Lead Opinion
delivered the opinion of the Court.
Thеse cases, one state and one federal, concern the retrospective application of Batson v. Kentucky,
In Batson,
I
A. No. 85-5221. Petitioner Randall Lamont Griffith, a black person, was indicted in 1982 in the Circuit Court of Jefferson County, Ky. (the same court where Batson was tried), on charges of first-degree robbery, theft by unlawful taking,
Defense counsel expressed concern that Griffith was to be tried by an all-white jury. He asked the court to request the prosecutor to state his reasons for exercising peremptory challenges against the four prospective black jurors. The request was refused. Id., at 13. Counsel then moved for discharge of the panel, alleging that the prosecutor’s use of peremptory challenges to remove all but one of the prospective black jurors constituted a violation of Griffith’s Sixth and Fourteenth Amendment rights. Id., at 15. The court denied the motion. The jury returned a verdict of guilty on the charge of first-degree robbery and fixed petitioner’s punishment at 10 years’ imprisonment.
The Supreme Court of Kentucky, with an unpublished memorandum opinion, affirmed the judgment of conviction. App. 17. The court rejected petitioner’s claim that the prosecutor’s use of peremptory challenges deprived him of guaranteed equal protection. It relied on Swain v. Alabama,
Griffith timely filed here a petition for a writ of certiorari, While his petition was pending, this Court decided Batson v. Kentucky, supra, where it rejected a portion of the reasoning of Swain v. Alabama on which the Kentucky court had relied.
B. No. 85-5731. In 1984, petitioner Willie Davis Brown, a black person, was convicted by a jury in the United States District Court for the Western District of Oklahoma on narcotics charges. During jury selection, two venire panels were assembled. 6 Record 2-10.
As prospective jurors were being assembled for the second venire panel, the prosecutor called the jury clerk to inquire about the racial composition of the additional venire. At a hearing held later while the jury was deliberating, there was evidence that the prosecutor said to the clerk: “We would like to have as few black jurors as possible.” App. 51. The clerk testified, however, that shе remembered the prosecutor’s comment to be: “Don’t get any blacks on this jury.” Id., at 38-39. The clerk went on to say that she did not alter the jury selection in any way in response to the prosecutor’s comment. Id., at 44-45. The District Court concluded that the prosecutor’s contact with the jury clerk “would have to be looked at and dealt with by someone,” id., at 44, inasmuch as it fell “into the category of possible prosecutorial misconduct,” id., at 46, but that it did not affect the integrity of the selection of the jury. Id., at 45. The court therefore concluded that a new trial would not be necessary if the jury convicted petitioner. Id., at 46.
The United States Court of Appeals for the Tenth Circuit affirmed the judgment of conviction.
Prior to our Batson decision, petitioner timely filed with this Court a petition for a writ of certiorari. We granted certiorari,
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Twenty-one years ago, this Court adopted a three-pronged analysis for claims of retroactivity of new constitutional rules of criminal procedure. See Linkletter v. Walker,
Shortly after the decision in Linkletter, the Court held that the three-pronged analysis applied both to convictions that were final
In United States v. Johnson,
In Justice Harlan’s view, and now in ours, failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudi-| cation. First, it is a settled principle that this Court adjudi-* cates only “cases” and “controversies.” See U. S. Const., Art. III, §2. Unlike a legislature, we do not promulgate new rules of constitutional сriminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have
“If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. ... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States,401 U. S., at 679 (opinion concurring in judgment).
As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final. Thus, it is the nature of judicial review that precludes us from “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.” Ibid. See United States v. Johnson,
Second, selective application of new rules violates the principle of treating similarly situated defendants the same. See Desist v. United States,
The third category — where a new rule is a “clear break” with past precedent — is the one at issue in these cases. We described it in United States v. Johnson,
“[WJhere the Court has expressly declared a rule of criminal procedure to be ‘a clear break with the past,’ Desist v. United States,394 U. S., at 248 , it almost invariably has gone on to find such a newly minted principle nonretroactive. See United States v. Peltier,422 U. S. 531 , 547, n. 5 (1975) (Brennan, J., dissenting) (collecting cases). In this . . . type of case, the traits of the particular constitutional rule have been less critical than the Court’s express threshold determination that the ‘“new” constitutional interpretatiо[n] ... so change[s] the law that prospectivity is arguably the proper course,’ Williams v. United States,401 U. S., at 659 (plurality opinion). Once the Court has found that the new rule was unanticipated, the second and third Stovall factors —reliance by law enforcement authorities*325 on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of nonretroactivity. See, e. g., Gosa v. Mayden,413 U. S., at 672-673, 682-685 (plurality opinion); Michigan v. Payne,412 U. S., at 55-57 .”
Thus, we recognized what may be termed a “clear break exception.” Under this exception, a new constitutional rule was not applied retroactively, even to cases on direct review, if the new rule explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overturned a longstanding practice that lower courts had uniformly approved. Id., at 551. The Fourth Amendment ruling in Payton v. New York,
In Shea v. Louisiana,
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The question whether a different retroactivity rule should apply when a new rule is a “clear break” with the past, however, is squarely before us in the present cases. In Allen v. Hardy,
First, the principle that this Court does not disregard current law, when it adjudicates a case pending before it on direct review, applies regardless of the specific characteristics of the particular new rule announced. The Court recognized in United States v. Johnson that the fact that a new rule is a clear break with the past is relevant primarily because it implicates the second and third Stovall factors of reliance by law enforcement officials and the burden on the administra
Second, the use of a “clear break” exception creates the same problem of not treating similarly situated defendants the same. James Kirkland Batson, the petitioner in Batson v. Kentucky, and Randall Lamont Griffith, the petitioner in the present Kentucky case, wеre tried in Jefferson Circuit Court approximately three months apart.
We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. Accordingly, in No. 85-5221, the judgment of the Supreme Court of Kentucky is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. In No. 85-5731, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Notes
In Kentucky, upon the completion of voir dire, the parties simultaneously exercise their respective peremptory challenges. Each side strikes names from the list of jurors who have been qualified and presents the strikes to the court. Ky. Rule Crim. Proc. 9.36(2).
“If the number of prospective jurors remaining on the list [after peremptory challenges] exceeds the numbеr of jurors to be seated, the cards bearing numbers identifying the prospective jurors [are] placed in a box” and the clerk of the court draws at random the number of cards necessary “to reduce the jury to the number required by law.” Ibid.
Before submitting the case to the jury, the trial court granted Griffith’s request for a directed verdict of acquittal on the charge of theft by unlawful taking. See Tr. 204-206.
The number of prospective jurors in the first venire who were excused for cause resulted in a remaining number insufficient to constitute a full petit jury. 6 Record 9-10.
There is some confusion as to the number of prospective black jurors in the total venire. According to a statement in the reсord, there were six in the two panels. Id., at 20. At oral argument, counsel for petitioner Brown stated that five had been called. Tr. of Oral Arg. 3. There appears to be agreement, however, that two black jurors were excused by the prosecutor’s use of peremptory challenges. See ibid.; 6 Record 20; App. 14.
By “final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. See United States v. Johnson,
In United States v. Johnson, the Court held that the Fourth Amendment ruling announced in Payton v. New York,
We noted in Johnson that our review did not address the area of civil retroactivity. See
See, among others, Brown v. Louisiana,
These two categories, in which new rules are automatically applied retroactively, are not affected in any way by our decision today.
In Solem v. Stumes the Court concluded that the rule announced in Edwards was not retroactive to a conviction that had become final.
Petitioner Griffith argues that the Batson ruling was not a “clear break” with the past because it did not announce a new principle of constitutional law under the Equal Protection Clause. Whatever the merits of that argument might be, it is foreclosed by Allen v. Hardy.
Batson was tried in February 1984. See App. in Batson v. Kentucky, O. T. 1985, No. 84-6263, p. 1. Petitioner Griffith was tried in May of that year. App. in No. 85-5221, p. 1. And, for what it may be worth, petitioner Brown was tried in Oklahoma in June 1984. App. in No. 85-5731, p. 2.
Concurrence Opinion
concurring.
I join the Court’s opinion, and consider it an important step toward ending the confusion that has resulted from applying Linkletter v. Walker,
As the cases we decide today involve only the retroactivity of decisions pending on direct review, it was not necessary for the Court to express an opinion with respect to habeas corpus petitions. As I read the Court’s opinion, this question is carefully left open until it is squarely presented. It is to be hoped that the Court then will adopt the Harlan view of retroactivity in cases seeking relief on habeas petitions. See Mackey v. United States, supra, at 681-695. Under that view, habeas petitions generally should be judged according to the constitutional standаrds existing at the time of conviction.
Dissenting Opinion
with whom The Chief Justice and Justice O’Connor join, dissenting.
Last Term this Court decided that the rule announced in Batson v. Kentucky,
“Two concerns purportedly underlie the majority’s decision. The first is that retroactivity is somehow an essential attribute of judicial decisionmaking, and that when the Court announces a new rule and declines to give it retroactive effect, it has abandoned the judicial role and assumed the function of a legislature — or, to use the term Justice Harlan employed in describing the problem, a ‘super-legislature.’ Desist v. United States,394 U. S. 244 , 259 (1969) (Harlan, J., dissenting). The second (and not completely unrelated) concern is fairness. It is the business of a court, the majority reasons, to treat like cases alike; accordingly, it is unfair for one litigant to receive the benefit of a new decision when another, identically situated, is denied the same benefit. The majority’s concerns are no doubt laudable, but I cannot escape the conclusion that the rule they have spawned makes no sense.
“As a means of avoiding what has come to be known as the super-legislature problem, the rule announced by the majority is wholly inadequate. True, the Court is not and cannot be a legislature, super or otherwise. But I should think that concerns about the supposed usurpa*331 tion of legislative authority by this Court generally go more to the substance of the Court’s decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture-that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in ‘judicial legitimacy.’
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“The claim that the majority’s rule serves the interest of fairness is equally hollow. Although the majority finds it intolerable to apply a new rule to one case on direct appeal but not to another, it is perfectly willing to tolerate disparate treatment of defendants seeking direct review of their convictions and prisoners attacking their convictions in collateral proceedings. As I have stated before, see [United States v.] Johnson, [457 U. S. 537 , 566-568 (1982)] (White, J., dissenting); Williams v. United States,401 U. S. 646 , 656-659 (1971) (plurality opinion), it seems to me that the attempt to distinguish between direct and collateral challenges for purposes of retroаctivity is misguided. Under the majority’s rule, otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system. The disparity is no different in kind from that which occurs when the benefit of a new constitutional rule is retroactively afforded to the defendant in whose case it is announced but to no others; the Court’s new*332 approach equalizes nothing except the numbers of defendants within the disparately treated classes.” Shea v. Louisiana,470 U. S. 51 , 62-64 (1985) (White, J., dissenting).1
The Court’s invocation of fairness also overlooks the fact that it is a fortuity that we overruled Swain v. Alabama,
For the foregoing reasons, I would adhere to the approach set out in Stovall v. Denno, supra, at 300, and recognize no distinction for retroactivity purposes between cases on direct and collateral review. But even if I saw some merit in applying the Harlan approach to cases on direct appeal, I would nonetheless preserve the exception for “clear breaks” recognized in United States v. Johnson,
“Once the Court has found that [a] new rule was unanticipated, the second and third Stovall factors — reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of non-retroactivity.”457 U. S., at 549-550 (citations omitted).
The Court has already recognized that Batson constitutes “an explicit and substantial break with prior precedent,” and that “prosecutors, trial judges, and appellate courts throughout our state and federal systems justifiably have relied on the standard of Swain. ” Allen v. Hardy, supra, at 258, 260. The reasons that the Court gave in Allen v. Hardy for concluding that “retroactive application of the Batson rule on collateral review of final convictions would seriously disrupt the administration of justice,”
The Court does not in these cases address the differential treatment of cases on direct and collateral review. I adhere to my view that the Court’s decisions in United States v. Johnson,
“The majority recognizes that the distinction between direct review and habeas is problematic, but justifies its differential treatment by appealing to the need to draw ‘the curtain of finality,’ [470 U. S.,] at 60, on those who were unfortunate enough to have exhausted their last direct appeal at the time Edwards [v. Arizona,451 U. S. 477 (1981),] was decided. Yet the majority offers no reasons for its conclusion that finality should be the decisive factor. When a conviction is overturned on direct appeal on the basis of an Edwards violation, the remedy offered the defendant is a new trial at which any inculpatory statements obtained in violation of Edwards will be excluded. It is not clear to me why the majority finds such a burdensome remedy more acceptable when it is imposed on the State on direct review than when it is the result of a collateral attack. The disruption attendant upon the remedy does not vary depending on whether it is imposed on direct review or habeas; accordingly, if the remedy must be granted to defendants on direct appeal, there is no strong reason to deny it to prisoners attacking their convictions collaterally. Conversely, if it serves no worthwhile purpose to grant the remedy to a defendant whose conviction was final before Edwards, it is hard to see why the remedy should be available on direct review.” Id., at 64-65 (footnote omitted).
“The distinction between direct review and collateral attack may bear some relationship to the recency of the crime; thus, to the extent that the difficulties presented by a new trial may be more severe when the underlying offense is more remote in time, it may be that new trials would tend
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“Of course, it will be less burdensome in the aggregate to apply [Batson] only to cases pending when [Batson] was decided than to give it full retroactive effect; by the same token, it would be less burdensome to apply [Batson] retroactively to all cases involving defendants whose last names begin with the letter ‘S’ than to make the decision fully retroactive. The majority obviously would not countenance the latter course, but its failure to identify any truly relevant distinction between cases on direct appeal and cases raising collateral challenges makes the rule it announces equally indefensible.” Shea v. Louisiana,470 U. S., at 64, n. 1 (White, J., dissenting).
Dissenting Opinion
dissenting.
As I stated in my dissenting opinion in Shea v. Louisiana,