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June 22, 2023

Early (mostly critical) commentary on Jones v. Hendrix

Because I had the honor of spending my afternoon on Capitol Hill, I have not yet had a chance to read closely the Supreme Court's important new ruling on federal collateral review in Jones v. Hendrix (basics here).  But a number of folks have apparently had time not only to review Jones, but also write up some commentary (including some in comments to this blog).  Here is a round-up of some of the early commentary I have already seen: 

From Chris Williams at Above the Law, "Sullcrom Is Super Proud Of Themselves For Making It Easier For The State To Confine The Innocent: I hope Jones takes some solace in knowing that he may actually be one of the innocent ones."

From Kent Scheidegger at Crime & Consequence, "Major Victory for Finality of Judgments"

From Leah Litman at Slate, "Clarence Thomas’ Latest Criminal Justice Ruling Is an Outright Tragedy"

From Ilya Somin at The Volokh Conspiracy, "A Troubling Supreme Court Habeas Decision: The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - one who never had an opportunity to challenge his incarceration on that basis."

From Ian Millhiser at Vox, "The Supreme Court’s latest opinion means innocent people must remain in prison: Clarence Thomas’s majority opinion ensures that innocent people will spend years behind bars."

UPDATEI have seen a few more pieces on Jones (and I am hoping to get some time to write up my thoughts this weekend):

From Chris Geidner at Law Dork, "SCOTUS rules that some legally innocent people can't even challenge their imprisonment"

From Thomas Root at Lisa Legalinfo, "Judge Friendly Had It Right: Innocence Really Is Irrelevant."

From Jordan Rubin at MSNBC, "Ketanji Brown Jackson calls out majority for unjustly ignoring innocence claims: All three Democratic appointees dissented from the GOP ruling, but Jackson wrote her own 39-page dissent."

June 22, 2023 at 07:31 PM | Permalink


It is so easy to mislead: From Ilya Somin at The Volokh Conspiracy, "A Troubling Supreme Court Habeas Decision: The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - ONE WHO NEVER HAD AN OPPORTUNITY TO CHALLENGE HIS INCARCERATION ON THAT BASIS."

The defendant had ample opportunity to raise the claim that ultimately succeeded in Rehaif: he could have raised that argument on direct appeal and on his first 2255. Had he done so, HE could have been the prevailing litigant that created the new rule instead of Rehaif. What Ilya REALLY means is that Jones never had the opportunity to invoke the Supreme Court decision that would have sustained his claim (had he bothered to make it). I have no qualms -- none -- about denying a successive collateral attack remedy to someone who was tried and convicted under the law as it was properly interpreted at the time of his conviction - and through the time of the first collateral attack. At some point, finality interests must take precedence, and Congress told us the two narrow categories that justify a successive 2255 motion. This claim is not in either category. So if people like Jones deserve a yet another chance to undo their long-since-final convictions, Congress must amend AEDPA.

Posted by: Da Man | Jun 23, 2023 8:30:29 AM

Dan Man: You say, "At some point, finality interests must take precedence." Can you explain more if you see a virtue in finality for persons who are still serving a prison term based on a wrongful federal conviction? Do you feel finality must take precedence for factually innocent persons in prison or only for legally innocent persons in prison?

I understand your view that Congress made a choice to freeze out, through AEDPA, some legally innocent persons and so it is up to Congress to decide if it wants to "fix" the problem in Jones. But I would be grateful to have a better sense of if/why you think finality is important in this context. Do you think there are so many people in federal prison with viable legal innocence claims that it is more important to shut the courtroom to all of them than to take the time to sort them out and to provide relief to the truly legally innocent?

Put slightly differently, as a policy matter, would you advocate for Congress to fix Jones through an amendment to 2255?

Posted by: Doug B | Jun 23, 2023 9:44:16 AM

Da Man --

"The defendant had ample opportunity to raise the claim that ultimately succeeded in Rehaif: he could have raised that argument on direct appeal and on his first 2255. Had he done so, HE could have been the prevailing litigant that created the new rule instead of Rehaif. What Ilya REALLY means is that Jones never had the opportunity to invoke the Supreme Court decision that would have sustained his claim (had he bothered to make it)."


Defendants all the time make claims they know or believe are losers on the present state of the law, in order to preserve them for making their pitch to a higher court. As you correctly point out, the defendant in Jones could have done exactly that. He didn't. And he did all the acts the indictment charged him with doing, and is therefore "guilty" as that word is used in ordinary conversation.

Unless finality is to be entirely thrown over the side of the boat, then by definition it has to cut off SOME plausible claims. But we live in a world of trade-offs and choices, in which at some point we need to quit litigating old cases to get to the legions of new ones in need of initial adjudication. Where that point is is subject to legitimate debate, but the point the majority chose here is perfectly reasonable.

Posted by: Bill Otis | Jun 23, 2023 11:13:42 AM


As I said, the conviction was correct under the law (as it was understood) all the way through the time of direct appeal and first 2255. There is always a possibility that Congress later will repeal the criminal statute or reduce its penalty, but make those changes prospective only. There is always a risk that a court later will narrow the statute of conviction, sometimes in a way that is totally unforeseeable. No one wants to discuss this, but Jones himself could have been the one to make the argument that ultimately prevailed in Rehaif (but as far as I can tell he never even tried.) So while I agree he theoretically may be legally innocent under the subsequent interpretation of 922(g) (putting aside the SG's argument that his innocence claim fails on the facts), he is not factually innocent. He committed the crime he was charged with and was correctly convicted under extant law at the time. This issue arises only because of the view that decisions of statutory construction automatically apply retroactively (because the court is saying what the statute always meant, even if that new construction comes totally out of the blue).

So I have no qualms with the fact that Congress in enacting AEDPA stripped defendants in this situation of a collateral attack remedy: after all, habeas traditionally understood could never have been used to challenge the validity of a conviction on this basis. Such attacks are a relatively recent phenomenon, an expansion of habeas that started in the mid-twentieth century. It was only in 1974, in Davis, that the SCOTUS first suggested that a first 2255 could be used to raise a claim like Jones wanted to raise under 2241 but -- importantly -- the defendant in Davis complained that the Ninth Circuit had refused to give him the benefit of a new SCOTUS decision on direct appeal despite giving that benefit to another identically situated defendant. So Davis can be viewed more as an effort to police arbitrariness in the direct appeal process -- something the Supreme Court did in 1987 with its holding in Griffith v. Kentucky. But broader language in Davis led lower courts to believe that not only were legal innocence claims cognizable, they were obligated to apply retroactively new narrowing constructions, even though Davis left it to the lower court to decide whether the new SCOTUS decision should apply retroactively under the pre-Teague retroactivity rules. Perhaps ironically, Justice Rehnquist, who dissented in Davis, acknowledged in his Bousley opinion that narrowing constructions of federal criminal statutes automatically apply retroactively on a first 2255, although no SCOTUS decision had previously so held.

In the end, I get how easy it is to make the Justices in the Jones majority look like a bunch of ogres; after all, if there is a straight-faced way way to construe 2255 and 2241 to allow a legally innocent person to collaterally attack their conviction, then why let things like separation of powers get in the way? But the people who make those arguments ignore what I said at the outset: Jones' conviction was correct under the law as it existed at the time of his conviction, at the time of his direct appeal, and at the time of his first 2255. Finality takes over at that point, if not earlier and is entitled to consideration. The Great Writ never was available for a claim like Jones's, so it does not offend me that the Jones majority has interpreted AEDPA as precluding resort to 2241 to raise a claim that the original drafters of 2241 (and its predecessor statutes) never would have thought cognizable (even on a first collateral attack). The remedy lies with Congress (to amend the statute) or with the President (to pardon or commute the sentences of those who claim they are actually innocent under the narrowed statute).

Da Man

Posted by: Da Man | Jun 23, 2023 11:31:31 AM


You are a breath of fresh air amid the stench emanating from the hand-wringing over this case.

Da Man

Posted by: Da Man | Jun 23, 2023 12:06:04 PM

Da Man, you still have not really explained what value you see in finality here when someone remains locked in a cage for a conviction/sentence that we have now decided is legally wrong. Of course, I get that the conviction/sentence seemed legally right when imposed, and I am not suggesting that the defendant should get financial compensation for being subject to a legally wrongful conviction/sentence or have other remedies. But I am asking what you see as the value of making people stay locked in a cage on the basis of a conviction/sentence that we have now decided is legally wrong.

Again, I get that you do not think the Great Writ historically provided a remedy for those imprisoned on legally wrongful grounds, and I also get that you do not think existing federal statutes provide a remedy for this class of persons imprisoned on legally wrongful grounds. But I am trying to tease out what underlying value you think is served when you say "Finality takes over at that point, if not earlier and is entitled to consideration." What value flows from "finality" that you think needs "consideration" when a conviction/sentence is later determined to be indisputably legally wrong AND THE PERSON WRONGFULLY CONVICTED/SENTENCED IS STILL IN PRISON?

I have put this key point in caps, because I struggle to even frame this as a "finality" issue when a person is still actively serving a prison term. As I see it, a legally wrongful conviction/sentence is not truly "final" if the state is still depriving a person's liberty through imprisonment on the basis of that wrongful conviction/sentence. Put enough way, I understand why Jones says give consideration to me as I am locked in a cage wrongfully; I do not understand why it is a potent response to say but we must also give "consideration" to "finality" unless and until I better understand what values are served by keeping someone incarcerated on a now wrongful conviction/sentence.

I see the term "finality" stressed by you and the Jones majority opinion, but I am still struggling to understand what you think is the underlying value. Is it, as you see it, the "rule of law"? You mention "separation of powers," but I do not think we'd say Congress has the right to close the courtroom door to the indisputably factually innocent person. So what value is served by closing the courtroom door to the indisputably legally innocent person?

Posted by: Doug B | Jun 23, 2023 1:17:26 PM


The answer, in a nutshell, is "see Bill Otis's post. The criminal justice system cannot function if judgments like these can be reopened. The resources spent litigating whether, under a correct understanding of the law, a defendant tried twenty years ago is actually innocent are enormous -- think about how many times the SCOTUS has narrowed a criminal statute in the last 30 years (Bailey, Cheek, Ratzlaf, Skilling, Rehaif, Taylor [there are more]). In each case we have to dig out the transcript (and maybe have a hearing) on the question whether no rational jury would have voted to convict under the new standard. Imagine a field goal kicker who kicks a field goal. Now imagine we have to decide whether the ball kicked by that kicker would have cleared the uprights had those uprights been set 10 yards further back or the upright set 20 feet higher. A better use of those resources would be spent investigating and prosecuting ongoing crime.

Again, I agree that a truly "actually innocent" prisoner should be afforded a remedy: Congress must supply it. It offends no constitutional principle for someone who had a full and fair trial and was properly convicted under extant law to be deprived of access to a successive collateral attack, even if that attack would succeed on the merits.

Posted by: Da Man | Jun 23, 2023 1:37:04 PM

guys, come on, at least pretend to know what's happening, the defendant did raise the Rehaif argument at trial and on direct appeal; the courts (wrongly, we now know) rejected it.

Posted by: AFPD | Jun 23, 2023 2:11:22 PM

Thanks for your response, Da Man. I surmise that, as you see it, there may be so many people incarcerated (legally) wrongly for decades in our federal prisons, it is not a good use of resources to give those people any court access to show they are wrongfully incarcerated. In the name of efficiency and crime control, it is better to keep them all incarcerated (at whatever cost), even when there may be no dispute that their convictions/sentences are legally wrong, and then spend our (saved?) resources seeking to convict and sentence more people (and if it turn out in some cases we get that legally wrong, too, so be it).

I understand the sentiment, but I have never been convinced by the notion that, after finding the resources to get it wrong and to keep folks locked up for decades, we do not have the resources (let alone a moral obligation) to later get it right. This is not a football game, it is the federal government depriving its citizens of their liberty in ways we have now decided are legally wrong. I try in my own life to fix my mistakes that hurt other people even if I did not think I was making a mistake when I first acted. I would hope my government would aspire to act similarly.

Posted by: Doug B | Jun 23, 2023 2:12:11 PM

Doug, let me try to give my answer to your question to Da Man.

When the issue is legal error, the perfect remedy is a new trial.

But. as reflected by the Speedy Trial Clause, delay makes it harder to try a case. The presumption in favor of finality reflects that concern. We place a higher burden on the defendant to set aside the earlier judgment because that judgment is substantially more likely to be correct than any new trial and we only set aside an "old" judgment when we truly lack confidence in the outcome. This basic concept is reflected in the difference between: 1) the standard of review on preserved error; 2) the standard of review on plain error; 3) the standard for ineffective assistance claims; and 4) the standard for cause and prejudice or actual innocence on defaulted claims.

In Jones, the issue is legal innocence (i.e. we did not make the government prove what we should have made them prove). It's not factual/actual innocence. Legal innocence is, 99% of the time, just a claim of legal error and, if the parties were psychic, the government would likely have been able to supply the missing evidence at trial.

Posted by: tmm | Jun 23, 2023 3:33:45 PM

AFPD - noted, thank you.

Posted by: Da Man | Jun 23, 2023 4:46:54 PM

"There is an inevitable attraction in the position that a person convicted of a serious crime should receive a new trial whenever a later decision of the highest court, indicates that, with the benefit of hindsight, a different course should have been followed at his trial in any consequential respect. Yet for courts to yield broadly to that attraction not only would cause “litigation in these criminal cases [to] be interminable” 332 U.S. at 182, 67 S. Ct. at 1593, but, in the sole interest of those already convicted of crime, would drastically impair the ability of the Government to discharge the duty of protection which it owes to all its citizens. * * * When a defendant who has been tried fairly in accordance with the law as it was understood at the
time seeks judicial relief because of new light on a point of law affecting an aspect of his trial, his request must be balanced against the rightful claims of organized society as reflected in the penal laws. All this is the wisdom behind the doctrine that
limits collateral attack on criminal judgment."

United States v. Sobell, 314 F.2d 314, 324-325 (2d Cir.) (Friendly, J.), cert. denied, 374 U.S. 857 (1963).

Posted by: Da Man | Jun 23, 2023 5:01:22 PM

Da Man and tmm, the concern of finality is understandable if there is the possibility of reconviction using the right standard. But in many cases of legal innocence, the issue is not one of trying the right facts because everyone may agree that the facts cannot possibly support a conviction under the proper understanding of the statute. Consider, for example, the Wooden case where SCOTUS explained that one series of offenses could not qualify as an ACCA predict to turn a 10-year max sentence into a 15-year min. Lots of other folks got convicted under the wrong law that could no longer support at least 5+ years of additional time under the proper understanding of the statute. Other examples can be given AND, critically, we are not debating whether a defendant can PREVAIL on claims to overturn a conviction or sentence, but only whether he even gets to file his claims.

Notably, courts have long developed equitable remedies to deal with wasteful litigation, and that's not really at issue. At issue is whether a person languishing in prison based on a conviction/sentence now legally suspect can even get a court to hear a claim that will be a conclusive winner now for those who win the timing lottery. I do not think it is sound or wise to keep now innocent people in prison based on wrong law based on timing lotteries.

Posted by: Doug B. | Jun 23, 2023 5:57:59 PM

Da Man --

No fair quoting Henry Friendly, who had the highest GPA in the history of Harvard Law School and was its first summa cum laude graduate. Among his clerks were my old boss at DOJ, William C. Bryson; John Roberts; and none other than Merrick Garland.

Posted by: Bill Otis | Jun 23, 2023 6:29:20 PM


According to Doug, I'm nothing if "not fair" given my approval of the Jones majority opinion. So I found something you both agree on.

Da Man

Posted by: Da Man | Jun 24, 2023 8:05:33 AM

Da Man --


Doug and I agree more than either of us routinely admits. For example, we agree on two of the most important points in criminal law: Neither of us is a death penalty abolitionist, and both of us would like to see the return of (at least) presumptive guidelines. But we tend not to emphasize areas of agreement, as it would ruin both our reputations.

Glad to see you on the site. I'm curious about your background, it you'd care to say.

Posted by: Bill Otis | Jun 24, 2023 10:16:38 AM

At the risk of stirring the pot, Bill, do you agree with my view that, in general, our criminal justice systems ought to try to fix its past BIG mistakes?

Arguably our systems' frequent use of criminal history as a significant aggravating factor at sentencing is a version of mistake fixing --- ie, we mistakenly hoped the offender would learn about the importance of desisting from crime via prior convictions/sentences, and so now the offender will get much more punishment. Similarly, when persons are let out on parole or other forms of community supervision, they can be subject to harsh punishment if/when we discover that it was a mistake to trust them to do everything expected of them back in the community.

Put another way, we have mechanisms in place to fix mistakes based in under-punishment. Do you share my view that we should, in general, also have mechanisms in place to fix BIG mistakes based in over-punishment?

I should be quick to note that we do already have many such mechanisms in place in the form of direct appeals and various (but often limited) means of collateral appeals. And I am actually quite sympathetic to the notion that, at some point, the courts cannot and should not entertain any and every little mistake asserted by every convicted person. But when a clear legal mistake results in years of excess imprisonment that is still being served, do you share my view that our criminal justice system ought to try to provide a means for the incarcerated to get a fix to this kind of past BIG mistake?

Posted by: Doug B | Jun 24, 2023 10:51:19 AM

Doug --

"At the risk of stirring the pot, Bill, do you agree with my view that, in general, our criminal justice systems ought to try to fix its past BIG mistakes?"

Depends on the cost.

Perhaps the biggest mistake the system makes is its past and ongoing failure in a huge number of cases to bring the criminal to justice. See Point 5 in this eye-opening and depressing Pew Report: https://www.pewresearch.org/short-reads/2020/11/20/facts-about-crime-in-the-u-s/ The amount of unpunished crime in this country is staggering. In hundreds of thousands of cases, the system tells the crime victim: Hey, look, stuff happens. You're on your own.

What should be done about that, and at what cost? Those are key questions. One thing we could do to reduce crime is hire vastly more police -- have a cop on every corner, 24/7 -- and jack up stop-and-frisk. But those things would have big costs, in money and in fraying the feeling that we live in a free and open country. That's the basic reason we don't do them, and instead live with a lot of crime.

Another big mistake the system makes is acquitting factually guilty people, who then go out and do it again (or worse). We make this mistake mainly for two reasons: First, we have a very high standard for conviction; and second, the DJC prevents do-overs of erroneous acquittals. If we changed those things, we could correct or prevent such acquittals. But we don't. The reason we don't is that the cost would be too high in having to give up things our constitutional free heritage cherishes.

My personal preference is to keep things mostly the way they are, even with their costs in large amounts of preventable crime, so that we can keep our constitutional protections. Reasonable minds might reach different conclusions, yes. The best debates are at the margin.

Same deal with where you're headed with this. Finality can sometimes exact an unfair cost, yup. But poking the holes you want in finality will in my view exact a higher cost, so I oppose it and support the Jones majority. In addition, the defendant has a fail-safe (unlike erroneous acquittals, for example). The defendant can seek executive clemency. The crime victim where the assaulter has obtained an erroneous acquittal (or is never even caught or charged) has no such option.

Nor am I going to fall for the line that, "Well, we could just do this one little fix." The problem is it is NEVER EVER EVER just this one little fix. There is no end to the defense bar's appetite to shift the system to benefit their clients. They don't want this one little chunk taken out of finality. They want to abolish finality, and they know this is just the start. Unfortunately for them, my people and I know it too.

Posted by: Bill Otis | Jun 24, 2023 5:17:59 PM

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