A new substack article is entitled: "Imprisoning innocent people is bad Section 2255 should be fixed immediately."
The author isn't wrong.
A recent U.S. Supreme Court ruling holding 6-3 that actually innocent people who had no meaningful ability to litigate their innocence because it results from a new, retroactively effective, interpretation of the law, have to rot in prison anyway, arises in the first place because Congress wrote a flawed law restricting habeas corpus attacks on convictions that could be amended by a simple statute.
The fact that the U.S. Sentencing Guidelines allow federal judges sentencing people for crimes to consider conduct which juries acquitted defendants could similarly be solved with legislation from Congress.
Congress has the power to overturn the court created doctrine of qualified immunity for law enforcement officers who violate people's civil rights, and could similarly reform other non-obvious interpretations of 42 U.S.C. § 1983 that also unjustifiably put the interests of bad cops above the interests of people who have their civic rights violated.
Similarly, Congress could codify Bivens actions which are a more limited court created right to sue federal officials for violating your constitutional rights.
Congress could easily pass a law ending the spectacle unique to the U.S., of forcing young children who can't even speak English and sometimes can't even read or write to represent themselves in deportation hearings that we otherwise require people to have a law degree and pass the bar exam to participate in for someone else. So far, in part due to Congressionally created barriers to Article III court review of the executive branch immigration courts, the courts have failed to address this travesty.
Congress could pass a law amending the Affordable Care Act, so that a misinterpretation of that statute that allows states to deny expanded Medicaid coverage at no cost to state coffers, to clarify that this isn't permitted.
Congress could amend the Federal Arbitration Act to forbid the extreme interpretations of the law that have turned arbitration into an unconscionably lawless forum for resolving disputes that is demonstrably biased against consumers, investors, and employees.
Congress could amend ERISA to tame the absurd lengths to which the Act's pre-emption effect produces unjust and unanticipated results.
Congress could amend the definition of "navigable waters" which courts have recently construed to end federal protections for a great many wetlands, and could expressly expand the authority of the EPA to take measures to prevent global warming, that the U.S. Supreme Court has rolled back.
Congress could rewrite the rules for granting national injunctions and the rules that allow litigants in Texas to basically choose which judges will hear their cases.
Congress could pass laws on the interstate sale of abortion inducing drugs so that U.S. law on the subject wouldn't be forced to hinge on who judges interprets a 19th century statute.
Not all bad court decisions can be overcome by rewriting laws that the courts have misinterpreted. But the interpretation of federal statutes still makes up the largest share of the docket of the U.S. Courts of Appeals and the U.S. Supreme Court, so statutory reforms could make a huge difference.
Why doesn't this happen?
It doesn't happen because it has grown so difficult to pass laws on any issue upon which there is potential partisan disagreement that doesn't involve government spending or appointing Presidential nominees to top federal jobs. It takes the convergence a majority in the U.S. House, supermajorities in the U.S. Senate (which still have the filibuster and other minority privileges for most kinds of legislation), and Presidential support to pass a federal law.
If a single political party doesn't have both trifecta control of the House, Senate and Presidency, and significantly more than a bare majority in the Senate to either overcome the filibuster or overcome a handful of dissenters in one's own party, signifiant legislation is impossible. And, those conditions have been few, far between, and underutilized by the party in power when they were present. Hostile courts can further complicate the task.
Passing ordinary legislation that is then upheld as constitutional is harder in the United States than in almost every other country in the entire world. In most parliamentary systems, the head of government always has majority support in the lower house of parliament (when it is not unicameral) and an upper house of parliament, if there is one, serves primarily a delaying function, which makes it much easier for the ruling party or ruling coalition to pass ordinary legislation.
It also doesn't help that very few countries have the extreme flaws in its democracy that the U.S. does associated with the Electoral College, unequal representation of voters in the U.S. Senate, routinely necessary supermajorities to pass ordinary legislation due to the filibuster and other quirky Senate rules, disenfranchisement of the residents of the District of Columbia and Puerto Rico which each have more people than some U.S. states, single district plurality voting's spoiler effects, pervasive gerrymandering, elections administered by partisan elected officials, political parties who have no say over who their own candidates will be, and dismal voter turnout by international standards.
For example, Turkey, in areas ruined by earthquakes just a few months earlier, has better voters turnout than the best performing U.S. states, and has virtually no gerrymandering due to its proportional representation system, and is also not troubled by spoilers due to its direct Presidential elections based upon the popular vote with a requirement that the plurality winner secure a majority to be elected without a runoff election.
When correcting even obviously flawed court interpretations of legislation (or just plain old obviously flawed legislation) by passing new laws becomes too difficult, the courts, which adjudicate the status quo until new laws are passed, become excessively powerful at the expensive of Congress and the Presidency.
If the barriers to passing ordinary legislation were less daunting, the partisan tilt of the federal courts right up to the U.S. Supreme Court, would matter far less. Bad court decisions would be overturned swiftly with corrective legislation, and in response, courts would avoid making decisions that interpret legislation in inappropriately wooden and unjust ways in the first place.
Of course, the problem can't be entirely laid at the feet of the institutional design. A variety of reforms of the legislative and electoral process could solve those design problems if there wasn't another deeper problem.
The deeper problem is that the United States is deeply divided politically, because it is deeply divided culturally. There are few times in recent U.S. history when there has been fewer issues upon which there is a broad bipartisan consensus, and there have been fewer moderates to bridge divided between the two major parties.
You would think that there ought to be a consensus that people whom we know have not committed a crime shouldn't continue to rot in prison for decades to come.
You would think that there ought to be a consensus that five year olds who don't speak English shouldn't have to represent themselves in deportation hearings.
You would think that there would be a consensus that federal government officials shouldn't be able to intentionally violate any of your well-established constitutional rights with impunity.
You would think that there would be consensus that someone shouldn't have to spend an additional decade in prison because a judge thinks by a preponderance of the evidence that someone committed a crime that a jury acquitted that defendant of committing.
But there isn't the kind of broad bipartisan consensus needed to pass laws reforming these seemingly "no brainer" statutory reforms. The Republican party (and even a handful of conservative Democrats or members of Congress who caucus with Democrats in Congress) is collectively, overwhelming opposed to passing any of these reforms.
It is hard to say why this political party is opposed to these kinds of measures.
But basically, the Republican party has become a neofascist, far-right movement. Its base of working class, less educated, older, Evangelical Christian whites, especially white men, feels incredibly aggrieved. They don't care about reality or governing well. They are ready to resort to violent threats and tactics, and to metaphorically burn down the entire government, in order to postpone or reverse the political and demographic trends that are on track to permanently relegate them to becoming an irrelevant political fringe group. So, as a result, they have no qualms about blocking even common sense reforms. They want to provoke a crisis in the hope that in that kind of crisis environment they will have a better chance of holding onto their political clout and privileged status than they will if the system works the way it would if everyone were making policy in good faith.
How did they get this way?
One big problem has been growing economic inequality.
Working class wages have been almost stagnant for almost fifty years, and working class unemployment rates have stayed mostly high, while incomes for college educated people have soared and college educated people have experienced sustained, very low unemployment rates. Mostly, working class white men haven't actually seen their inflation adjusted incomes actually fall, but they have stayed stagnant, while black Americans, Hispanics, and women have all seem much greater progress over the last fifty years from a previously dismally low state. As jobs opportunities for women have grown dramatically in the last fifty years, and their own economic prospects have stagnated, their ability to form stable families has collapsed.
Rather than being providers for their families, they have become economic dead weight dragging down their female partners and children. Their economic failures create situations where their children are subjected to abuse and neglect driven by economic struggles, until the state intervenes and breaks up their families.
Some of them are also dimly aware that the stability of marriages for their college educated couple peers has actually improved at the same time. They blame the immorality that those college educated people have imposed upon them, even though declining morality and acceptance of gay rights has nothing to do with their plight and is just a scapegoat.
The real problem is that low skilled jobs have moved off shore where labor is cheaper for better quality workers, or have vanished entirely as technology has replaced lots of low skilled workers who aren't very productive with far fewer medium and high skilled workers who are vastly more productive.
Our society no longer needs nearly as many men with little education but hands on abilities to do physical labor as it did in the 1950s and 1960s when the rest of the world was still recovering from World War II, millions of men had died in the war, technology had not yet revolutionized the means of production, the baby boom was keeping women out of the work force, and mass unskilled immigration hadn't yet begun.
Cultural norms that they used to take for granted in a predominantly Christian, predominantly white, less educated era where LGBTQ people were forced into the closet, and male dominance in the family and workplace were taken for granted have collapsed. Psychologically, this makes them feel like outsiders and strangers in their own land.
Their economic malaise for their social class has produced deaths of despair and made conspiracy theories look attractive, because they can't make sense of their world.
They have embraced religion just as secular beliefs are dramatically on the rise nationally, because religion thrives when it protects threatened cultures and can insulate them from a changing world where they no longer fit.
They are attracted to political violence and guns, because an ability to threaten to use violence masks the fact that in other domains of life they have become ineffectual and impotent. They are sick and tired of losing, day in and day out, in economic and social interactions to better educated people who've managed to find a place in the thriving upper middle class educated establishment or its coattails. The mastery of information and knowledge that this class possesses, which they who've never liked or been good at schooling or book learning can't attain, leaves them constantly outsmarted and struggling to preserve their increasingly fragile self-confidence and egos. So, rather than try to improve themselves which feels futile, they've turned on knowledge and intelligence and education itself, and have started to view science with suspicion and distrust.
There's a huge generation gap in these kinds of beliefs. Their children are far more liberal and far less conservative Christian than they are. Sustained immigration has diversified the nation ethnically, religiously, and culturally. Their own self-destructive responses to their condition is leading them to die early, a trend most dramatically in evidence in the anti-vax movement during the COVID pandemic. Far fewer people are dropping out of high school and far more people are going to college or at least getting some college even if they don't secure a degree. They are fighting their culture's decline in numbers and relevance, but even they can see the writing on the wall. Most of them recognize, at least subconsciously, that they are fighting an ultimately futile rear guard action in culture wars that their side will eventually lose, but want to keep fighting it at least for the rest of their own lives, the rest of us be damned.
The uptight upper middle class college educated conservative intellectuals who used to provide the policy ideas for the right have been left adrift. They have now fled the movement in favor of either the Democratic big tent, or the no man's land between the small and rowdy Republican tent and the Democrat's tent, while former blue collar union men, whose union jobs are no more, have crossed over to the Republican tent.
The ultra-rich have stuck around, not because they have much in common with their working class fellow party members whom they hold in quiet contempt, and have made lemonade out of lemons by playing and manipulating the grass roots of their party to achieve their own selfish ends that don't benefit their grass roots supporters at all. The ultra-rich are staying with the GOP for the same reason that Muslims and conservative black men stay the course with the Democrats: because the other party is a threat to their very continued existence, even if they have many points of agreement with it. The ultra-rich risk betrayal at the hands of their own increasingly populist party, but so far, most of them see this as the lesser of two evils.
Despite the fact that Democrats hold the Presidency and a razor thin Senate majority, a decades in the making ultra-conservative Supreme Court, a razor thin majority in the House, and trifecta control of many red states, has currently brought conservatives to a high water mark. They've rolled back abortion rights by fifty years in a huge, mostly contiguous swath of the nation. They've ended affirmative action in higher education. They've brought the nation to the bring of a default on the national debt. Their anti-woke movement is making the most concerted move to roust liberal politics from schools, colleges, universities, and businesses since McCarthy's Red Scare. They've expanded access to firearms and in their heartlands, reduced the risk of criminal liability for using them. They've gerrymandered for all they are worth, bent election rules, and made it harder to vote. They've embraced the war on science with open arms. They're starting to nibble at ways to advance white Christian nationalism. They've tried to flip homophobia from illegal behavior in most forums to government mandated behavior. They've further polarized the nation and made a failed coup attempt that only encourages them to try again next time. They've rolled back labor laws to the nineteen teens.
Will this high water mark last?
Probably not. But there's an outside chance that it could, at least in part of the nation, and that's terrifying.
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