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June 22, 2020

"The Substance of Montgomery Retroactivity: The Definition of States’ Supremacy Clause Obligation to Enforce Newly-Recognized Federal Rights in Their Post-conviction Proceedings and Why It Matters"

The title of this post is the title of this new article authored by Eric Freedman now available via SSRN. Here is its abstract:

In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court made a decision of far-reaching importance to the criminal justice system: the Supremacy Clause requires states adjudicating post-conviction attacks to give full retroactive effect to “substantive” new rules of federal constitutional law.

The significance of this holding has so far been under-appreciated because of the assumption that “substantive” has the same narrow meaning in the context of the state’s obligations under the Supremacy Clause as it does under Teague v. Lane, 489 U.S. 288 (1989), which sets forth prudential limitations on the claims that the federal courts will entertain when adjudicating federal habeas corpus attacks on state criminal convictions.

But, this article argues, the two contexts are not the same and the assumption is unwarranted.  To be sure, rules that are “substantive” under Teague are also substantive under Montgomery.  But because Montgomery is based on the Supremacy Clause, the class of “substantive” federal rules for Montgomery purposes should be far broader than it is for Teague purposes.

“Substantive” rules under Montgomery, I propose, include all those whose policy underpinnings extend beyond enhancing the factual accuracy of particular decisions.  Examples of such rules are ones whose aims include discountenancing government misconduct (e.g., barring evidence derived from coerced confessions or unreasonable searches) and achieving full community participation in the judicial process (e.g., adding new groups to the ones that may not constitutionally be excluded from jury service, and expanding the categories of juror bias that a defendant must be permitted to litigate).

Adopting the proposed definition will have structural benefits to the system of criminal justice adjudication.  The Montgomery decision will necessarily have the effect of increasing the number of state post-conviction decisions.  The broader the definition of “substantive” the more pronounced the effect.  The more pronounced the effect the better off the criminal justice system will be, for two reasons.  First, state post-conviction decisions will be some extent be able to fill the gap in the normal creation of new rules by lower federal courts that has resulted from the restrictive ruling in Teague.  Second, the greater the salience of post-conviction decisions, the greater the pressure on the states to improve the quality of their post-conviction systems.

Thus, in the interests of making modest but real improvements in the quality of our criminal law, lawyers, legislators, academics, judges, and all individuals concerned about justice should seek adoption of the proposal of this article.

June 22, 2020 at 06:52 PM | Permalink


I think the hypothesis misstates the holding of Montgomery and misunderstands state collateral review.

The problem with "retroactivity" in state collateral review is not the applying of decisions to pending cases but whether a new decision permits an otherwise untimely claim to be raised out of time. I think, either on certiorari review or on federal habeas under AEDPA, the federal courts will require the states to apply current law to any collateral review that is permitted by state law. Nothing in the Constitution or Montgomery require a state to have a collateral review process or to allow late claims.

Montgomery sort of misunderstands this fact and uses the federal habeas rules under Teague to define the contours of state collateral review. I am not sure that Teague is still good law under the deferential rules in AEDPA. But such unauthorized confinement questions are the core of common law habeas (even if modern habeas is vastly broader) and, thus, can easily be justifiably applied retroactively.

Posted by: TMM | Jun 23, 2020 11:51:35 AM

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