Academic journal article Harvard Law Review

Rethinking Retroactivity

Academic journal article Harvard Law Review

Rethinking Retroactivity

Article excerpt

I.INTRODUCTION

Under the stringent test set forth in Teague v. Lane, (1) defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final. (2) The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty" (3) for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new," (4) Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted" (5) and "alter[s] our understanding of the bedrock procedural elements that ... vitiate the fairness of a particular conviction."

Although the contemporary Court has promulgated a series of constitutional rules of criminal procedure said to represent a "sea change" from prior jurisprudence, it has simultaneously concluded that no new rule meets the terms of this exception. Indeed, although Justices have variously described recent rules as "deeply ingrained in ... the Anglo-American system of jurisprudence," (8) a "prerequisite to reliability," and "constitutional[ly] imperative," (9) no rule of criminal procedure has yet survived the modern test for retroactive application in a collateral proceeding. Scholars have lamented the narrowness of the Teague exception, arguing that "the Court's refusal to relax Teague's strictures" has produced "disturbing" consequences. Indeed, the Teague plurality itself acknowledged that the emergence of new rules that would satisfy the criteria for retroactivity was "unlikely."

This Note takes up Justice Harlan's admonition that "[r]etroactivity must be rethought." (14) In Part II, the Note begins by tracing the jurisprudential font of Teague's test for retroactivity--the reasoning of Justice Harlan's opinions in Desist v. United States (15) and Mackey v. United States, (16) which the Teague Court explicitly adopted in articulating the test for retroactive application of procedural rules. (17) The Note argues that Justice Harlan's concerns in Mackey did not include the normative considerations that properly govern the retroactive application of new rules on collateral review. Because Mackey's concern with what is "fundamental" (18) is as analytically unavailing in the habeas context as it was during the incorporation debate, the Note argues that the Court should avoid reliance on Mackey's analysis and instead focus on Justice Harlan's emphasis in Desist on constitutional rules of criminal procedure that substantially enhance the accuracy of judgments of conviction.

Because Justice O'Connor's opinion in Teague anticipated the problematic indeterminacy of Mackey's analysis, (19) the Note argues that Teague should be understood to require far more emphasis on Desist's test: whether an accuracy-enhancing procedural rule is among those "without which the likelihood of an accurate conviction is seriously diminished." (20) The Note examines the Court's decisions after Teague and concludes that it is the extent to which a rule improves accuracy, and not amorphous concerns with respect to what is "fundamental," that has motivated the Court's refusal to apply new rules retroactively on collateral review. Because no rule addressed by the Court has unambiguously improved the likelihood that a conviction is accurate, the Note argues, the Court since Teague has appropriately refused to apply any new rule of criminal procedure retroactively.

In Part III, the Note turns to Apprendi v. New Jersey, (21) which held that the Sixth Amendment requires that "any fact (other than prior conviction) that increases the maximum penalty for a crime" be proved both to a jury and beyond a reasonable doubt. …

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