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February 20, 2008

SCOTUS embraces criminal justice federalism in Danforth

The big criminal justice opinion from SCOTUS today is in Danforth, which Lyle Denniston effectively summarizes in this post.  Here are highlights of Lyle's summary:

Dividing 7-2, the Supreme Court ruled Wednesday that states, under their own laws or constitutions, may give state prisoners the retroactive benefit of Supreme Court criminal law decisions, even if the Court itself has ruled they are not retroactive under federal law. Justice John Paul Stevens wrote for the majority in Danforth v. Minnesota (06-8273). Chief Justice John G. Roberts, Jr., dissented, joined by Justice Anthony M. Kennedy.

The issue in the case is whether the so-called “Teague” formula (Teague v. Lane) for deciding when a Supreme Court ruling on criminal procedure is to apply to earlier cases was binding on the states. Justice Stevens wrote: “The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.”...  “A decision by this Court that a new rule does not apply retroactively under Teague,” Justice Stevens wrote, “does not imply that there was no right and thus no violation of that right at the time of trial — only that no remedy will be provided in federal habeas courts.  It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”

Stevens added: “The states that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state post-conviction proceedings.” Federal law does not prohibit them from doing so, the Court said....

Chief Justice Roberts, in dissent, said the decision was “contrary to the Supreme Clause and the Framers’ decision to vest in ‘one supreme Court’ the responsibility and authority to ensure the uniformity of federal law.” Citing Marbury v. Madison (1803), the Chief Justice noted that “this Court has held that the question whether a particular ruling is retroactive is itself a question of federal law. It is basic that when it cmes to any such question of federal law, it is ‘the province and duty’ of this Court ‘to say what the law is.’….State courts are the final arbiters of their own state law; this Court is the final arbiter of federal law. State courts are therefore bound by our rulings on whether our cases construing federal law are retroactive.”

The opinions Danforth v. Minnesota (06-8273) are now available here, and I likely will have lots to say once I have a chance to take in the full opinion.  For now I will just comment on the remarkable voting pattern, with only the Chief Justice writing a dissent and with supposed swing voter Justice Kennedy coming along with the dissenting views of the nation's umpire in chief.

February 20, 2008 at 11:36 AM | Permalink


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Three cheers for the seven justices who understand that federlism is a constitutional command, not an opprtunity to use federal policy concerns to order around sovereign states.

Posted by: Da Man | Feb 20, 2008 12:10:45 PM

I think me and Kansas called it.

Posted by: S.cotus | Feb 20, 2008 12:23:58 PM

Three cheers for the seven justices who understand that federlism is a constitutional command, not an opprtunity to use federal policy concerns to order around sovereign states.

Three cheers for people who can actually spell federalism and who realize that Danforth is a bit more complicated than that.

Posted by: | Feb 20, 2008 12:24:34 PM

Actually, Kansas couldn't have been more wrong. Kansas' position was that state courts don't have to do anything once a case becomes final, including apply any new rule announced during the pendency of an appeal. Danforth makes pretty clear that this position is wrong and that state court authority in this area is a one-way ratchet - they can always do more than in required (so Danforth wins) but they can never do less (so Griffith stands). Roberts gets, and disagrees with, this result, but it is the result nonetheless.

Posted by: Anon | Feb 20, 2008 2:29:08 PM

Three cheers for bloggers with the courage to sling mud anonymously.

Posted by: | Feb 20, 2008 2:29:11 PM

States do not have to provide post-conviction relief. But, if they do so choose, they can provide more generous application of a new rule than Teague mandates. In view of today’s decision was Dorthy or I wrong?

Posted by: S.cotus | Feb 20, 2008 3:12:58 PM


You are half-right. States do not have to provide any post-conviction relief. But when they do, they cannot deny the minimum level of retroactivity that SCOTUS precedents demand. However, they can provide greater retroactivity than those same precedents require.

Posted by: Da Man | Feb 20, 2008 3:39:54 PM

what conversation are y'all referring to?

Posted by: Reader | Feb 20, 2008 3:57:31 PM

"However, they can provide greater retroactivity than those same precedents require."

This is what I was saying. And, I think it was what Kansas was saying.

Posted by: S.cotus | Feb 20, 2008 4:02:25 PM


Kansas was saying that, because States don't have to provide a direct appeal or a collateral attack, they don't have to obey SCOTUS precedents saying that "X decision applies retroactively." That aspect of Kansas' brief is not supported by today's ruling.

Posted by: Da Man | Feb 20, 2008 4:07:56 PM

I ought to re-read the majority opinion, but I disagree with Da Man's comments that it is now clear that in a state habeas proceeding states have to provide retroactivity at least up to Teague's levels. While Danforth's brief talked in terms of Constitutional "floors," Stevens's opinion invokes no such language. Indeed, even the ACLU's brief admitted that states could likely do less than Teague on state habeas, but if nothing else it's a separate question requiring a due process determination.

There's a good chance that the Court would say that states must provide at least Teague levels of retroactivity for state habeas, but the matter hasn't been addressed. So for now I wouldn't be surprised to see some states adopt a Teague-lite, where they use Teague but, say, eliminate the exceptions which allow for full retroactivity.

In any event today's opinion is the correct result. Teague was based in the Court's supervisory power and an interpretation of the habeas statute. The idea that retroactivity in post-conviction relief is inextricably intertwined with the underlying constitutional right makes little sense. If the Chief's dissent is to be believed, Congress could not pass a law adding to or subtracting to the Teague framework for federal habeas, a result Teague does not appear to support and I would be surprised to see the Supreme Court accept.

Posted by: MJG | Feb 20, 2008 4:20:20 PM

MJG is right that the majority opinion doesn't use the terms "floors" or "ceilings." But it makes emphatically clear that federalism is a one-way street: state courts are obliged to enforce federal constitutional rights, and can always go further. So if minimum federal due process requires full retroactive application of a watershed rule (should one ever be announced), state courts would have to comply. This is where Kansas gets it wrong.

Posted by: Anon | Feb 20, 2008 7:40:21 PM

Kansas said that they don't have to (unless the Supreme Court says so), but they CAN if they want. Kansas wrote "Thus, unless this Court is to overrule more than a century of precedent, it follows as a matter of recognized constitutional principle that States are free to apply their own retroactivity doctrines in post-conviction proceedings. And that choice is a two-way street, including several options: States can create their own retroactivity doctrines that are either broader or narrower than Teague, or they may decline to recognize retroactivity at all. See, e.g., Linkletter v. Walker, 381 U.S. 618, 629 (1965) (the Constitution neither prohibits nor requires that new decisions be given retroactive effect in collateral proceedings). Given the choice, many States may well decide that the Teague doctrine is appropriate and practical for use in their post-conviction proceedings. But, as a matter of constitutional federalism
principles, States are not required to reach that conclusion."

The Supreme Court wrote "Our recent decision in Whorton v. Bockting, 549 U. S. ___ (2007), makes clear that the Minnesota court correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that case was decided. Nevertheless, we granted certiorari, 550 U. S. ___ (2007), to consider whether Teague or any other federal rule of law prohibits them from doing so.... Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas. Linkletter spoke in broad terms about the retroactive applicability of new rules to state convictions that had become final prior to our announcement of the rules. Although Linkletter arose on federal habeas, the opinion did not rely on that procedural posture as a factor in its holding or analysis. Arguably, therefore, the approach it established might have been applied with equal force to both federal and state courts reviewing final state convictions. But we did not state—and the state courts did not conclude—that Linkletter imposed such a limitation on the States."

Posted by: S.cotus | Feb 21, 2008 7:17:32 AM

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