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Article Excerpt
Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rides of criminal procedure in federal habeas review of state court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.
In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity. Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act. My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling. Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well "for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts.
INTRODUCTION PROLOGUE: POSTCONVICTION PROCEDURES AS THEY EXIST TODAY I. HISTORY OF THE SUPREME COURT'S CRIMINAL RETROACTIVITY JURISPRUDENCE BEFORE DANFORTH A. Brown v. Allen and the Expansion of Federal Habeas Review B. The Birth of Nonretroactivity: Linkletter v. Walker and Professor Mishkin's Critique C. Expansion of the Linkletter Nonretroactivity Doctrine D. Justice Harlan' s Criticism of the Stovall-Linkletter Doctrine E. Overthrow of the Linkletter-Stovall Regime: Griffith v. Kentucky and Teague v. Lane F. Criticism of Teague II. THE DANFORTH DECISION: TEAGUE DOES NOT BIND THE STATE COURTS A. The Key Notes Struck by the Majority Opinion B. The Key Notes Struck by the Dissent C. Important Questions Left Open by Danforth III. THE FUTURE OF RETROACTIVITY IN STATE POSTCONVICTION PROCEEDINGS A. The Court's Return to Blackstone B. Prospectivity and the Problem of Equality. C. The Nature of Judicial Review D. A Voice for State Courts in the Development of Federal Constitutional Criminal Procedure E. Retroactive Application of New Rules in Postconviction Proceedings Ensures Uniformity F. Finality, the Only Teague Concern that Remains 1. The Value of "Finality" in State Postconviction Proceedings 2. Benefits of Retroactivity on Collateral Review Outweigh Finality Concerns 3. Addressing Finality Through Procedureal Mechanisms Other than Nonretroactivity G. Problems in Administration Avoided by the Return to Retroactivity IV. THE FUTURE OF RETROACTIVITY IN FEDERAL POSTCONVICTION PROCEEDINGS V. THE FUTURE OF RETROACTIVITY IN FEDERAL HABEAS CORPUS REVIEW OF STATE-COURT JUDGMENTS CONCLUSION
INTRODUCTION
Beginning in 1965, the Supreme Court's decisions on the retroactive application of new constitutional rules of criminal procedure have presented a "confused and confusing" (1) jurisprudence. The Court's recent decision in Danforth v. Minnesota, (2) however, represents a significant and promising break with the past. Danforth makes clear the Court's retroactivity rules are binding only on federal courts considering state prisoners' habeas corpus petitions. State postconviction courts are explicitly declared free to disregard the Court's jurisprudence. Further, Danforth leaves open the possibility that federal courts considering the postconviction claims of federal prisoners may be similarly unbound. (3)
After providing a brief overview of the processes of postconviction review, this Article examines the Danforth decision and its antecedents, (4) and proposes that among the numerous possible retroactivity rules lower courts may adopt after Danforth, a rule of retroactivity should be preferred. There are several reasons why lower courts--both state (5) and federal (6)--should adopt a rule of retroactive application of new constitutional rules of criminal procedure in postconviction cases.
First, a rule of general retroactivity avoids the unfairness inevitably attendant to non-retroactive application of judicial decisions, ensuring that similarly situated litigants are treated equally. Second, a rule of general retroactivity will allow the lower courts--state and federal to continue to participate in important doctrinal development. The development of constitutional criminal doctrine has historically depended on lower courts' ability to expound on the meaning of constitutional provisions, but has been hindered by the Court's retroactivity jurisprudence and legislation limiting federal habeas review of state court judgments. A rule of retroactivity will preserve a role for the lower courts in doctrinal development. Third, a general rule of retroactivity promotes unifomaity in the application of constitutional rules of criminal procedure, whereas adoption of retroactivity rules that look to the nature of the constitutional rule at issue (as the Supreme Court's retroactivity rules have) will lead to disuniformity that threatens the supremacy of federal law.
In reaching these conclusions, I take into account the nature and function of state and federal postconviction proceedings, and particularly the ways in which they differ from the nature and function of federal habeas review of state court judgments. I also consider whether interests in the finality of criminal convictions outweigh the benefits to be served by a retroactivity regime, and conclude they do not.
After evaluating the impact of Danforth on the lower courts in postconviction proceedings both state and federal, I turn to a brief examination of how Danforth may portend change for the future of the Court's retroactivity doctrine in federal habeas corpus proceedings reviewing state court judgments. (7) I conclude that Danforth offers great hope for a return to a more constructive model of state-federal court "dialogue" on constitutional rules, replacing the paternalistic model of habeas review which held the threat of habeas relief as a punishment to be delivered to state courts who failed to "toe the constitutional line" set by the federal courts. Additionally, it appears the lower federal courts may, on the logic of the Danforth decision, move away from use of the retroactivity inquiry as a threshold question, which will allow lower federal courts to reintroduce themselves to the constitutional dialogue in federal habeas proceedings.
PROLOGUE: POSTCONVICTION PROCEDURES AS THEY EXIST
To better understand the issues surrounding retroactivity in state and federal postconviction proceedings, it is critical to keep in mind the structure and functions of those proceedings as they exist today.
The typical lifespan of a criminal case originating in state court can be divided into eleven stages: (1) trial; (2) direct appeal as of right, (8) usually to an intermediate-level appellate court (9); (3) discretionary appeal within the state court system, usually to the state's highest court; (4) petition for writ of certiorari in the United States Supreme Court; (5) petition for postconviction review (sometimes called "state habeas corpus" (10)), usually entertained by a trial-level state court; (6) direct appeal from the denial of postconviction relief, often as a matter of right, and usually to an intermediate-level appellate court (11); (7) discretionary appeal within the state court system, usually to the state's highest court; (8) petition for writ of certiorari in the United States Supreme Court (12); (9) petition for writ of habeas corpus pursuant to 28 U.S.C. [section] 2254 ("federal habeas corpus"), in United States District Court; (10) appeal to the United States Court of Appeals; (13) and (11) petition for writ of certiorari in the United States Supreme Court.
The first four stages of a state criminal case's typical lifespan are the "direct review track," the next four are the "state postconviction track," and the final three stages are the "federal habeas corpus track." All of this is depicted in Figure 1.
By contrast, the typical lifespan of a criminal case originating in federal court only consists of six stages: (1) trial; (2) direct appeal to the United States Court of Appeals; (3) certiorari review by the United States Supreme Court; (4) a motion to set aside, vacate, or correct sentence pursuant to 28 U.S.C. [section] 2255, in the United States District Court; (14) (5) direct appeal to the United States Court of Appeals; (15) and (6) certiorari review by the United States Supreme Court. The first three stages are the "direct review track," and the last three are the "federal postconviction track," as depicted in Figure 2.
In practice, significant deviations from the typical can occur, in the form of interlocutory appeals, ancillary litigation in the form of writs of prohibition or mandamus, petitions for rehearing, successive postconviction petitions, successive federal habeas corpus petitions, and the like. Yet, for purposes of a general discussion about how the state and federal postconviction review processes function, and how they ought to function, these typical lifespans will suffice.
The critical difference between state and federal criminal cases lies in the existence of extra tiers of review of state cases. As can be seen from Figure 1, state criminal cases are subject to federal court review in two ways--through certiorari to the United States Supreme Court from state court judgments, (16) and through federal habeas corpus review. This inter-system review, of course, is occasioned by the federal system and the supremacy of federal law. Federal criminal cases are never subjected to inter-system review.
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I. HISTORY OF THE SUPREME COURT'S CRIMINAL RETROACTIVITY JURISPRUDENCE BEFORE DANFORTH
A. Brown v. Allen and the Expansion of Federal Habeas Review
Inter-system review is a driving force behind the jurisprudence and literature on retroactivity. Indeed, the history of the Court's criminal retroactivity jurisprudence (17) actually begins with a case that did not address retroactivity at all, but was instead concerned with the scope of inter-system review in criminal cases. I am referring to the Court's decision in Brown v. Allen. (18)
Prior to Brown, the processes of inter-system review depicted in Figure 1 above were not fully effectuated. Originally, federal habeas review of state court judgments was technically limited to cases in which the state court lacked "jurisdiction." (19) In the first half of the twentieth century, this concept yielded considerably to the notion that habeas corpus was available to correct deprivations of due process of law. (20) Where state courts provided adequate "corrective process," relitigation of issues on habeas corpus was not permitted. (21)
In Brown, the Court considered two cases wherein the habeas petitioners had fully litigated their federal constitutional claims in the state courts. Instead of adverting to the "corrective process" of those states, however, the Supreme Court plunged headlong into resolution of the merits of the cases. And the Court specifically noted the authority of the federal district courts to conduct evidentiary hearings in such cases, even where the facts had been determined after evidentiary proceedings in the state courts. (22) In short, Brown v. Allen authorized federal courts to engage in complete relitigation of federal claims previously adjudicated in state court criminal proceedings. (23)
This prompted strong criticism from Professor Paul Bator, who in an influential 1963 article (24) strongly questioned the need for such expansive inter-system review through federal habeas corpus. (25) Bator argued the importance of resisting "the impulse ... to make doubly, triply, even ultimately sure that the particular judgment is just, that the facts as found are 'true' and the law applied 'correct.'" (26) A major step in Bator's argument was the rejection of even the possibility of being "sure"--and the replacement of the goal of confidence in a "true" outcome with the goal of confidence in the criminal adjudicatory process, the "set of arrangements and procedures which provide a reasoned and acceptable probability that justice will be done, that the facts found will be 'true' and the law applied 'correct.'" (27) Once the focus on objective truth is replaced by a focus on process, the question to be asked for each procedure under consideration for inclusion in the adjudicatory process is, simply, whether the benefits of the procedure (including its perceived truth-finding ability) outweigh the costs. Seen in these terms, federal habeas corpus could, and Bator argued should, be addressed "not so much to the substantive question whether truth prevailed but to the institutional or functional one, whether the complex of arrangements and processes which previously determined the facts and applied the law validating detention was adequate to the task at hand?" (28)
Turning to the question of federal habeas corpus review, Bator supported his objection to the relitigation on the merits of federal constitutional questions already decided on the merits by state courts in three ways--by positing the "parity" of state and federal judges in ability to adjudicate federal questions; (29) by citing comity concerns; (30) and, most importantly for this Article, by citing "finality" concerns. Finality, urged Bator, is essential for the "conservation of resources ... not only simple economic resources, but all of the intellectual, moral, and political resources involved in the legal system." (31) Among such squandered resources are the "sense of responsibility" among state court judges, (32) the deterrent value of the criminal law, (33) and the rehabilitative value of the criminal law. (34) Bator's discussion of the finality concerns militating against extensive inter-system habeas review has since been canonized in Supreme Court jurisprudence. (35)
The expansion of habeas corpus criticized by Professor Bator (36) did not cease, however. In Fay v. Noia, (37) the Court held that a prisoner who had failed to litigate his federal constitutional claims in the state courts might nonetheless do so on federal habeas review, provided the prisoner did not deliberately bypass the corrective processes of the state courts. (38) Writing for the Court at a later date, Justice Powell described Fay v. Noia as removing "[the] final barrier to broad collateral re-examination of state criminal convictions in federal habeas corpus." (39)
The expansion of the procedures of federal habeas corpus paralleled an expansion in the substantive bases for habeas relief. As Justice Stevens summarized in Danforth:
The serial incorporation of the Amendments in the Bill of Rights during the 1950's and 1960's ... created more opportunity for claims that individuals were being convicted without due process and held in violation of the Constitution. Nevertheless, until 1965 the Court continued to construe every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas. (40)
These two historical developments--the expansion of habeas corpus, and the wholesale incorporation of the Bill of Rights against the states--set the stage for the Court to make a "serious mistake," (41) one which would set the Court on a "retroactivity odyssey" (42) of which Danforth is merely the most recent chapter.
B. The Birth of Nonretroactivity: Linkletter v. Walker and Professor Mishkin's Critique
The final ingredient in the recipe for disaster was the Fourth Amendment exclusionary rule. In Mapp v. Ohio (43) the Court had held the exclusionary rule, long applied to remedy Fourth Amendment violations in the federal courts, (44) to be equally binding on state courts. In Linkletter v. Walker, (45) the Court was called upon to decide whether the Mapp rule would apply in federal habeas proceedings. The prospect of upsetting "thousands" (46) of final state court convictions in order to apply the exclusionary rule was too much. (47) In order to "support a desirable result" (48)--preventing the feared major disruption application of the Mapp rule to habeas petitioners would entail--the Court cut a "Faustian bargain," (49) abandoning centuries of adherence to a strict rule of retroactiyity. (50)
The bargain was struck--the Court in Linkletter insisted on a broad authority to determine the retroactivity or prospectivity of judicial rulings (51) and fashioned a test for making that determination for cases on federal habeas. The test, of course, ensured that Mapp would not apply retroactively, by including as relevant considerations the purpose of the rule (the exclusionary rule's purpose being to deter Fourth Amendment violations, the Court found, describing the rule as "an extraordinary procedural weapon that has no bearing on guilt" (52)); the extent to which the parties had relied on the "old" rule (states had relied on the Court's pre-Mapp precedent declining to apply the exclusionary rule to the states (53)); and finally the effect retroactive application would have on the administration of justice (retrospective application of the exclusionary rule "would tax the administration of justice to the utmost" (54)).
The criticism of Linkletter came swiftly and has persisted to date. Professor Paul Mishkin's immediate assault (55) on Linkletter has undoubtedly been the most influential critique. In many ways it was a blueprint for the Danforth decision. Mishkin struck at the very foundation of the Linkletter decision--the Court's dramatic rejection of the long-accepted "declaratory" theory of judging in favor of a "creative" theory of judging. The declaratory model comes from Blackstone, who "stated the rule that the duty of the court was not to 'pronounce a new law, but to maintain and expound the old one.'" (56) Thus, "[t]he judge rather than being the creator of the law was but its discoverer." (57)
The Linkletter Court, however, heralded the ascendancy of the alternative approach of John Austin, who "maintained that Blackstone could not grasp the idea that judges do in fact 'make' law, because of Blackstone's adherence to 'the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by judges.'" (58) Citing with approval those who decried the Blackstonian view as "out of tune with actuality," (59) the Linkletter Court emerged from the Blackstonian "shadow" (60) over its jurisprudence and declared adherence to Austin's view that "judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common-law terms that alone are but the empty crevices of the law." (61) Professor Mishkin, while accepting that "the Blackstonian conception is not entirely valid," (62) lamented Linkletter's move toward Austin and political realism:
Despite (and perhaps also because of) its shortcomings as a description of reality, the "declaratory theory" expresses a symbolic concept of the judicial process on which much of courts' prestige and power depend.... [T]his symbolic view of courts is a major factor in securing respect for, and obedience to, judicial decisions. If the view be in part myth, it is a myth by which we live and which can be sacrificed only at substantial cost; consider, for example, the loss involved if judges could not appeal to the idea that it is "the law" or "the Constitution"--and not they personally--who command a given result. (63)
"Prospective limitation of judicial decisions," wrote Mishkin, "wars with this symbol." (64) Mishkin also noted an "institutional consideration" raised by prospectivity--its impact on the development of constitutional
law. The prospect of prospectivity, Mishkin believed, might reduce or eliminate the incentives of counsel to argue for change in the law. (65) Indeed, Mishkin valued such change even more highly than he did the symbolism of the declaratory view: "Law must in fact change, and its stultification would be too high a price to pay for maintenance of the symbolism." (66)
Relegating the "declaratory" view to a symbolic rather than literal one allowed Mishkin to recognize that law does in fact change, whether one lives in a Blackstonian or an Austinian world. What would differ between the two worlds, posited Mishkin, would be the pace of change. While the proponents of an Austinian world of pure prospectivity would argue its necessity to achieve "needed modernization of the law," (67) the Blackstonian view would "tend to restrain a court from adopting new law that is neither reflective of current community standards nor adequately foreshadowed by prior judicial developments." (68) This, for Mishkin, was the appropriate pace of change, particularly in matters of constitutional law. (69) I will return to a discussion of the effect of nonretroactivity rules on doctrinal development later. (70)
Ironically, Mishkin approved of the result reached in Linkletter. (71) But the reasoning--the abandonment of Blackstone in favor of Austin, as a means for rejecting retroactivity in favor of prospectivity--he found intolerable. He also found it unnecessary, as the court's three-factor retroactivity test failed to distinguish the case at hand, which came to the Court on federal habeas review, from the Mapp decision itself, which arose on direct review. Application of the Linkletter test to Mapp, noted Mishkin, would have resulted in holding enforcement of the exclusionary rule in state court criminal cases to be prospective, rather than retrospective as held in Mapp. (72)
The problem facing the Court in Linkletter was not whether or not the Mapp rule would apply retroactively--that had already been done in Mapp--but rather how the Court might justify retroactive application on direct review (as in Mapp) while avoiding it on federal habeas corpus (in Linkletter). The Linkletter decision was nonresponsive to this problem. (73) The Linkletter holding would be better justified, wrote Mishkin, not by the shift from Blackstonianism to Austinianism deployed in Linkletter, but by an analysis of the functions of habeas corpus. Mishkin thus recast the problem from one of retroactivity versus prospectivity to one of the availability of habeas corpus relief. (74)
Mishkin viewed the function of habeas corpus as varying, depending on the "intended effects" (75) of the constitutional rule to be enforced. Rules with the intended effects of "insur[ing] that none but those guilty be convicted," (76) fall within the "prime function" (77) of habeas corpus: freedom from unjustified imprisonment. Because the development of such rules expresses society's developing standards for confidence in criminal matters, Mishkin believed it sensible that habeas corpus would assess the legality of confinement by the most current standards. (78)
By contrast are rules not intended to promote reliability, but rather to "advance other objectives, such as respect for human dignity and integrity." (79) Protection of rights served by these constitutional rules, because not related to the reliability of the judgment, is not the central mission of habeas review. However, Mishkin believed there still remained a need to rectify such constitutional violations on habeas--enforcement of federal law requires a federal forum, and the Supreme Court's limited capacity demands that the district courts fulfill this enforcement role via habeas corpus. (80) Because this "enforcement function" is a substitute for certiorari review, Mishkin found no reason to apply any rules not applicable on direct review. (81)
Two points must be made regarding Mishkin's focus on a rule's intended effect with respect to "enhancing the reliability of the guilt-determining process." (82) The first is to note that Mishkin, like Bator, drew a sharp distinction between factual guilt or innocence and the adjudicative process used to arrive at a conclusion of guilt or innocence, (83) and held that habeas should be concerned with the latter: "[D]espite the problems inherent in retrial of a defendant, especially after many years, there seems substantial basis for the proposition that habeas corpus should only inquire into the reliability of the earlier process of guilt-determination, rather than seek to determine the fact of guilt itself." (84)
The second point flows from the first. Because Mishkin is concerned with the reliability of the adjudicatory process rather than that of the ultimate guilt/ innocence determination, it is not necessarily an easy task to determine which rules are intertwined with this reliability and which are not. Thus, some constitutional rules might be primarily concerned with human dignity and integrity, implying a limited role for habeas review, but might nonetheless have a "substantial and intended impact" upon reliability, and therefore implicate the core concern of habeas review. (85) I will resume discussion of the difficulty of determining which constitutional rules promote reliable verdicts and which promote other values below. (86)
C. Expansion of the Linkletter Nonretroactivity Doctrine
Despite criticism of Linkletter, the Court continued on its "retroactivity odyssey" not by contracting the rule of "selective prospectivity" (87) set forth in Linkletter, but by expanding it in Johnson v. New Jersey (88) and Stovall v. Denno (89) to a rule of general application, no matter the procedural posture of the case. (90) Notably, Johnson and Stovall, like Linkletter, involved the question of retroactive application of exclusionary rules to state court judgments. Johnson concerned the rules announced in Escobedo v. Illinois (91) and Miranda v. Arizona, (92) requiring exclusion of confessions obtained through custodial interrogations under circumstances not sufficiently protective of the accused's right to remain silent, and came to the Court on certiorari review from the state postconviction track. (93) The Court applied Linkletter and held the Escobedo and Miranda rules not retroactive. (94) Stovall concerned the exclusion of lineup identifications obtained in violation of a defendant's fight to counsel as set forth in Gilbert v. California, (95) and United States v. Wade. (96)
The Court in Stovall embraced "selective prospectivity," announcing the decisions in Gilbert and Wade would apply retroactively to the litigants in those cases but prospectively in all other cases--i.e, only in cases where the lineups occurred after these decisions. (97) Stovall further indicated that the three factors considered hi Linkletter (the purpose of the "new" rule, the extent of reliance on the "old" rule, and the extent of disruption that would be caused by retroactive application) would comprise the retroactivity test in all cases, regardless of procedural posture. (98)
Another way to read Linkletter and subsequent decisions is--rather than as innovative reasoning by the Supreme Court to achieve a "desirable result" (99)--as defensive maneuvering to avoid a federalism crisis. (100) Lower courts had already begun the process of denying retroactive application to the Warren Court's criminal procedure reforms, as is evident in Linkletter and Johnson. In both cases, the Court noted that state courts had nearly unanimously declined to give retroactive effect to the Court's new constitutional rules. (101)
These state court decisions set the stage for the Court's doctrinal step that would take it away from retroactivity--the move from a declaratory model to a creative model of judging. Writing before Linkletter, the New Jersey Supreme Court asserted its general power to legislate from the bench and eschewed Blackstone's declaratory theory as a "splendid myth." (102) Other state courts presaged Linkletter's rejection of the Blackstonian approach. (103)
The Court's conversion to prospectivity thus can be seen as driven from below, both jurisprudentially and politically. In the face of massive opposition from the state courts, it seems likely the Court was concerned about its ability to actually enforce the retroactive application to the states of its procedural rulings in Mapp, Escobedo, Miranda, Gilbert and Wade. (104) That it was driven by concerns particular to the inter-system review of state court judgments occasioned by federalism is essential to an understanding of why the Danforth decision is correct, and why retroactivity in the intra-system review of state and federal postconviction proceedings should be reconsidered without reference to the Supreme Court's "retroactivity odyssey."
D. Justice Harlan's Criticism of the Stovall-Linkletter Doctrine
Criticisms of the Linkletter test--now applicable regardless of the procedural posture of the case--persisted. Two opinions of Justice Harlan would shape the Court's next steps. (105) In Desist v. United States, (106) yet another decision concerning the scope of the exclusionary remedy for Fourth Amendment violations, the Court was called upon to consider the retroactivity of its decision in Katz v. United States, (107) wherein the Court had abandoned the notion that the Fourth Amendment is only violated by some sort of physical trespass or invasion. Desist was a federal narcotics prosecution in which agents used a microphone to record conversations in an adjoining hotel room. (108) The case came to the Court on direct review, and the Court applied the Linkletter test (109) to conclude the Katz rule should enjoy selective prospectivity--it would apply to the litigants in the case, but to no other case in which the search at issue pre-dated the Katz decision itself. (110)
Justice Harlan dissented, and would have given Katz retroactive effect for all cases pending on direct review at the time of the decision. In place of the "doctrinal confusion" spawned by Linkletter, Justice Harlan offered a "rethinking" of the issue. (111) Justice Harlan would have cast aside Stovall's determination that Linkletter applied regardless of procedural posture, and reinstituted the divide between cases reaching the Court on direct review and those on federal habeas review. For cases on direct review, Justice Harlan viewed retroactivity as the only possible solution. Pure prospectivity would be a violation of the "case or controversy" requirement, and selective prospectivity offended principles of equality by treating similarly situated defendants differently. (112)
For cases on federal habeas review, Justice Harlan's approach relied heavily on Professors Bator and Mishkin. Like Professor Bator, Justice Harlan saw the roots of the retroactivity problem in Brown v. Allen and its expansion of federal habeas corpus. (113) And like Professor Mishkin, Justice Harlan relied on the functions of habeas review as distinguishing it from direct review and demanding distinct retroactivity rules. (114)
Indeed, Justice Harlan adopted nearly entirely Mishkin's analysis, describing the same functions for habeas review and urging adoption of the same retroactivity rules proposed by Mishkin. Thus, for constitutional rules intended to enhance the reliability of verdicts, Justice Harlan would preserve full retroactivity. (115) For rules not serving reliability, and for which the habeas court served merely as an enforcement mechanism, (116) "the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place." (117) Justice Harlan's subsequent opinion in Mackey v. United States, (118) while restating with increased vigor his belief that retroactivity on direct review was necessary, demonstrated a significant reformulation of his attitude toward retroactivity on habeas review. Because there were actually three cases before the Court--one arising on direct review and two on collateral attack, (119) Justice Harlan had ample opportunity to expound on how retroactivity ought to work in both settings.
For cases on direct review, Justice Harlan restated his position that the function of the Court--to decide constitutional questions in actual controversies before it--would be inconsistent with either pure prospectivity or selective prospectivity, (120) either of which doctrines would mark an "inexplicable and unjustifiable departure from the basic principle upon which rests the institution of judicial review." (121) To this, Justice Harlan added a note as to some of the "untoward consequences" on doctrinal development occasioned by prospectivity. Justice Harlan feared prospectivity would vitiate the lower courts' "responsibility for developing or interpreting the Constitution." (122) A lower court would not venture to engage in doctrinal development, Justice Harlan believed, if it might be subject to reversal for applying such developments retroactively, even if only to the litigants in the case before the court. (123) The lower courts would be "reduced largely to the role of automatons, directed by [the Supreme Court] to apply mechanistically all then-settled federal constitutional concepts to every case before them." (124) To Justice Harlan, for the Court to arrogate to itself the exclusive power to develop constitutional law, and eliminate lower courts' participation in this project, was "intolerable." (125) Furthermore; Justice Harlan worded that prospectivity would eliminate the incentives of litigants seeking modification of constitutional doctrines to pursue Supreme Court review. (126)
While true to his Desist dissent as to cases arising on direct review, Justice Harlan's opinion in Mackey with respect to cases arising from collateral attacks beat a significant retreat from his previous position. While retaining a focus on the different function to be served by habeas--as contrasted with direct--review, Justice Harlan otherwise broke with Mishkin's analysis, which had so heavily influenced his dissent in Desist. The reason appears to be that Justice Harlan, frustrated with "a long course of habeas decisions in this Court which ... constitute an unsound extension of the historic scope of the writ and an unfortunate display of insensitivity to the principles of federalism which underlie the American legal system," (127) sought to achieve a restriction of the writ via the retroactivity problem.
As in Desist, Justice Harlan asserted that the starting point for considering retroactivity would be an assessment of the functions of habeas corpus. (128) After once again reciting with some bitterness the recent expansion of the writ in Brown v. Allen and Fay v. Noia, (129) and pointedly noting that his own views on the proper function of habeas corpus review had not been adopted by the Court, (130) Justice Harlan caricaturized the prevailing view as being "that [habeas] provides a quasi-appellate review function" (131) to "inquire into every constitutional defect" not waived or harmless. (132) As in Desist, Justice Harlan insisted that nonretroactivity would be an appropriate general rule for such "quasi-appellate review" directed primarily at enforcement of federal constitutional doctrine. (133)
But in Desist, Justice Harlan had followed Mishkin and recognized the enforcement function as one of two functions served by habeas review, the other being the enhancement of reliability. (134) Indeed Justice Harlan had advocated for retroactivity in cases where habeas review served to guarantee reliability. (135) By summarizing prevailing habeas jurisprudence as concerned solely with providing "quasi-appellate" enforcement of federal law, Justice Harlan was able to cast aside that part of Mishkin's analysis which would have preserved a measure of retroactivity on habeas review.
Justice Harlan did insist on two exceptions to his proposed general rule of nonretroactivity on habeas review. First, constitutional developments which place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" would enjoy retroactive application. (136) Second, new constitutional rules "implicit in the concept of ordered liberty" would be retroactive as well. (137)
That Justice Harlan did not, in Mackey, preserve retroactivity for rules enhancing the reliability of criminal judgments, as he had in Desist, is perhaps the single most surprising shift between the two opinions. Justice Harlan offered three explanations for this departure. First, he once again adverted to his description of the prevailing function of habeas--as determined by Justice Harlan's brethren on the Court--as no longer principally to inquire into guilt or innocence, but rather to serve the "quasi-appellate" function already discussed. (138) Second, Justice Harlan placed an emphasis on finality in Mackey that he had not in Desist: "Finality in the criminal law is an end which must always be kept in plain view." (139) Justice Harlan believed this interest in finality would often outweigh even the reliability interest that would be served by retroactive application of constitutional rules "purportedly aimed at improving the factfinding process." (140) Finally, in Mackey Justice Harlan questioned the very distinction he had set forth (following Mishkin) in Desist between rules designed to serve reliability and rules serving other values, declaring this distinction "inherently intractable." (141)
Justice Harlan's emphasis on finality was buttressed by citations to Professor Bator's work and to a 1970 article by Judge Henry Friendly of the Second Circuit. (142) Judge Friendly's views...
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