A dissent to a controversial new Supreme Court decision cites work by Michigan Law Professors Leah Litman, ’10, and Eve Brensike Primus, ’01.

In Jones v. Hendrix, the Court held that a federal prisoner who has already challenged their conviction may not raise a new claim of innocence, even if that new claim was not previously available under the law. The case turned on the interpretation of the federal habeas statute.

The Court split 6-3 along ideological lines, with Justice Clarence Thomas writing for the majority that “Congress has chosen finality over error correction.” Critics have said the decision will lead to innocent people remaining incarcerated, and justices issued two dissents. One, authored by Justice Ketanji Brown Jackson, cited both Litman and Primus.

Professors Leah Litman, ’10
Professor Leah Litman, ’10

Litman, a professor of law, teaches and writes on constitutional law, federal courts, and federal sentencing. Her research examines unidentified and implicit values that are used to structure the legal system, the federal courts, and the legal profession. Litman co-founded, with Michigan Law Assistant Professor Emily Prifogle, Women Also Know Law—a media platform designed to promote the work of women and nonbinary academics. Since 2019, she also has been the co-host of Strict Scrutiny, a weekly Crooked Media podcast about the United States Supreme Court and the legal culture that surrounds it.

Primus, the Yale Kamisar Collegiate Professor of Law, teaches Criminal Law, Criminal Procedure, Evidence, and Habeas Corpus, and writes about structural reform in the criminal justice system. Her scholarship has been previously cited by the Court. Primus has participated in the lawmaking process, giving legislative testimony and helping to draft proposed legislation on criminal justice issues. A former public defender in Maryland, Primus also is the founder and director of the Law School's MDefenders organization—a group designed to educate and support aspiring public defenders.

1. Professor Litman, how did Justice Jackson use the findings of your paper “Legal Innocence and Federal Habeas”?

That paper is about how the law has long treated claims of “legal innocence” differently and with special solicitude, and for good reason. Justice Jackson used the paper to support that idea and to establish that that was part of the background legal rules against which Congress drafted the statute.

2. Professor Primus, how did Justice Jackson use the findings of your paper “Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions”?

Eve Brensike Primus, ’01
Professor Eve Brensike Primus, ’01

My article argued that the Supreme Court has long recognized equitable exceptions to its restrictions on the availability of federal habeas corpus review of criminal convictions. These “equitable gateways” focus on (a) protecting innocent people from unjust imprisonment and (b) ensuring that prisoners have at least one full and fair opportunity to have their federal claims heard in federal court. Justice Jackson cited the article in support of her argument that the majority’s cramped interpretation of the federal habeas statutes to preclude prisoners like Jones from being able to raise their legal innocence claims—claims that they had never had a full and fair opportunity to present even once to a federal court—was at odds with background principles that have always informed the scope of federal habeas review.

3. What do each of you see as the biggest implications of this ruling?

Litman: It means that there will be people in prison for things that are not crimes, and people in prison for much longer than the law says they should be. Justice Jackson summed it up when she said “legally innocent or not, [people like the habeas petitioner in the case] must just carry on in prison, regardless.” Or, in the words of the joint dissent by Justices Sotomayor and Kagan, “A prisoner who is actually innocent, imprisoned for conduct that Congress did not criminalize, is forever barred…from raising that claim, merely because he previously sought postconviction relief. It does not matter that an intervening decision of this Court confirms his innocence.” 

Primus: This decision will result in the unjustified imprisonment of innocent people.  Every time the Supreme Court substantively narrows lower federal courts’ interpretation of a federal criminal statute—effectively telling the lower courts that Congress never intended to criminalize a category of behavior—there will be countless individuals in federal prison who will be wrongly serving a sentence for noncriminal conduct because of the lower courts’ prior erroneous interpretation of the statute. But many of these wrongly condemned people will have no ability to petition a court to be released after this decision, simply because they happened to have already challenged their conviction on other grounds in a prior federal habeas petition. 

4. What do each of you see as the biggest thing the Court got wrong in this ruling?

Primus: The Court improperly drew a negative inference from the habeas statutes’ silence in a way that was at odds with the intent of Congress at the time the statutes were enacted, in conflict with the background principles that animate federal habeas review of criminal convictions, inconsistent with its own clear-statement rule (which requires a clear congressional statement before the Court should prevent prisoners from having access to the Great Writ), and raises serious constitutional questions about the continued imprisonment of actually innocent people. They really just got it wrong at every turn. And this is not an aberrational decision. As Justice Jackson said in her dissent, this is part of a concerted effort by the justices in the majority to cut off federal habeas review for individuals who have been convicted of crimes—regardless of whether they are innocent and regardless of whether their constitutional rights were trampled to obtain those convictions.  

Litman: It’s hard to pick just one. But I’d say the overall framework that the Court used to decide the case. The majority drew a negative inference from the statute’s silence, reasoning that because Congress did not specifically authorize incarcerated persons to file habeas petitions asserting their statutory innocence, Congress had not authorized them to do so. But as Justice Jackson explained in her dissent, that gets things backwards—we should expect Congress to speak clearly and explicitly if it intends to demand that legally innocent people stay in prison, in light of the myriad constitutional concerns she identifies with denying them a judicial remedy.

5. Were you surprised by this ruling? Why/why not?

Primus: No. I fully expected this when they granted certiorari. This Supreme Court majority has made it quite clear that they want to limit the scope of federal habeas review—particularly for those who have already been convicted of a criminal offense. 

Litman: No, not at all; in a piece in the Michigan Law Review Online, I warned that it would probably happen when President Trump won the election in 2016 and appointed Justice Gorsuch to the Supreme Court; as a judge on the US Court of Appeals for the Tenth Circuit, Justice Gorsuch had really pioneered the view that federal law did not allow a legally innocent person to file a habeas petition challenging their conviction or sentence.