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To Justice Kentanji Brown Jackson, it sounded absurd: Why would legally innocent people — convicted under interpretations of the law that the U.S. Supreme Court later found to be wrong — be denied a chance to seek release from prison?
That's the scenario she contemplated as she penned her dissent to the court's June 22 majority opinion in Jones v. Hendrix
, which limited access for people in federal prisons to habeas corpus, a legal process through which people can challenge their incarceration, conviction or sentence on constitutional grounds.In the 6-3 majority opinion in the case — which involved Marcus DeAngelo Jones, a Missouri man who asked a court to vacate his sentence after a high court ruling in 2019 made him legally innocent of a federal gun offense — Justice Clarence Thomas concluded that federal law barred him from accessing habeas corpus despite his valid claims.
Justices Elena Kagan and Sonia Sotomayor issued a dissenting opinion saying the ruling "yields disturbing results." But the most blistering response came from Justice Jackson in a 39-page dissent.
"Apparently, legally innocent or not, Jones must just carry on in prison regardless," she wrote. Slamming the courtroom doors to possibly innocent people such as Jones, her dissent continued, "raises serious constitutional concerns."
Habeas corpus experts, some of whose work was referenced in Justice Jackson's dissent footnotes, told Law360 it's hard to estimate how many people will be adversely affected by the decision, but they warn of deeper, longer-lasting and potentially troubling impacts on the integrity of the justice system.
"The whole point of habeas corpus, at the core, is it is a check on government power," said Eric M. Freedman, a habeas corpus scholar and historian who teaches at Hofstra University's Maurice A. Deane School of Law. "This was one of the great contributions that Anglo-American liberty made to the world."
Freedman said the majority's ruling relied on faulty revisionism based on the assumption that habeas corpus — a legal process that, he explained, has roots in medieval England but has continued to evolve to this day — was embraced by American courts only to resolve jurisdictional issues and not issues involving errors of law.
That view undermines the principle of separation of powers that has allowed the judiciary to challenge the executive branch on matters involving fundamental rights, according to Freedman.
"It will lead to the destruction of judicial review," he said. "If you took [Justice] Thomas out to his logical extension, habeas corpus is unconstitutional, because habeas corpus after all requires the executive to do something it doesn't want to do."
Lee Kovarsky, a professor at the University of Texas School of Law and well-known habeas corpus scholar who has written about "habeas myths," said there are "quite a lot" of people who are currently imprisoned who might have already gone through a round of habeas corpus proceedings. For them, the Jones v. Hendrix decision spells trouble.
"A lot of these people are just going to sit serving very lengthy federal sentences," he said.
Jonathan Hafetz, a professor at Seton Hall University School of Law who specializes in habeas corpus, said the ruling was "problematic" because it cuts off a critically important remedy for people who are, by law, innocent.
"It's not only going to produce significant, unfair results in many cases, but it's also a further erosion of the protections provided by the habeas corpus and analogous provisions," he said. "I think it discounts the importance of liberty and the ability of the Constitution and laws to protect it."
However, in an email to Law360, Brian R. Means, a prominent post-conviction review expert and author of two treatises on habeas corpus, pushed back against commentators who criticized the ruling on the basis of its possible implications.
"The court's function is not to be unduly swayed by expected outcomes. Its mission is to examine the law and issue an opinion, typically regardless of the results — sometimes even in spite of them," he said. "While it is fair to express disagreement with the court's reasoning or consider a result unfortunate, that is fundamentally different from claiming the court is 'wrong.'"
But he nevertheless agreed with the conclusion expressed by Justice Jackson in her dissent and supported by most habeas scholars that people with illegal convictions and sentences — people who are legally innocent — will remain in prison.
"This is indeed true," Means said. "I believe Justice Jackson presents a strong case in her dissenting opinion. I, too, am troubled by the fact that some individuals may remain incarcerated even though their conduct, as it turns out, may not violate the law."
Jackson ended her dissent with a plea to Congress "to step in and fix this problem."
A Fight Over the Savings Clause
In 1948, Congress had some practical problems to solve. There were only a few federal prisons in the United States, to which people convicted of federal crimes across the country were sent.
Under Section 2241 of Title 28 of the U.S. Code, prisoners can file habeas corpus petitions only in the districts where they are confined. Therefore, all the habeas actions were burdening a few courts.
There were also logistical issues — it was decades before the advent of the internet, and it was difficult to relay entire case information from districts where people were sentenced to those where they were confined.
So Congress created an alternative process to traditional habeas by creating Section 2255, which allows federal prisoners to challenge their convictions by making motions with the courts that sentenced them. The last sentence in the section, which came to be known as the "savings clause" or "safety valve," allows prisoners to file traditional habeas petitions instead of Section 2255 motions if the process by motion turns out to be "inadequate or ineffective" in addressing their claims.
Then, in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, a broad law that strictly regulated the habeas corpus process, including forbidding prisoners to file second or successive Section 2255 motions, with two exceptions: either a new interpretation of constitutional law, or newly discovered evidence in a criminal case.
Jones' case centered on whether he could invoke the savings clause to file a traditional habeas corpus petition because the process by motion failed to address his innocence claims.
At the time he filed his first Section 2255 motion in 2002, federal case law still made him guilty of possessing a gun as a felon. Then, in 2019, the Supreme Court decided in Rehaif v. United States
that proving intent is necessary to convict a person under the federal felon-in-possession statute.Because the AEDPA prevented him from filing a second Section 2255 motion — Rehaif didn't touch constitutional law but only corrected the interpretation of a statute — Jones turned to traditional habeas corpus, invoking the savings clause and arguing that the motions process was inadequate. Courts denied Jones habeas relief, saying the clause could not be triggered in his case.
The case went to the Supreme Court, where, in June, Justice Thomas made clear that whether Jones had valid innocence claims was irrelevant: If prisoners fail to meet the standards prescribed by the AEDPA, the justice concluded, they are out of luck. Congress didn't intend for changes in law interpretations to allow for successive Section 2255 motions, so Jones lacked a permissible reason to file one, Justice Thomas wrote.
But Justice Thomas' majority opinion went further, saying that the savings clause was not designed to correct errors in interpretations of law but was only meant to give a chance at habeas only in "unusual circumstances," such as a court's dissolution or when a prisoner can't make it to court for some reason.
"Traditionally, courts have treated the saving clause as covering unusual circumstances in which it is impossible or impracticable for a prisoner to seek relief from the sentencing court," he wrote.
In her dissent, Justice Jackson rejected Justice Thomas' conclusions, saying his reading of the savings clause was flawed and lacked any historical basis.
"In the majority's telling, that circumstance only occurs, say, if the courthouse where a [Section] 2255 motion would have otherwise been filed has burned to the ground or been carried away by a mudslide," Jackson wrote.
Freedman, who is the author of two books on the history of habeas corpus, said Congress didn't devise the savings clause to cover only the type of unlikely scenarios Justice Thomas alluded to in his opinion.
"It's made up all the way down. That's all I can tell you," Freedman said, speaking of Justice Thomas' historical analysis of the savings clause. "It's dangerous fiction, not just because it's false, but because then, having written our own fiction, we think we're bound by it."
Kovarsky said he found the majority's reading of the savings clause "absurd" considering the historical context in which it was codified and Supreme Court case law that interpreted it afterward.
"The court has given it a much more robust function than just ensuring that there's some court open somewhere to take the filing," Kovarsky said. "It actually has referred to the ability to really meaningfully have an opportunity to argue that the detention is unlawful."
Kent S. Scheidegger, a conservative habeas corpus scholar, disagreed, saying it made "perfect sense" that the clause was not designed to address errors in interpretations of law, but just to confront practical issues arising from the motion process.
"The savings clause merely anticipated that the new procedure might be inadequate as a practical matter in some cases, with particular concern about unrepresented inmates who were unable to attend a hearing in the remote court of conviction," he said in an email to Law360. "What does not make any sense is the notion that Congress would block some claims from [Section 2255] only to have them made in habeas instead."
The "Negative Inference" in the Majority Opinion
Kovarsky said Justice Thomas' analysis of Section 2255's restrictions on successive motions was "probably defensible," but disagreed with his "negative inference" conclusion that because Congress didn't mention changes in statutory interpretation as permissible grounds, it meant to exclude them.
"I don't think Congress did that on purpose," he said.
In her dissent, Justice Jackson said that neither the plain text of Section 2255 nor the background principles concerning habeas relief nor AEDPA's enactment history supported such a reading of the law.
"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," she said.
Other commentators found Justice Thomas' reasoning too narrow and unsupported by evidence.
Eve Brensike Primus, a habeas scholar at the University of Michigan Law School, said Justice Thomas' theory conflicts with a doctrine known as the "clear statement rule," which instructs courts to not interpret laws in a certain way unless the statute is unmistakably clear about its intentions.
"If Congress is going to take away fundamental rights, it's got to be clear in how it's going to do that," she said. "Congress did not clearly state when it enacted the successive petition barrier that it was going to take away access to federal habeas for this category of prisoners."
On the other hand, Means was unpersuaded by such criticism.
"Every first-year law student learns the statutory construction principle 'expressio unius est exclusio alterius' — Latin for 'the expression of one thing is the exclusion of the other,'" he said. "By specifically identifying 'constitutional' law, it is reasonable to conclude that Congress did not intend to include other, unspecified grounds."
According to Brensike Primus, "it remains to be seen" whether the court's rejection of the clear statement principle could lead to other rulings limiting fundamental rights protections such as habeas corpus.
"The United States Supreme Court has made it pretty clear that they are very hostile to federal habeas corpus claims being filed by prisoners," she said. "That's an incredible limitation of the scope of the great writ, which has always been thought to be a guarantor of liberty."
--Editing by Alanna Weissman and Jay Jackson Jr.
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