The Supreme Court just ruled that at least some federal prisoners who are completely innocent must serve out their entire sentence, with no meaningful way to challenge their unlawful conviction.
One of the most fundamental principles of criminal law is that no one may be convicted of a crime unless the legislature previously passed a law making their actions illegal. If there is no law on the books that, say, marijuana possession is unlawful, then a judge cannot toss someone in jail because they were found with a joint.
The Supreme Court’s 6-3 decision in Jones v. Hendrix, handed down Thursday, does not directly attack this foundational principle. Instead, it does so indirectly by prohibiting many prisoners from ever challenging their convictions in court.
The case centers on Marcus DeAngelo Jones, a federal prisoner who was convicted in 2000 of possessing a firearm after being convicted of a felony. Nineteen years later, in Rehaif v. United States (2019), the Supreme Court held that no one may be convicted under this felon-in-possession statute unless they knew they had a felony conviction at the time that they possessed the gun.
Jones says that he (incorrectly, but genuinely) believed that his previous felony conviction had been expunged when he purchased a gun, and thus his conviction was invalid under Rehaif. In essence, he claims that no federal law criminalized his possession of a firearm, because he did not know he had a felony conviction.
Thanks to Thomas’s opinion in Jones, however, we will never know if Rehaif invalidates Jones’s conviction — that is, if he is innocent of the crime that caused him to spend nearly a quarter-century in prison — because the Court held that Jones may not challenge his conviction at all.
The reason why is a federal law, known as Section 2255, which ordinarily prevents federal prisoners from challenging their conviction or sentence more than once.
After he was sentenced, but before Rehaif raised a cloud of doubt over whether Jones belonged in prison at all, Jones successfully petitioned a federal court to vacate part of his sentence. Thomas’s opinion holds that Jones’s pre-Rehaif challenge to his sentence blew his only chance to challenge his conviction — even though Jones couldn’t have known before Rehaif was decided that he had a potentially valid claim that he is innocent.
Section 2255 contains several exceptions which allow some federal prisoners to bring a second challenge — one of which provides that Jones may bring a second challenge if § 2255’s usual process “is inadequate or ineffective to test the legality of his detention.”
But Thomas construes this “inadequate or ineffective” language very narrowly — so narrowly, in fact, that Justice Ketanji Brown Jackson mocks Thomas in her dissenting opinion for ruling that someone like Jones may only seek relief “if the courthouse where a § 2255 motion would have otherwise been filed has burned to the ground or been carried away by a mudslide.”
Under Thomas’s majority opinion, it will not just be people like Jones — people convicted under the felon-in-possession gun statute, to whom Rehaif offered new hope — who will be denied second chances at overturning their convictions. Many other people who committed no crime whatsoever will also be denied these rare-but-occasionally-legal second appeals, and will languish in prison.
Thomas’s opinion is “entirely atextual”
To understand Thomas’s reasoning, it’s helpful to understand the history of how § 2255 became law.
Before its enactment in 1948, federal prisoners who wished to challenge their conviction were required to do so in the federal judicial district where they were incarcerated. This system was unworkable, because it placed an extraordinary burden on federal trial courts that happened to be located in the same geographic district as a federal prison.
Additionally, because prisoners are often incarcerated far from where they were tried and convicted, the court that heard a prisoner’s challenge often did not have easy access to records, evidence, and witnesses it needed to weigh the prisoner’s arguments.
Section 2255 fixed this problem by requiring prisoners to challenge their convictions in the same court that originally tried and convicted them. This meant that the burden of hearing these cases, known as “habeas” petitions, would be distributed equitably among the federal district courts. And it also meant that the court most familiar with a prisoner’s case would also hear any habeas suits challenging that prisoner’s confinement.
Ordinarily, § 2255 does not allow a prisoner to bring a second habeas challenge if they were previously denied such relief, but the law permits a second challenge to proceed if § 2255’s ordinary processes are “inadequate or ineffective to test the legality” of a prisoner’s detention.
After the Supreme Court ruled in Bailey v. United States (1995) that a federal law prohibiting the use of a firearm in certain drug crimes should be read more narrowly than many courts had interpreted it, for example, most federal appeals courts permitted prisoners convicted under a broader interpretation of the law to challenge their convictions, even if they’d previously filed another habeas petition.
Thomas, however, characterizes these post-Bailey decisions as an “end-run” around federal law’s limits on habeas petitions. And he construes § 2255’s “inadequate or ineffective” provision so narrowly that there are unlikely to be many cases where it applies at all to a prisoner fighting an unlawful conviction.
In Thomas’s telling, the main purpose of this “inadequate or ineffective” provision is to protect prisoners who are unable to bring a habeas challenge in the court where they were originally convicted — such as if Congress later passed a law eliminating that court. Indeed, in a footnote, Thomas suggests that the “inadequate or ineffective” provision may largely be a relic of an age before the federal interstate highway system was built, when transporting a prisoner to the judicial district where they were convicted “posed difficulties daunting enough to make a § 2255 proceeding practically unavailable.”
One problem with Thomas’s reading of § 2255, as Justice Jackson writes in dissent, is that it is “entirely atextual.” Both Thomas and Jackson agree about the history of why § 2255 was originally enacted in 1948 — to alleviate the burden placed on district courts located near federal prisons. But the statute itself contains no language whatsoever suggesting that its “inadequate or ineffective” provision applies only when the court that would ordinarily hear a § 2255 case is inaccessible or unavailable.
Here is the entire relevant subsection of § 2255, quoted in full:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
This language does place some burdens on prisoners. It normally precludes habeas relief if a prisoner “failed to apply for relief” in the court that sentenced them, and it also precludes most prisoners from seeking relief from a court that’s already denied it to them. But the “inadequate or ineffective” exception to these general rules is broadly worded, and does not contain any language supporting Thomas’s interpretation of the law.
Justice Jackson’s alternative reading of § 2255, briefly explained
To understand Jackson’s dissent, it’s also helpful to understand the history of another federal law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which inserted many of the barriers facing prisoners who wish to file a second habeas petition into federal law.
AEDPA also added two new exceptions to the general rule that second habeas petitions are disfavored. Even after AEDPA, such petitions are permitted if they are grounded in “newly discovered evidence” that strongly indicates the prisoner was not guilty, or if the Supreme Court hands down “a new rule of constitutional law” that applies retroactively to prisoners convicted in violation of that new rule.
Thomas’s opinion places a great deal of weight on the fact that Jones — who argues that his conviction is invalid on statutory grounds and not because it violates the Constitution — cannot fit his case within either of these two new exceptions created by AEDPA.
But AEDPA did not repeal the preexisting “inadequate or ineffective” language in § 2255. Indeed, according to Jackson, Congress reenacted this exception, “using identical language,” when it rewrote much of § 2255 in 1996. And Jackson argues that this longstanding exception should allow Jones to challenge his conviction after Rehaif undermined the statutory basis of that conviction.
As Jackson writes, the real purpose of the “inadequate or ineffective” provision was not simply to permit habeas cases to proceed if a faraway court is inaccessible or shut down. It was also “to ensure that certain pre-existing postconviction claims (say, a claim of statutory innocence) could still be heard even if the statutory language Congress was adopting inadvertently barred them.”
Congress, in other words, wanted to make sure that § 2255 only changed which court would hear a habeas dispute, and that it would not cut off habeas disputes that otherwise could have been brought.
All of this matters because, in Davis v. United States (1974), the Supreme Court held that § 2255 permits prisoners bringing habeas petitions to raise both constitutional and statutory challenges to their conviction. So, if the purpose of the “inadequate or ineffective” provision — which was reenacted by Congress when it passed AEDPA in 1996 — was to preserve prisoners’ rights to bring the sort of suits that they’ve historically been allowed to bring, then Jones should be allowed to challenge his conviction.
This case is really about a philosophical dispute about the purpose of the criminal justice system
If you’ve read this far, you should be forgiven for being a little confused. Federal habeas law is notoriously complicated, and statutes like AEDPA require prisoners to jump through an array of procedural hoops that are often ill-defined in the statute itself.
To understand what’s really going on in the Jones case, one must not only understand this complicated statutory regime, one must also be familiar with a philosophical debate between the Supreme Court’s liberal and conservative factions, which has gone on for at least three decades.
Left-leaning justices have long argued that the criminal justice system should primarily try to determine whether a criminal defendant has actually committed a crime — and that there should be adequate safeguards to ensure that someone who is wrongfully convicted can challenge that conviction.
Meanwhile, justices on the Court’s rightward fringe have long argued that the primary purpose of the criminal justice system is to reach final judgments concerning an individual’s guilt. Under this view, this need for finality can even overcome a claim that a prisoner is innocent.
Thus, in his concurring opinion in Herrera v. Collins (1993), the late Justice Antonin Scalia argued that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, Thomas was the only other justice to join Scalia’s opinion.
As Republican presidents filled more seats on the Supreme Court, however, the finality über alles approach favored by Scalia and Thomas was embraced by a majority of the justices.
Thus in Shinn v. Ramirez (2022), a case involving an innocent man who was later freed after spending 29 years on death row for a crime he did not commit, Thomas complained in the Court’s majority opinion that a federal habeas court’s decision to free a state prisoner “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”
In Jones, Thomas does not simply repeat his philosophical commitment to finality in criminal convictions, he attributes that commitment to Congress — claiming that, by enacting AEDPA, “Congress has chosen finality over error correction.”
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde