The Mid Writ

The Republican supermajority, in an opinion written by its longstanding cruelest justice, has held that legal innocence does not entail a remedy if the judiciary is the reason that one has been deprived of liberty:

Essentially the case involves this scenario: What if it turns out that the federal courts that heard your criminal case made a mistake? And as a result of the courts’ mistake, you were convicted of something that isn’t actually a crime at all (because federal law doesn’t prohibit what you did), or, as a result of the courts’ mistake, you were sentenced to more time in prison than the law says you can be sentenced to? Can a federal court later correct the error in a federal habeas corpus proceeding when you challenge your conviction or sentence?

Today, the Court, in a 6-3 opinion by Justice Clarence Thomas, answered that question with a ‘no.’ For people watching this catastrophe happen in real time, the result is not surprising. But it is a catastrophe nonetheless. As Justice Ketanji Brown Jackson wrote in her powerful dissent, the opinion “unjustifiably closes off all avenues for certain defendants to secure meaningful consideration of their innocence claims.”

As a result of this opinion, people with illegal convictions and sentences—people who are legally innocent—will be stuck in prison for no good reason because the courts screwed up, not because they did. The law certainly did not require this result. And the Jones debacle carries a few warnings about the nightmare at One First Street.

One is that the Jones majority is part of a larger trend of the Supreme Court believing that the court (and all federal courts) are above reproach and can do no wrong. Take Justice Samuel Alito’s Wall Street Journal op-ed on Tuesday night, the one that insisted he was entitled to take free personal jet trips from hedge fund billionaires with business before the court (and also to not disclose said trips) because otherwise the personal jet seat would have gone empty. Or look at the months of gaslighting about how the influence and access campaign directed at the court’s Republican-appointed justices is all well and good because of course the justices are above reproach.

Jones is part of this trend. The cases affected by Jones are instances where a federal court screwed up. The federal court interpreted a statute incorrectly, and as a result, the court sent someone to prison for something that isn’t federal crime. Or they sent someone to prison for more time than the law actually imposes on that person. Then, when a court later recognizes the error in some other case, the incarcerated individual asks the court to fix the mistake in their case and to let them out of prison.

Justice Thomas’s six-justice majority basically shrugged its shoulders and said “too bad, so sad, we may have messed up, but you’re going to stay in prison.” As Justice Jackson wrote in her must-read dissent (which, as a disclosure, includes a citation to some of my work on this topic) the “implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents” are pretty ghastly. “Apparently,” she observed, “legally innocent or not, Jones must just carry on in prison regardless.”

And, needless to say, even “the courts can do no wrong” is a “principle” that at least for Thomas and Alito will last until they issue an opinion later this month asserting that state courts have no power to adjudicate election-related disputes at all.

Justice Jackson concludes:

I conclude with an observation. Today’s ruling follows a recent series of troubling AEDPA interpretations. All of these opinions have now collectively managed to transform a statute that Congress designed to provide for a rational and orderly process of federal postconviction judicial review into an aimless and chaotic exercise in futility. The route to obtaining collateral relief is presently replete with imagined artificial barriers, arbitrary dead ends, and traps for the unwary. And today’s turn makes the journey palpably absurd: It begins with the Supreme Court’s (rare) announcement that a certain claim for release exists and is retroactively available to incarcerated individuals on collateral review, and ends with the realization that only an arbitrarily determined sliver of eligible prisoners (those who have not had the temerity to file a prior motion) are actually in a position to even ask a court to consider whether any such relief might be provided.

 It is quite clear that the Court’s rulings in this area of the law reflect a general ethos that convicted prisoners should not be permitted to file §2255 motions or obtain postconviction relief at all. But what matters is what Congress wants with respect to the operation of the statutory provisions it enacts. And, as I have shown, Congress’s aim in crafting §2255 was to permit convicted prisoners to file postconviction motions asserting claims for collateral relief in a manner that also curbs abusive filings. Congress did not speak—one way or the other—as to what should happen if a prisoner who has previously filed a §2255 motion gets a new claim of legal innocence due to an intervening change in the law.

 Given Congress’s silence on this matter, in my view, there is simply no justification for drawing a negative inference that Congress meant for §2255 to operate in a manner that is patently inconsistent with the reasons it passed that statute, or the background principles that animated the law more broadly at the time of the statute’s enactment, or even (possibly) core constitutional principles. Instead, §2255(e) should be read—consistent with Congress’s general intent to ensure equivalence between the claims available in habeas and those that its new postconviction mechanism allowed—to permit prisoners who have a new and retroactive statutory innocence claim to file a habeas petition in lieu of a §2255 motion. Alternatively, we should honor Congress’s clear interest in preserving a prisoner’s ability to have one meaningful opportunity to have all of his claims presented to a court, by allowing Jones to file a petition asserting his new and retroactive claim of statutory innocence, notwithstanding what might otherwise be perceived as an ironclad  bar in §2255(h).

 In other words, as I see it, the negative inference that the majority draws today rests on nothing—and certainly nothing that actually derives from Congress’s intent. Nothing in the text of §2255, background principles concerning habeas relief, or AEDPA’s enactment history compels (or even supports) the conclusion that Congress intended to completely foreclose claims like Jones’s. And it is especially perverse to read the statute to lead to that result when doing so gives rise to legally dissonant, arbitrary, and untenable outcomes. So, the majority’s “straightforward” determination that this statute does preclude a prisoner in Jones’s position from filing a successive petition to assert a legal innocence claim (which it reaches by refusing to follow the procedural norm that would have correctly framed the issue as a matter of congressional intent relative to clear-statement principles) appears to stem from the Court’s own views concerning finality, not the will of Congress.

 Ultimately, of course, this all begs the question of how (and whether) Congress will respond to the Court’s systematic neutering of the balanced postconviction processes that the Legislature has established. It seems to me that today’s opinion—which unjustifiably closes off all avenues for certain defendants to secure meaningful consideration of their innocence claims—creates an opening for Congress to step in and fix this problem.

I have nothing against the invitation in the final paragraph per se. But not only is reform of the statute enormously difficult under Democratic control of Congress and a dead letter if Republicans control either or both houses, nobody can have any confidence that Republican nominated justices would read an amended statute in good faith anyway. It’s an extremely serious problem.