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October 12, 2015

Montgomery wards: noticing the lack of originalism analysis of sentencing finality

As noted in this prior post, I have been doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and today's post is of the "dog that didn't bark" variety.  Specifically, upon quickly reviewing the 20+ briefs that have been submitted in Montgomery (all of which can be found via this SCOTUSblog page), I noticed that there was essentially no discussion of what an originalist constitutional interpretation would have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally.  (Notably and tellingly, a number of briefs discussing the jurisdictional issue flagged by SCOTUS in Montgomery do provide some originalism analysis of that issue.  But these briefs, nor any of those just focused on the finality/retroactivity issue, had anything to say about how an originalist perspective might inform the Court's work in this case.)

For those who are not big fans of originalist constitutional interpretation, perhaps the absence of any discussion or debate in the Montgomery briefing about what the Framers would have thought about Eighth Amendment retroactivity is a welcome development.  But as I sought to spotlight in this recent law review article and this blog post last year, I think it would be interesting and potentially quite useful to examine at some lengthy whether and how the Framing generation considered finality/retroactivity issues.  Of particular note, as I explain in my article, the text of the Constitution itself reveals, at least indirectly, that the Framers likely did not have an especially strong commitment to criminal justice finality interests:

The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities.  Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.”  These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems.  These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final.  Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.

In part because I am neither a historian nor especially enthralled by originalism, I did not pursue these ideas in this SCOTUS amicus brief that I helped submit in the Montgomery case. But I was hoping that maybe someone or some group drawn to originalism would discuss what an originalist constitutional interpretation might have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. One Justice who often seems drawn to Eighth Amendment originalism, Justice Thomas, almost never asks questions, and thus I am not expecting him to bring up the issue during oral argument. But maybe I can dream, at least for the next few hours, that Justice Scalia might enjoy puzzling the advocates by asking a question on this front during argument.

Prior posts in this series and concerning finality matters:

October 12, 2015 at 01:06 PM | Permalink


Why is originalism really an issue here? Doesn't Teague presuppose the upsetting of long since final judgments? I think the full, faith and credit statute has been around since the first Congress.

Posted by: federalist | Oct 12, 2015 2:25:38 PM


IMO the only item you mention that has an arguable bearing on finality is the pardon power, and I believe it cuts against (though admittedly only tenuously) there being some wide-ranging judicial power to revisit cases after final judgement has been entered. The bare fact that the president has an unreviewable power to set aside convictions is at least some evidence of where the framers thought such action should come from.

I don't believe that there being appellate jurisdiction says anything at all about a power to revisit cases after final judgement has been entered. And my understanding of the Art 1. habeas writ is that it is a very different thing from modern statutory habeas. That Art. 1 habeas is satisfied so long as there is a legal reason to hold someone and does not admit of attack on that reason, only examination of whether there is in fact a reason or not (warrants and criminal sentences being the major items that satisfy the query).

Posted by: Soronel Haetir | Oct 12, 2015 2:43:29 PM

2254 is not the Article I writ of habeas corpus. As Soronel notes, the common law writ at the time of the framing was satisfied if there was a judgment from a court of competent jurisdiction. The one potential exception was imprisonment for something that was not properly criminal (I am thinking of the English case granting the writ when charges were laid against jurors for acquitting a defendant in violation of the judge's instructions -- back when judges could give an opinion on guilt in the instructions). I am not sure how that would apply to the excessive penalty situation.

Posted by: tmm | Oct 12, 2015 5:09:07 PM

One article on the subject has this to say, which accords with my own understanding that new rules were alwats thought to be retroactive:

Matters were not always so difficult. Indeed, prospectivity was alien to
the common law, which simply assumed that new decisions would be applied
retroactively.2 Early American writers tended to treat displaced law as though
it had never been the law.3 In fact, this view is implicit in Marbury v.
Madison,4 in which Chief Justice Marshall assumed that a decision of unconstitutionality was simply a declaration of a preexisting state of affairs and rendered the law a complete nullity. This assumption was consistent with the
concept of the eighteenth and nineteenth centuries that judges are discoverers
rather than makers oflaw; thus, the need for any form of retroactivity analysis
did not become obvious until well into the twentieth century. Some awakening
has occurred in the federal courts in fits and starts over the past fifty
years,5 but it was not untill965, when the Supreme Court decided Linkletter v.
Walker ,6 that retroactivity analysis truly came to the fore.

John Bernard Corr, Retroactivity: A Study in Supreme Court Doctrine
as Applied, 61 N.C. Law Rev. 745, 746 (1983)

Posted by: Da Man | Oct 13, 2015 2:14:02 PM

Retroactivity concerns was influenced by the much broader reach of court action.

Marbury v. Madison was probably (I have seen a few suggest a minor case or two otherwise) last time a federal statute was declared unconstitutional for 1/2 century. Federal courts had very limited reach into criminal law in antebellum times and then applied due process and habeas protections narrowly into the 20th Century.

Now with broad results, the rules are somewhat different. Originalism is also often of limited value as applied to the criteria cited in that long excerpt because a basic floor is not the ultimate debate but how broad the protections should be. Again, originally, criminal appeals were quick affairs and long term detention in prisons not anywhere like today. There probably can be some lessons drawn and the comments are interesting in that respect, but still.

Posted by: Joe | Oct 13, 2015 3:33:13 PM

There's a lot of originalism discussions in the early retroactivity cases including (iirc) Teague. Essentially, a valid conviction was presumed valid for Habeas Corpus purposes for a long time. It was only through the efforts of reformers later that it was expanded to allow for Constitutional review of convictions. It's why AEDPA is able to justify itself without implicating the suspension clause of the Constitution. Essentially, it only implicates the expanded writ, not the original writ.

So I suspect an originalist argument wouldn't fare well for those who want retroactivity outside of a direct appeal.

Posted by: Erik M | Oct 13, 2015 7:57:18 PM

Anyone not enthralled by originalism should propose and enact an Amendment. For example, get an Amendment allowing judicial review.

Posted by: Supremacy Claus | Oct 15, 2015 12:18:25 PM

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