ArtIII.S1.7.3.2 Retroactivity of Criminal Decisions

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Supreme Court’s retroactivity jurisprudence distinguishes between criminal and civil cases.1 On the criminal side, there may be further distinctions based on whether a criminal defendant has allegedly engaged in criminal conduct but has not yet been tried, has been convicted at trial and is pursuing a direct appeal, or has exhausted all direct appeals but can still seek collateral relief via a petition for a writ of habeas corpus. The general rule prior to 1965 was that the Court’s constitutional decisions involving criminal law applied retroactively, subject to limited exceptions.2 The Court changed its approach in the 1965 case Linkletter v. Walker, in which it held that, with respect to new constitutional interpretations involving criminal rights, “the Constitution neither prohibits nor requires retrospective effect.” 3

In Linkletter and a case from the following year, the Court held that its decisions applied retroactively to all cases in which judgments of conviction were not yet final.4 Later, however, the Court adopted a balancing process that resulted in different degrees of retroactivity in different cases.5 Generally, in cases where the Court declared a rule that was “a clear break with the past,” it denied retroactivity to all defendants, sometimes with the exception of the challenger before the Court.6 By contrast, in certain cases where a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial7 or cases where the Court found that a constitutional doctrine barred the conviction or punishment of someone,8 the Court granted its decisions full retroactivity, even for habeas claimants.

The Court’s retroactivity jurisprudence later distinguished between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, the Court held, “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.” 9 A plurality of the Court first endorsed a new standard for collateral review in Teague v. Lane,10 and a majority of the Court adopted it in Penry v. Lynaugh.11 In contrast to cases on direct appeal, for collateral review in federal courts of state court criminal convictions, the Court held that it generally will not give retroactive effect to “new rules” of constitutional interpretation—that is, rules “not 'dictated by precedent existing at the time the defendant’s conviction became final.’” 12 The Court held that a new rule may apply retroactively in a collateral proceeding “only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” 13 As the Teague plurality explained, the Court will apply a new rule in a collateral proceeding only if it places certain kinds of conduct “beyond the power of the criminal law-making authority to prescribe” or constitutes a “new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.” 14

Since Teague, the Court has consistently held that new substantive constitutional rules apply retroactively. The Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits “a certain category of punishment for a class of defendants because of their status or offense.” 15 Thus, the Court has held that the first Teague exception is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making “the resulting conviction or sentence . . . by definition . . . unlawful.” 16 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, holding that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.17

In contrast, the Court has never invoked the second Teague exception for “watershed” procedural rules to hold that a new rule of criminal procedure must apply retroactively. The Court has explained that procedural rules simply regulate the manner of determining the defendant’s guilt, so if a defendant does not receive the benefit of a new procedural rule, the underlying conviction or sentence may “still be accurate” and the “defendant’s continued confinement may still be lawful” under the Constitution.18 The court has explained that, under the second Teague exception, it is not enough “to say that a new rule is aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” 19 In the 2021 case Edwards v. Vannoy, the Court noted that the Teague Court itself had stated it was “unlikely” that new watershed rules would emerge and, “in the 32 years since Teague, . . . the Court has never found that any new procedural rule actually satisfies that purported exception.” 20 The Court thus concluded, “New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.” 21

For discussion of civil cases, see ArtIII.S1.7.3.3 Retroactivity of Civil Decisions. back
Robinson v. Neil, 409 U.S. 505, 507 (1973). back
381 U.S. 618, 629 (1965). back
Linkletter, 381 U.S. 618; Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). back
Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972). back
Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549–50, 551–52 (1982). back
Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977). back
United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973). back
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)). back
489 U.S. 288 (1989). back
492 U.S. 302 (1989). back
Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” and if it was not “an illogical or even a grudging application” of the prior decision. Butler v. McKellar, 494 U.S. 407, 412–415 (1990). 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). back
Whorton v. Bockting, 549 U.S. 406, 416 (2007). back
489 U.S. at 307, 311–313; see also Butler, 494 U.S. at 415–416. back
Welch v. United States, 578 U.S. 120, 132 (2016) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990); see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989). back
Montgomery v. Louisiana, 577 U.S. 190 (2016) back
577 U.S. 190. back
Id. at 201. back
Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations and citations omitted). back
141 S.Ct. 1547, 1557, 1555 (2021). See also id. at 1557 ( “The Court has identified only one pre-Teague procedural rule as watershed: the right to counsel recognized in the Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335, 344–345 (1963).” ). back
Id. at 1560. back