Given the complexity of habeas corpus law,1 one can understand why “fairminded jurists”2 have disagreed over the circumstances under which a person in government custody may challenge his3 sentence or conviction. But amid these debates, Americans have taken a bedrock principle of the criminal legal system for granted: that it is unconscionable for innocent people to be incarcerated for crimes they have not committed.4 Six Supreme Court Justices have just made it more difficult to effectuate this truism. Last Term, in Jones v. Hendrix,5 the Court curtailed incarcerated people’s ability to seek habeas corpus review of their convictions. Jones held that a federal prisoner who filed a motion to have his sentence vacated, set aside, or corrected, and who could not file a subsequent motion because his new claim did not fall within one of the two exceptions to the statutory bar on second or successive motions, does not qualify for federal habeas review6 even if he is not guilty of the crime for which he is imprisoned. And the last thirty years demonstrate that neither Congress nor the judiciary is willing to vindicate the rights of wrongfully incarcerated innocent people.
This case began twenty-eight years ago. In 1995, Marcus De’Angelo Jones was convicted of several felony offenses, at least one of which he agreed to plead to.7 As a collateral consequence of his convictions, he was barred from possessing a gun upon his release from prison.8 However, Mr. Jones mistakenly believed his felony convictions would be expunged from his record five years after signing his plea agreement, rendering him reeligible to legally own a gun.9 So, after serving his sentence, waiting the supposedly sufficient five years, and clearing background checks run by both a licensed gun seller and the local police,10 he bought a gun in 1999.11 Thinking the purchase was legal,12 Mr. Jones openly admitted to possessing the gun13 until his arrest later that year for an unrelated matter.14 Mr. Jones was subsequently charged with two counts15 of being a felon in possession of a gun16 and one count of making a false statement to acquire a gun.17 At trial, he was found guilty on all counts and sentenced to twenty-seven years in federal prison.18
After his conviction became final,19 Mr. Jones sought relief through 28 U.S.C. § 2255, the statute governing federal prisoners’ motions to “vacate, set aside or correct” an erroneously imposed sentence.20 Though the district court denied his § 2255 motion, the Eighth Circuit reversed and remanded, holding that one of Mr. Jones’s felon-in-possession convictions should be vacated.21 The trial court acquiesced without changing the length of Mr. Jones’s sentence.22
Nearly two decades into Mr. Jones’s sentence, a Supreme Court decision reinterpreting the felon-in-possession statute cast doubt on the legality of his conviction. In Rehaif v. United States,23 the Court announced that felon-in-possession prosecutions require “the Government [to] prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”24 Because he consistently asserted that he believed his record was expunged,25 and because this belief was thoroughly memorialized,26 Mr. Jones thought he could raise a colorable claim of legal innocence under Rehaif. In 2019, he filed a habeas corpus petition.27
The district court dismissed the petition for lack of jurisdiction.28 It explained that a federal inmate may file a habeas petition only when a motion under § 2255 would be “inadequate or ineffective to test the legality of his detention.”29 Mr. Jones argued that this exception, often called the “saving clause,”30 applied in his case because § 2255 was, in fact, inadequate to test his detention: he was barred from filing another § 2255 motion because he had already filed one,31 and the underlying reason for his subsequent petition, a new rule of statutory interpretation announced by the Supreme Court, was not one of the two exceptions allowing for second or successive motions outlined in the statute.32 But the district court disagreed, determining that “[n]othing in th[e] statute authorizes a federal prisoner to bring a successive § 2255 motion based on a ‘new rule of statutory construction,’ even one that gives rise to a claim of actual innocence.”33
The Eighth Circuit affirmed.34 Writing for the panel, Judge Gruender35 explained that Mr. Jones’s argument was foreclosed by circuit precedent; a procedural bar to filing a second or successive § 2255 motion was not, on its own, enough to render the statute inadequate.36 Acknowledging that the change in law post-Rehaif, combined with the procedural barrier, was cause for reconsideration, and recognizing that “[m]ost circuits would [have] allow[ed] a petitioner to invoke the saving clause in a case like Jones’s,”37 Judge Gruender nonetheless sided with the minority of circuits and forbade Mr. Jones from accessing habeas on the grounds that § 2255 was an effective vehicle for him to raise his innocence claim the first time he sought relief.38 Mr. Jones appealed.
The Supreme Court affirmed.39 Writing for the majority, Justice Thomas40 began by recounting the origins of § 2255. Historically, any person incarcerated in federal prison could file a habeas corpus petition once his conviction became final.41 Habeas petitions can be filed either in one’s convicting court or the district where the incarcerated person is detained,42 and many incarcerated people chose the latter.43 Since federal prisoners are concentrated in a few locations, the district courts in those areas were inundated with habeas petitions.44 Congress enacted § 2255 to alleviate the burden on those courts; the statute requires prisoners to seek review of their sentences in their sentencing courts45 and, per the majority, allows them to file habeas petitions only in the “unusual circumstances in which it [would be] impossible or impracticable for a prisoner to seek relief from the sentencing court.”46
Nearly fifty years after passing § 2255,47 Congress again restricted detainees’ ability to pursue collateral review. The Antiterrorism and Effective Death Penalty Act of 199648 (AEDPA) amended § 2255 by imposing a one-year limitation period for filing motions under the statute49 and barring detainees from filing a second or successive motion except in two circumstances: when newly discovered evidence would exonerate them50 or when the Supreme Court announces a new rule of constitutional law and makes that rule retroactive.51 Notably, however, AEDPA did not amend § 2255’s saving clause. Therefore, over the last twenty-eight years, some circuit courts interpreted the saving clause to permit detainees to file habeas petitions when they were barred from filing § 2255 motions by the statute’s near-total ban on second or successive motions.52 Mr. Jones argued that the Court should adopt this interpretation: since he had already used his one shot at a § 2255 motion, and since his new claim was not saving clause–eligible, the statute was ineffective to test the lawfulness of his detention. But the Court disagreed.53
Meanwhile, the Government argued54 that § 2255 would be inadequate for considering a federal prisoner’s successive motion when he could raise a showing of factual innocence that did not fall within the statute’s two exceptions.55 It reasoned that Congress (via AEDPA) had not spoken clearly enough56 to “close the door on pure[ly] statutory claims not brought in a federal prisoner’s initial § 2255 motion.”57 The Court rejected this argument too, stating that the only exceptions to the bar on successive motions a court should consider are the two outlined in § 2255(h): new evidence or a new rule of constitutional law.58
As a result, Mr. Jones was stuck. He used his one chance to file a § 2255 motion before Rehaif announced the change that could have exonerated him.59 So even though he was likely legally innocent of being a felon in possession,60 he had no recourse. Why? Because the Court believed that letting Mr. Jones raise his claim would flout Congress’s desire for finality and comity in criminal cases.61
Justices Sotomayor and Kagan jointly dissented.62 Agreeing with the Government, they asserted that habeas should be available to incarcerated people who cannot raise claims under § 2255 when “they can make a colorable showing that they are innocent under an intervening decision of statutory construction.”63 Per their interpretation, AEDPA did not disturb the longstanding principle that habeas should always be available to the innocent, and the case should have been remanded.64
Justice Jackson also dissented.65 She recounted the history of § 2255 differently from the majority, explaining that it was meant to maintain, not narrow, detainees’ ability to seek postconviction review and that the saving clause was written expressly for that purpose.66 Acknowledging that AEDPA restricted habeas, she nonetheless argued that Congress, by not altering the saving clause when adding said restraints, intended to preserve detainees’ ability to file habeas petitions when their claim was grounded in innocence, as had historically been possible.67 And contra the majority, which claimed Congress spoke clearly by articulating only two exceptions to the bar on successive motions, Justice Jackson argued that Congress’s silence about how the statute would apply in situations where a detainee’s claim is based on legal innocence did not support the Court’s “negative inference” and instead could be explained by AEDPA’s inartful drafting.68
Justice Jackson’s dissent ended with several critiques and observations. She criticized the majority for not using the clear statement rule, which would have yielded a more accurate result by demonstrating that AEDPA was not intended to prohibit legal innocence claims from being raised in federal habeas if filed after the petitioner had already raised a claim under § 2255.69 She chastised the Court for “downplay[ing] the stakes in th[e] case” by characterizing Mr. Jones’s claim as merely statutory rather than as one of innocence, which helped the majority demarcate the claim as outside the scope of pre-AEDPA federal habeas.70 She pondered whether there was an Eighth Amendment “cruel and unusual punishment” issue in continuing to detain someone who may be innocent.71 Finally, she lamented that the Court had further turned “postconviction judicial review into an aimless and chaotic exercise in futility,”72 calling on Congress to “step in and fix th[e] problem” the Court has created in its AEDPA jurisprudence.73
Both the majority and Justice Jackson recognized that, for people in Mr. Jones’s position to qualify for habeas relief, Congress must amend the statutes governing collateral review. But Congress is well aware of the problems it has created — and that the Court has exacerbated — for those seeking collateral review and has not enacted meaningful reforms on behalf of innocent incarcerated people.
Jones is part of the Court’s general habeas jurisprudence, which considers postconviction remedies for anyone held in government custody. Generally, incarcerated people seeking review of their convictions assert that an error or constitutional violation has tainted the proceedings or outcome of their criminal case.74 Collateral review is a critical tool for vindicating these people’s constitutional rights, even if they never claim they are innocent. But the American public is more interested in, and sympathetic to, the plight of the wrongfully convicted.75 Though they comprise a small percentage of those seeking collateral review,76 possibly innocent prisoners are the face of criminal legal reform.77 And though this focus on innocence is controversial,78 the Jones decision is especially important because it is an example of the Court shunning someone in the most favored class of criminal appellants: an innocent man in prison.
There are two ironies in Mr. Jones’s case. First, his situation is arguably the exact reason why habeas exists. Postconviction review is controversial. Critics describe it as antithetical to federalism,79 subject to manipulation,80 and a drain on judicial resources.81 Indeed, AEDPA is the crowning achievement in a decades-long movement to shrink collateral review.82 But most advocates for a conservative collateral review regime have been careful to avoid suggesting limiting postconviction remedies for the innocent. For example, Judge Friendly, in an article explicitly calling for collateral review to be sharply curtailed, stated that he would “allow an exception . . . where a convicted defendant makes a colorable showing that an error, whether ‘constitutional’ or not, may be producing the continued punishment of an innocent man.”83 Later, AEDPA’s proponents, furious over prisoners “mak[ing] a mockery of the criminal justice system by using every trick in the book to delay imposition of their sentences,”84 still attempted to write the Act such that innocent people would not be trapped behind bars.85
But, perversely, the Supreme Court has made it harder for innocent people to get postconviction relief. Consider Herrera v. Collins.86 There, the Court assessed a state prisoner’s assertion of his innocence in a second habeas petition based on new evidence: affidavits asserting that someone else committed the murders for which Mr. Herrera was imprisoned.87 The Court rejected Mr. Herrera’s innocence claim not because it was without merit but instead because it did not, by itself, entitle him to federal habeas relief.88 Innocence, the Court reaffirmed,89 could be used as a gateway90 for litigating constitutional issues, but could not be the sole claim in one’s habeas petition.91 To the Court, Mr. Herrera was not innocent, irrespective of his affidavits; because he was found guilty at trial, and because the trial’s procedures did not violate his constitutional rights, the new evidence could not be considered.92
There is a big problem with innocence qualifying only as a gateway for incarcerated people to seek habeas rather than being an adequate cause in itself: AEDPA, and the Court’s AEDPA jurisprudence, have made it nearly impossible for the incarcerated to successfully raise constitutional claims. Procedural barriers,93 prohibitions on considering new evidence,94 and a lack of right to counsel on appeal95 all seriously undermine the United States’s system of postconviction review. Jones is the embodiment of this issue, where the Court’s fidelity to procedure and finality takes precedence over the substance of one’s claim.
Given this state of affairs, one might think Congress would intervene to fix habeas. But it has not. Congress knows the importance of habeas corpus.96 And at least some legislators understand that AEDPA is unconscionably restrictive: Representatives Dennis Moore and Donald Payne, Jr., introduced the Justice for the Wrongfully Accused Act97 in 2009, which proposed to remove the procedural and evidentiary bars for second or successive habeas petitions based on actual innocence claims.98 Representatives Joe Kennedy III and Hakeem Jeffries’s bill, the Citizen Justice Restoration Act of 2020,99 would have expanded habeas by allowing federal courts to reverse state court “adjudication[s] . . . in error,”100 making all new constitutional rules automatically retroactive,101 and creating another exception to the bar on successive petitions based on the announcement of a new rule of constitutional law even if the same claim was raised in the first petition.102 And Representative Henry C. Johnson’s Effective Death Penalty Appeals Act,103 introduced both in 2009 and 2020 and cosponsored by numerous representatives each time, proposed allowing successive petitions in federal habeas review of both state and federal convictions when the basis for the claim is the petitioner’s innocence.104 None of these Acts were ultimately enacted.105
One can understand why legislators are hesitant to create a workable system of collateral review. Public acknowledgement of mass incarceration106 notwithstanding, politicians may be wary of being perceived as sympathetic to criminals.107 And since people with criminal convictions are often disenfranchised,108 politicians have no incentive to pass laws on their behalf. Congress’s choice is, effectively, between enacting unpopular reforms in the name of justice or doing nothing.
Finally, the second irony: were Mr. Jones a state prisoner seeking state habeas review, he may have had his claim heard. Even Texas, infamously draconian on criminal matters,109 allows the type of innocence claim Mr. Jones sought to raise.110 This incongruence highlights the absurdity of our nation’s collateral review system. Absent meaningful reforms, the United States will continue to be blemished by our capricious criminal legal system, where innocent people, like Mr. Jones, remain trapped behind bars.