding may not be used to litigate constitutional claims that could have been raised on direct appeal, or to relitigate claims that were considered and rejected on the direct appeal. Nor may habeas corpus generally be used to relitigate constitutional claims rejected in a previous habeas proceeding instituted by the petitioner.

A superior court order denying postconviction habeas corpus relief may not be appealed to the Georgia Supreme Court unless that court in its discretion agrees to allow the appeal, whereas the state may as a matter of right appeal an order granting postconviction relief.

Some postconviction habeas decisions of the Georgia Supreme Court have been nationally recognized as civil liberties milestones. In Nelson v. Zant (1991), for example, the court granted relief to an innocent person who had been imprisoned on death row for ten years following a trial at which the prosecutor in violation of due process had withheld exculpatory evidence. More recently, in Humphrey v. Wilson (2007), the court held that a mandatory ten-year prison sentence imposed on a teenager for having consensual sex with another teenager violated the constitutional right against cruel and unusual punishments.

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