The Supreme Court announces a new constitutional rule governing criminal cases. It then holds that the newly recognized constitutional right is the kind of “substantive” or “watershed” procedural rule that applies retroactively even if a defendant’s conviction has become “final” after all appeals are exhausted.
Query: Do state courts also have to apply the new rule retroactively in post-conviction proceedings brought under state law? Under the Constitution’s Supremacy Clause, the answer seems at first blush self-evident: yes.
Not so, according to three of the conservatives on the Supreme Court. Writing for the three in dissent, Justice Antonin Scalia argued last week [Jan. 25] that states can adopt their own rules on whether to give an inmate the benefit of a newly recognized constitutional right.
A six-justice majority in Montgomery v. Louisiana that included Chief Justice John G. Roberts Jr. decisively rejected Scalia’s position. “[W]hen a new substantive rule of constitutional law controls the outcome of a case,” Justice Anthony M. Kennedy wrote for the majority, “the Constitution requires state collateral review courts to give retroactive effect to that rule.”
This is the important preliminary holding in the decision that retroactively applies the court’s four-year-old decision to prohibit mandatory life-without-parole sentences for juvenile killers. The ruling effectively requires resentencing or parole hearings for as many as 1,300 or more prisoners currently serving life sentences for murders committed when they were teenagers.
In immediate effect, the ruling may mean freedom for Henry Montgomery after spending nearly 46 years in prison for killing a deputy sheriff in Louisiana when he was, as Kennedy put it, “a 17-year-old boy.” Montgomery, now 69, says he has been a model prisoner, but under the life-without-parole sentence he had no established route to seek his release.
Kennedy noted that the court in two previous decisions had ruled out capital punishment or mandatory life-without-parole sentences for juvenile offenders on the premise that children are “constitutionally different” from adults in terms of culpability (Roper v. Simmons, 2005; Miller v. Alabama, 2012). In deciding to apply Miller retroactively, Kennedy concluded that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”
Montgomery cited Miller in a motion filed barely six months later under state law to “correct” what he called the “illegal” sentence imposed in his case in 1970. A lower court judge ruled Miller did not apply retroactively, and the Louisiana Supreme Court agreed with the chief justice in a lone dissent.
Most state and federal appeals courts to rule on the issue decided to apply Miller retroactively; Louisiana was one of five states in the minority. The Supreme Court agreed to hear Montgomery’s appeal to settle the issue. But the court also raised on its own the question of whether it had any jurisdiction to review the Louisiana Supreme Court’s decision on how to apply Miller in the state’s own courts.
Significantly, the state did not dispute the Supreme Court’s jurisdiction but merely argued for upholding the Louisiana court’s decision. The court instead appointed a Washington lawyer, Richard Bernstein, to argue as a “friend of the court” against its jurisdiction. In his brief, Bernstein said the retroactivity rules applied only to federal habeas corpus cases, not to post-conviction challenges in state courts.
The court’s retroactivity rule stems from its fractured decision in a federal habeas corpus case, Teague v. Lane (1989). In the controlling opinion, Justice Sandra Day O’Connor said that a new constitutional rule of criminal procedure would not be applied retroactively unless it amounted to a “substantive” rule or a “watershed” procedural rule. Montgomery’s lawyer argued vigorously that Miller fit within the first exception, while the state’s attorney insisted that the decision merely gave a life-sentenced juvenile offender a procedural right to seek release.
The oral arguments in Montgomery on Oct. 13 left observers in doubt whether the court would decide the issue at all. In retrospect, it is now clear that Scalia and fellow conservatives Clarence Thomas and Samuel A. Alito Jr. were intent on giving states leeway on whether to extend the benefit of newly recognized constitutional rights to prisoners after their cases had become final.
In his dissenting opinion, Scalia argued that the Teague v. Lane exception to the general rule against retroactivity “is a matter of grace, not constitutional prescription.” Thomas and Alito, who like Scalia had dissented in Miller, joined his opinion, but Thomas appeared to go even further in a separate dissent that argued against retroactively applying any new constitutional rule however “substantive” or “watershed.”
Unsurprisingly, Kennedy, part of the five-justice majority in Miller along with the four liberals, saw the court’s power to correct constitutional violations at stake. “[W]hen a state enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful,” he wrote.
Less predictably, Roberts joined the new decision even though he had strongly dissented from the original ruling. Roberts did not write separately to explain his position, but one can infer that he was unwilling to join his fellow conservatives in curtailing the court’s constitutional supremacy over state courts on matters of federal law. When the court speaks, Roberts may well have been thinking, the states need to listen.