Forget what the statute says. Imprisonment for conduct determined to not have been a crime is a violation of due process. This seems obvious. What am I missing?
I fail to see how Jones is "a tough close issue". As you spend the rest of the essay arguing, a prisoner in Jones' situation should have access to a hearing to establish their innocence and secure their freedom. Jones is factually innocent; any statute which purports to bar the courtroom door violates due process. I read Thomas's argument, which makes a statutory case that is not necessarily wrong, but which is irrelevant in the face of the result: manifest injustice.
The government may dispute Jones' knowledge of his status, but they are required to prove that beyond a reasonable doubt.
As you point out, Congress could and should address this easily, but I will also point out that the President has a role to play. This is a case for the broad use of the pardon power to expeditiously correct the invalid conviction of many, many people.
Forget what the statute says. Imprisonment for conduct determined to not have been a crime is a violation of due process. This seems obvious. What am I missing?
I fail to see how Jones is "a tough close issue". As you spend the rest of the essay arguing, a prisoner in Jones' situation should have access to a hearing to establish their innocence and secure their freedom. Jones is factually innocent; any statute which purports to bar the courtroom door violates due process. I read Thomas's argument, which makes a statutory case that is not necessarily wrong, but which is irrelevant in the face of the result: manifest injustice.
The government may dispute Jones' knowledge of his status, but they are required to prove that beyond a reasonable doubt.
As you point out, Congress could and should address this easily, but I will also point out that the President has a role to play. This is a case for the broad use of the pardon power to expeditiously correct the invalid conviction of many, many people.