Supreme Court injustice: ‘legal innocence’ is not enough

As the Supreme Court term draws to a close, attention is understandably focused on the big-ticket cases. Lost in the shuffle is Jones v. Hendrix, a habeas corpus case brought by a federal prisoner who was convicted 23 years ago, and who still has several more years to serve on his 327-month sentence, for being a felon in possession of a firearm and making false statements to acquire a firearm. Americans who pay attention to the Supreme Court need to be aware of this decision because it offers a disturbing perspective on the Court as currently constituted.

Lots of people who find themselves charged with criminal offenses claim they are innocent. Mostly, they mean they didn’t “do it.” They may claim it’s all a case of mistaken identity, or they may claim an alibi (i.e., they were somewhere else at the time). But sometimes — and it’s rare — the claim is that, whether or not they “did” what they are said to have done, it wasn’t a crime.

This kind of claim rests on the notion that the criminal statute, properly interpreted, simply doesn’t cover the defendant’s conduct. This is called “statutory innocence” or “legal innocence.” A person cannot be convicted based on conduct that is not criminal under some statute. But what if the correct interpretation of the statute is not handed down until after, maybe long after, the person is convicted and regular appellate review has been completed?

Enter Marcus DeAngelo Jones. At the time of his conviction, the case law in the Eighth Circuit did not require the prosecution to prove beyond a reasonable doubt, as an “element” of the offense of being a “felon in possession,” that the defendant knew that he was disqualified from owning a firearm. In 2019, after Mr. Jones’s appeal was over, however, the Supreme Court ruled in Rehaif v. United States that the prosecution did indeed have to prove the defendant’s knowledge of his own disqualification. That decision is binding and has retroactive effect. As a result, far from having been properly convicted, Mr. Jones suddenly had a valid claim of statutory innocence.

And so Mr. Jones sought a writ of habeas corpus. An easy case, one might think. Not so, according to six members of the Supreme Court.

The problem with Mr. Jones’s habeas claim was that before Rehaif, he had already sought postconviction relief on other grounds. That meant that his petition, based on the Supreme Court’s new interpretation, was a second or successive petition, a fact that subjected it to the procedural maze Congress and President Bill Clinton created in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Never mind that Mr. Jones’s case had nothing to do with either terrorism or the death penalty. Tucked into the statute was a “saving clause” that preserves federal prisoners’ right to file a traditional habeas petition if the postconviction remedy under a different provision of the U.S. Code was “inadequate” or “ineffective.”

Since the basis for Mr. Jones’s claim had not arisen until the Supreme Court definitively interpreted the knowledge requirement, he could not have raised the issue in his original post-trial submission. Surely the first go-round was neither adequate nor effective as to a claim he could only have made if he had been clairvoyant about what the Supreme Court would decide years later.

Nonetheless, the court ruled that the circumstances did not fall within the “saving clause.” The majority opinion by Justice Clarence Thomas (who, with Justice Samuel Alito, dissented in Rehaif) is festooned with citations to 17th, 18th and 19th century cases and refers without apparent embarrassment to the cramped and obsolete view that the “the Great Writ” reaches only cases in which the trial court lacked jurisdiction. Justices Sonia Sotomayor and Elena Kagan wrote a brief dissent suggesting that the case should have been sent back to the Eighth Circuit, which had never addressed whether there is a mismatch when the saving clause is applied to a successive petition that, like Mr. Jones’s, makes “a colorable showing” that the prisoner is “innocent under an intervening decision of statutory interpretation.”

Justice Ketanji Brown Jackson wrote a lengthy dissent which she alone signed. In it, she took on both Justice Thomas’s misuse of history and interpretive canons, and the bedrock problem that the decision leaves behind bars a prisoner who has a valid claim that the prosecution had not proved an essential element of the crime, simply because he had sought postconviction relief on other grounds before the Supreme Court clarified the elements. Where the majority found “nothing fundamentally surprising about Congress declining to make such errors remediable in a second or successive collateral attack,” Justice Jackson condemned the notion that a court could grant relief in such cases only where there was “something akin to a natural calamity,” such as “if the courthouse … has burned to the ground or been carried away by a mudslide.” Not unfairly, she referred to Justice Thomas’s treatment of the saving clause as “stingy,” and described as “nonsense” and “perverse” his effort to wriggle out of the settled rule that a clear statement is required before the court will infer a congressional intent to withdraw a “venerated” postconviction review process.

Justice Jackson concluded: “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.”

Congress should correct what Justice Thomas and those who joined him did in Jones v. Hendrix. It is intolerable that in this day and age a person with a valid claim of legal innocence cannot find a federal court to hear it. It’s too late now for Congress to fix what the court did to Mr. Jones, but it can still fix AEDPA so the same thing won’t happen to someone else in the future. For Mr. Jones, there’s one last option. Informed by Justice Jackson’s demolition of Justice Thomas’s opinion, President Biden can and should pardon Mr. Jones’s flawed felon-in-possession charge — for an offense that is in fact no offense at all.

Eugene R. Fidell is a Visiting Lecturer at Yale Law School, where he has taught habeas corpus among other subjects.