CRS Annotated Constitution
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Retroactivity Versus Prospectivity.—One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.487 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case.488 Yet, occasionally, the[p.684]Court did not apply its holding to the parties before it,489 and in a series of cases beginning in the mid–1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively490—constitutional–criminal law decisions. The results have been confusing and unpredictable.491
Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.”492 Statutory and judge–made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old.493 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions.
When in the 1960s the Court began its expansion of the Bill of Rights and applied the rulings to the States, a necessity arose to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,494 but the Court then promulgated standards for a balancing process that resulted in different degrees of retroactivity in dif[p.685]ferent cases.495 Generally, in cases in which the Court declared a rule which was “a clear break with the past,” it denied retroactivity to all defendants, with the sometime exception of the appellant himself.496 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth–finding function of a criminal trial497 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,498 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law–changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit.499
The Court has now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”500 Justice Harlan’s habeas approach was then adopted by a plurality in Teague v. Lane501 and then by the Court in Penry v. Lynaugh.502 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that “new rules” of constitutional interpretation, those that break new ground or impose a new obligation on the States or the Federal Government, announced after a defendant’s conviction has become final will not be applied. For such habeas cases, a “new rule” is defined very broadly to include interpretations that are a logical outgrowth or application of an earlier rule unless the result was “dic[p.686]tated” by that precedent.503 The only exceptions are for decisions placing certain conduct or defendants beyond the reach of the criminal law, and for decisions recognizing a fundamental procedural right “without which the likelihood of an accurate conviction is seriously diminished.”504
What the rule is to be, and indeed if there is to be a rule, in civil cases has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.505 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when States are required to refund taxes collected under a statute that is subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided.506 The question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting[p.687]company and once a new rule has been applied retroactively to the litigants in a civil case considerations of equality and stare decisis compel application to all.507 While partial or selective prospectivity is thus ruled out, neither pure retroactivity or pure prospectivity is either required or forbidden.
Four Justices adhered to the principle that new law, new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.508 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies.509 Future cases must, therefore, be awaited for resolution of this issue.
Supplement: [P. 687, add to text following n.509:]
Apparently, the Court now has resolved this dispute, although the principal decision is a close 5 to 4 result. In Harper v. Virginia Dep’t of Taxation,26 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” 27 Four Justices continued to adhere to Chevron Oil, however,28 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.29
Supplement: [P. 686, add to n.503:]
For additional elaboration on “new law,” see O’Dell v. Netherland, 521 U.S. 151 (1997) ; Lambrix v. Singletary, 520 U.S. 518 (1997) ; Gray v. Netherland, 518 U.S. 152 (1996) . But compare Bousley v. Brooks, 523 U.S. 614 (1998) .
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