How many legally innocent federal prisoners are stymied by Jones and do they have other pathways to relief?
I rounded up in this post a few days ago some of the (mostly critical) commentary on the Supreme Court’s important new ruling regarding federal collateral review in Jones v. Hendrix (basics here). But I have yet to see anyone try to develop any accounting of (1) how many legally innocent federal prisoners might be adversely impacted by Jones, and/or (2) what other means might exist for legally innocent federal prisoners blocked by Jones to seek relief. Before getting to these issues, this SCOTUSblog post by Noah Biale, titled “Court blocks pathway for federal prisoners to raise legal innocence claims,” provides a primer:
On Thursday, the Supreme Court held that a federal prisoner cannot raise a claim of legal innocence if he has already challenged his conviction — even if that claim was unavailable at the time he filed his challenge. The court’s decision in Jones v. Hendrix turns on the interpretation of the federal habeas statute, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996. It is the latest in a string of cases construing AEDPA in which the court has held, as Justice Clarence Thomas put it in his majority opinion, that “Congress has chosen finality over error correction.”
1. How many legally innocent federal prisoners are there? There are just shy of 160,000 federal prisoners according to BOP’s latest accounting, and the vast majority likely do not have reasonable claims of legal innocence AND/OR still have on-going direct appeals or available 2255 collateral remedies. But the Supreme Court has significantly restricted the reach of many fraud and gun and drug statutes recently — think, eg, Rehaif, Wooden, Ruan, Dubin, Borden, just to name a few off the top of my head — so I suspect there a still a significant number of legally innocent federal prisoners getting shut out of a key pathway to court by the ruling in Jones. Even if, say, only about 0.2% percent of federal prisoners are legally innocent and have already filled a 2255 petition, that still means Jones may leave many hundreds of legally innocent federal prisoners stuck serving erroneous prison terms because the Jones majority decided that “Congress has chosen finality over error correction.”
2. What other pathways to relief might be available to legally innocent federal prisoners? I can think of two alternative pathways that might now be pursued by legally innocent federal prisoners to seek relief from erroneous prison terms, but one seems mostly theoretical and the other is a different kind of up-hill battle:
(a) Original habeas petitions to SCOTUS. Back in 1996, in the first challenge to the habeas restrictions created by AEPDA, the Supreme Court in Felker v. Turpin stressed its “authority to entertain original habeas petitions.” In the wake of Jones, legally innocent federal prisoners unable to file collateral appeals at the district court level seemingly could, and arguable should, file original habeas petitions directly in the Supreme Court. But, given that it has been nearly 30 years since Felker and no original petitions have been granted by SCOTUS, I consider this pathway to be more theoretical than practical.
(b) Sentence reduction motions under 3582(c)(1)(A). The FIRST STEP Act authorized defendants to directly seek from courts reductions in an imprisonment term upon a showing of “extraordinary and compelling reasons.” I certainly consider legal innocence to be an “extraordinary and compelling reason” for a reduction, so I would hope that legally innocent federal prisoners could prevail on what are often called “compassionate relief” motions. I fear that, after Jones, some courts might (wrongfully) believe that legal innocence is not a proper basis for granting compassionate relief; I believe the statutory text and equitable considerations at issue in 3582(c)(1)(A) motions support make this pathway to relief for legally innocent federal prisoners quite sound.
I am eager to hear from readers about how best to do an accounting of legally innocent federal prisoners and about what other pathways to relief might be viable for legally innocent federal prisoners — eg, might DOJ be able to seek to vacate problematic counts despite Jones? might there be viable constitutional claims to get into court in other ways? I sincerely hope that Jones ends up not adversely impacting too many legally innocent prisoners and that these prisoners find another path to relief from legally erroneous convictions and sentences.
Prior related posts: