*1 v. KENTUCKY GRIFFITH January 1987* Argued 1986 Decided No. 85-5221. October 85-5731, on certiorari *Together No. Brown v. United the Tenth Circuit. Appeals Court of the United States *2 J., opinion Blackmun, Court, delivered the in which BRENNAN, JJ., joined. Powell, MARSHALL,Powell, Stevens, J., and Scalia, concurring opinion, filed a post, p. J., 328. Rehnquist, C. filed a dissent- ing opinion, post, p. J., White, dissenting opinion, filed a in which J., O’ConnoR, J., joined, Rehnquist, C. post, p. 329. Aprile argued petitioner II
J. Vincent the cause for Larry No. him 85-5221. With on the brief were H. Mar- argued shall and JoAnne M. Vanish. Fred Haddad petitioner cause and filed a brief for in No. 85-5731. Richwalsky, Attorney Paul Jr., W. Assistant General of Kentucky, argued respondent the cause for in No. 85-5221. Armstrong, Attorney himWith on the brief were David L. Attorney General, Martin, and David K. Assistant General. Deputy Bryson argued Solicitor General the cause for the him States. With on the brief were Solicitor Gen Attorney Roy Fried, eral Assistant Trott, General T. Englert, Jr.† Chambers,
† Ralston, Julius LeVonne Stephen Charles and Steven L. Legal Fund, Winter filed a brief for the NAACP Defense & Educational Inc., urging et al. as amici curiae reversal both cases. Frances Baker Jack filed a brief for the National Association of Criminal Lawyers, Inc., Defense as amicus curiae in both cases.
Briefs of amici curiae No. 85-5221 were filed for the State North by Lacy Thornburg, Attorney Carolina et al. H. General of North Caro- lina, Byers, Special Deputy H. Attorney General, Joan Charles A. Grad- dick, Attorney Alabama, Corbin, Attorney General of Robert K. General Arizona, Clark, Attorney Arkansas, John Steven General John I. Kelly, Attorney Connecticut, Chief State’s Oberly, Attorney Charles M. opinion of the Court. delivered Blackmun Justice the retro- federal, state and one concern cases, These one Kentucky, application spective S. 79 of Batson v. 476 U. (1986). Batson, this Court ruled that de- 96-98,
In atS., prima establish facie in a criminal trial could fendant state the Fourteenth violative of case racial discrimination peremptory prosecution’s use Amendment, on the based challenges from the of the defendant’s race to strike members prima jury made the that, once the defendant had venire, and showing, prosecution to come the burden shifted to facie challenges. explanation with a neutral for those forward appli- present ruling is we consider whether that *3 litigation pending on review cable direct state or federal yet final .Batson We answer or not when was decided. question in the affirmative.
I Lamont a Griffith, A. No. Petitioner Randall 85-5221. person, of in the Jef- black was indicted Circuit Court (the tried), County, Ky. where Batson was ferson same court first-degree robbery, by taking, charges of theft unlawful Watanabe, K. A. Corinne Delaware, Attorney of Ha- General of General Pearson, Hartigan, Linley F. E. waii, Attorney Illinois, Neil of General Miller, Iowa, Thomas J. Indiana, Attorney of Attorney General of General Guste, Jr., Stephan, Attorney Robert T. William J. Kansas, General of Sachs, Stephen H. Attorney Attorney General of General of Pittman, Edwin William L. Maryland, Mississippi, Attorney General of Webster, Turpén, L. Missouri, Attorney Michael Attorney General of Gen- Medlock, Carolina, Travis Oklahoma, Attorney eral of General of South Mattox, Cody, Attorney W. J. Jim Tennessee, Michael Attor- General of Wilkinson, of L. Texas, Attorney Utah, David ney General of General McClintock, Mary Terry, Attorney Archie Sue G. Virginia, General of and Lawyers’ for Attorney Wyoming; General of for the Committee Civil Schmitt, Sullivan, R. by Barry Marshall Harold J. Rights under Law Redlich, Robinson, Robertson, Tyler, L. Jr., James Norman William and Winston; Judith A. Legal for and Defender Associa- and the National Aid by Patricia Unsinn. tion felony degree. being persistent offender the second a
and day prosecution App. trial, 2. the first of and defense On attorneys jury voir dire examination of the venire conducted peremptory challenges.1 prosecu- exercised their The and challenges to of used four of its allotted strike four tion five jurors. eight prospective five The defense used black prospective jurors. challenges nine to strike white its allotted duplicate jurors who There strikes. The two extra were two duplicate one of was a strikes, remained whom because person, Thus, then were removed random draw.2 black jury. person Id., 12-13. remained on no black expressed Defense counsel concern that Griffith was be request jury. all-white He the court to tried an asked exercising peremptory prosecutor for to state his reasons jurors. challenges against prospective The four black request Id., refused. at 13. then moved Counsel discharge panel, alleging prosecutor’s that the use challenges prospec- peremptory to remove all but one of the jurors tive black constituted violation of Griffith’s Sixth rights. Id., court de- Fourteenth Amendment The guilty jury on the The returned a verdict nied motion. robbery petitioner’s punish- charge first-degree fixed peti- imprisonment.3 jury years’ then found ment at 10 being felony pur- guilty persistent offender, and, tioner *4 dire, of voir simul upon completion parties the Kentucky, 1 In the challenges. side taneously peremptory Each respective their exercise qualified presents jurors the list who have been strikes names from of 9.36(2). Ky. court. Rule Crim. Proc. the strikes to the 2 pe jurors remaining [after on list prospective “If the the number seated, jurors to be the cards remptory challenges] exceeds the number of placed prospective jurors in a box” bearing identifying [are] numbers necessary court at random the number cards and the clerk of the draws Ibid. required by law.” jury reduce to the number “to 3 submitting jury, granted the trial court Grif Before case to acquittal charge of theft request a verdict of on fith’s for directed Tr. taking. 204-206. unlawful §532.080 (1985), Ky. enhanced his Rev. Stat.
suant to imprisonment. years’ sentence Kentucky, unpublished Supreme an Court judgment opinion, conviction. affirmed
memorandum
pros-
rejected petitioner’s
that the
App.
claim
The court
17.
guar-
challenges deprived
peremptory
him of
use of
ecutor’s
protection.
Alabama,
equal
It relied on Swain v.
anteed
(1965),
de-
ruled that a black
where this Court
Equal
of the
Protection
not establish a violation
did
fendant
peremptory
solely
proof
prosecutor’s use of
on
of the
Clause
challenges
jurors
own trial.
at the defendant’s
to strike black
an infer-
however, that
noted,
221-222. The Court
Id., at
purposeful
raised where a
could be
discrimination
ence of
ju-
challenging
engaged
pattern
prosecutor
black
a
had
Kentucky
id.,
223-224. The
rors in a series of cases. See
disposed petitioner’s claim and
concluded that Swain
court
App.
go
“decline[d]
than the Swain court.”
further
it
certiorari,
petition
timely
a writ of
here a
filed
Griffith
pending,
petition
this
decided Batson v.
was
While his
rejected portion
reasoning
supra,
Kentucky,
a
where
Kentucky court had re-
Alabama on which the
of Swain v.
in Allen v.
later,
at 89-96. Two months
lied. 476 U.
(1986)
curiam),
Hardy,
(per
that the
we held
retroactively
applied
ruling
to a case
in Batson
not to be
granted
in Griffith’s
federal habeas review. We
certiorari
question whether
to the
case,
B. No. 85-5731. Willie person, by jury in the United States black was convicted on nar- of Oklahoma District Court for the Western District panels charges. During jury venire selection, two cotics prospec- were six 6 Record 2-10.4 There were assembled. jurors in first venire who were excused prospective The number of constitute a full remaining number insufficient for cause resulted in a petit jury. 9-10. 6 Record *5 jurors Four were excused for in the total venire.
tive black by by other two were excused the cause the court and the challenges. prosecutor’s peremptory Id., De- at 20.5 use of prosecutor’s peremptory objected to the use of fense counsel claiming persons jury, challenges the black from the to strike thereby jury representative petitioner denied a that was community. Id., 20-21. No action was taken re- the at objection. sponse to that jurors being prospective for the second were assembled
As prosecutor jury inquire panel, the called the clerk venire composition At a racial of the additional venire. about the jury deliberating, hearing the there was held later while prosecutor said to the clerk: “We would like that the evidence App. jurors possible.” 51. The black as to have as few prosecu- she remembered the however, that testified, clerk jury.” any get blacks on this comment to be: “Don’t tor’s say not alter on to that she did Id., at 38-39. The clerk went way response prosecutor’s any jury to the selection concludedthat Id., 44-45. The District Court at comment. jury prosecutor’s have to clerk “would contact with id., someone,” at inasmuch dealt with be looked at and prosecutorial category possible miscon- as it fell “into integrity of the affect the id., at that it did not duct,” 46, but jury. court therefore con- Id., 45. The selection necessary jury if con- would not be cluded that a new trial petitioner. Id., victed Appeals Tenth for the Circuit
The United States Court (1985). judgment 2d 912 770 F. conviction. affirmed the pe- prosecutor’s rejected use of claim that It Brown’s jurors, prospective challenges remptory black to exclude jurors in prospective black to the number There is some confusion as record, six there were According venire. to a statement the total Id., petitioner counsel for argument, panels. at 20. At oral the two ap There Arg. 3. Tr. of Oral had been called. Brown stated that five excused jurors were however, black agreement, two pears to be ibid.; 6 Record 20; challenges. prosecutor’s peremptory use App. 14.
320 petitioner’s jury violated clerk, call the with his to
combined jury. impartial right that Brown The court concluded to an petitioner requirement that met Swain’s threshold had not by systematic course of conduct a and intentional must show jurors prosecutor to “case calculated exclude black the It that F. at 914. further concluded 2d, 770 after case.” by prosecutor jury clerk did to the communication the the jurors. pattern systematic suggest exclusion of black a of not prosecutor’s Although action was observed that the court ibid., “improper” condemned,” concluded, “must as and be request prosecutor’s had that the no Court, the District had jury. on the selection of Brown’s effect timely petitioner filed decision, Prior our Batson with to petition granted a for a writ of certiorari. We this Court (1986), again ques- 476 1157 limited to the certiorari, retroactively ruling applies in Batson to a whether the tion pending then on direct review. The case federal conviction argument in set for tandem Griffith’s case.
HHI—I Twenty-one years ago, adopted three-pronged this Court a analysis claims of of new constitutional rules procedure. Walker, Linkletter criminal See 381 U. S. (1965). Map-p Linkletter, Ohio, Court 618 held that (1961),which U. 643 extended the Fourth Amendment S. exclusionary applied rule retro- would be actively to a state conviction that become had final before Mapp explained was decided. that “the Constitu- prohibits requires retrospective nor tion neither effect” a rule, and retro- new constitutional determination of activity depend “weighting] on must the merits demerits atS., 629. The Court’s decision not each case.” apply Mapp retroactively purpose “the was based on [previous] placed upon Mapp the reliance rule; doctrine; justice retro- and the effect on administration Mapp” spective application at 636. also U. See (1967)(retroactivity Denno, de- Stovall pends “(a) purpose standards, to be served the new (b) extent of the reliance law enforcement authorities (c) old the effect on the administration standards, on the standards”). application justice of a retroactive of the new Shortly in Linkletter, after decision the Court held analysis three-pronged applied that the both convictions final6 that were and to convictions on direct review. Jersey, (1966); Johnson v. New S. Sto *7 Denno, S., vall v. 388 U. at 300. In the latter case, purposes applying concluded for fac that, Court of three analysis, justified “no distinction between tors of is con- stages final . . and victions now . convictions at various Ibid. Thus, trial and direct review.” a number new rules retroactively procedure apply held of criminal were not to pending to final or to cases on direct review. either cases g., supra; Denno, Woods, e. Stovall v. v. 392 See, DeStefano (1968); States, n. 2 Desist v. 394 631, 635, United U. S. (1975) (1969); 31 Daniel v. 420 U. S. 253-254 244, curiam). (per (1982), Johnson, 537 how-
In v. 457 U. S. United States we case, the Court course.7 In that reviewed ever, shifted length history decisions in the at some of the Court’s in concluded, area of the words Justice ’” “ ‘ “[RJetroactivity” rethought. Id., 548 must be at Harlan: (dissent- (quoting States, Desist 394 at 258 S., v. United Specifically, ing opinion)). we concluded that retroactiv- 6 a conviction been By “final,” judgment a case which has we mean exhausted, petition time for a rendered, availability appeal and the United finally for certiorari denied. elapsed petition a for certiorari or Johnson, (1982) Linkletter v. 542, (citing 537, n. States 457 U. S. (1965)). Walker, 618, 622, 381 U. S. n. 5 Johnson, the Fourth Amend United States In held that the Court York, New pro Payton 445 U. S. ruling ment announced entry warrantless, into a sus hibiting police making from a nonconsensual arrest, felony applied pect’s making home for the a purpose of routine retroactively pending appeal. to a direct case analysis final must be ity that have become for convictions analysis not final that are for convictions from different that, observed is issued.8 We new decision time the at the opinions separate Linkletter, various since number of all minimum, at a that, “have asserted the Court Members appeal pending at still on direct cases were whose defendants law-changing to in- should be entitled decision the time of (collecting and n. S., rule.” 457 U. the new voke distinguishing opinions).9 between The rationale apply- and for not, those that have final and have become that ing category, retroactively in the latter to cases rules new length by explained in Desist Harlan v. United Justice Mackey (dissenting opinion), at 256 States, (1971) (opinion concur- v. United ring judgment). Johnson, we em- States v. analysis significant comprehensive extent the to a braced opinions. presented Harlan in those Justice apply in ours, and now failure to view, Harlan’s In Justice newly rule to criminal cases constitutional declared adjudi-| of constitutional violates basic norms review on direct adjudi-* principle that this a settled First, cation. *8 only Const., See U. S. “cases” and “controversies.” cates promulgate §2. legislature, not we do III, Art. Unlike procedure criminal on broad of constitutional new rules judicial requires that we nature of review Rather, the basis. usually adjudicate specific becomes cases, and each case after we have of a new rule. But for announcement vehicle 8 the area of civil noted in Johnson that our review did not address We S., governed continues to be retroactivity. 457 at 563. That area U. Huson, Co. v. 97, 404 Chevron Oil in U. S. by announced the standard (1971). 106-107 (1980) Brown others, 323, See, among J., J., joined, concurring judgment); whom Stevens, (Powell, (1979) Missouri, J., concurring in S. Harlin 439 U. (Powell, Carolina, (1977) (MAR v. North judgment); Hankerson id., (POWELL, J., concurring in SHALL, J., concurring judgment); at 246 judgment). integrity judi- selected, a new rule in the case of
decided requires apply that we that rule to all similar cial review pending on review. Justice Harlan cases direct observed: all
“If we do resolve cases before us on direct re- not understanding light governing of view in our best con- of why principles, it is difficult to see we stitutional should adjudicate any truth, case at all. ... so Court’s disregard adjudicat- power current law assertion already ing that have run cases before us not the full simply appellate quite is an review, course of assertion adjudication function not one of that our constitutional is legislation.” Mackey States, v. United effect but judgment). (opinion concurring in S., 401 U. at 679 practical course, cannot hear each case matter, As a we apply pending the new rule. But we on direct review by instructing judicial responsibility the lower fulfill our apply retroactively yet to cases new rule courts to judicial precludes review that Thus, it is the nature final. “[s]imply fishing appel- one case the stream of from us from pronouncing using a vehicle for new con- review, it as late permitting of similar then a stream standards, and stitutional subsequently new flow unaffected rule.” Johnson, S., 546-547, 457 U. Ibid. See United States prin- application violates the Second, selective new rules treating similarly ciple the same. See situated defendants (Harlan, S., J., 258-259 v. United Desist dissenting). pointed Johnson, out States v. As we problem applying new rules to cases with not inequity actual that results when review “the direct many similarly situated chooses which of defendants beneficiary” of a new rule. be the chance should *9 Although original). (emphasis the Court had 556, n. at applying inequity new time rules this for a tolerated retroactively we noted: “The time review, on direct an end.” Ibid. has come to for toleration acceptance Johnson, In our United States Justice holding “subject [certain led to the Harlan’s views construing exceptions], a of this decision Fourth retroactively applied to all Amendment is to be convictions yet the decision was ren- that were not final at the time exceptions Id., at 562. The to which we referred dered.” categories in that ex- related to three which we concluded isting precedent established threshold tests for the retro- activity analysis. categories, In two of these the new rule (1) retroactively already applied: when decision this nothing apply precedent more than settled to dif- Court did (2) id., situations, factual see at and when the new ferent ruling authority trial court was that a lacked to convict a place. id., in the first at 550.10 criminal defendant See category The third a new rule is a “clear break” —where past precedent at in these one issue cases. We —is Johnson, S., it in States v. 457 U. at described 549-550: expressly
“[WJhere the Court has declared a rule of past,’ procedure to be ‘a clear break with the criminal States, in- S., Desist v. United 394 U. it almost variably gone newly princi- has find such a minted ple Peltier, nonretroactive. United States (1975) dissenting) 531, 547, n. 5 (Brennan, J., cases). (collecting type case, this . . . the traits particular constitutional rule have been less crit- express threshold determination ical than the Court’s interpretatio[n] that the ‘“new” constitutional ... so change[s] prospectivity arguably the law that proper course,’ Williams v. United opinion). (plurality Once the Court has found that unanticipated, the new rule was the second and third —reliance enforcement authorities Stovall factors law automatically applied categories, in which new rules are 10 These two any way by today. retroactively, are not affected our decision
325 on the and effect old standards on the administration of justice application of a retroactive of the new rule—have virtually compelled finding nonretroactivity. a See, g., Mayden, e. S., Gosa v. at 672-673, 682-685 (plurality opinion); Michigan Payne, 412 v. U. S., at 55-57.” recognized may
Thus, we what be termed a “clear break exception.” exception, Under this a new constitutional rule applied retroactively, was not even to cases on direct review, explicitly past precedent if the new rule a overruled of this disapproved practice arguably Court, or a this Court had prior longstanding prac- sanctioned in or cases, overturned a uniformly approved. Id., tice that lower courts had at 551. ruling Payton The Fourth Amendment in New York, 445 (1980), U. S. 573 with which United States v. Johnson was any concerned, was not a clear break of these senses, retroactivity “effectively preordained” thus its status was not by falling exception. within “clear break” 457 S.,U. 553-554. (1985), applied
In Shea U. S. 51 we United States v. Johnson and held that the Fifth Amendment (1981), Arizona, rule announced Edwards U. S. 477 prohibited suspect requested which had use, after coun- by police-instigated sel, of a confession obtained interro- gation suspect’s attorney’s being present, without the was retroactive to cases on direct review when Edwards de- Using rationale, cided. Johnson’s we concluded there was nothing suggested about a Fourth Amendment rule that given greater be should retroactive effect than a Fifth Amendment rule. addition, at 59. as Johnson, United States v. we concluded that rule the new did exception. previous not fall within the “clear break” Term, Stumes, Solem v. explicitly recognized had that Edwards was “not the automatically
sort of ‘clear break’ case that is almost non- Although, expressed Shea, some doubt' we retroactive.”11 rule for cases” in merits of different to “the as past, explained is a clear break with the we new rule which a question no concerned with the have need be that “we *11 n. S., here.” I—II—I h—I question
The a rule should whether different past, apply a a with the new rule is “clear break” how- when squarely present In Allen us the cases. ever, is before Hardy, case which was here on federal a explicit that the rule Batson “is an we said habeas, prior precedent” because “overruled break substantial portion [a] at 258.12 We therefore Swain.” maintaining a “clear the rationale for break” now reexamine exception general proposition governing rules to the that new pending procedure on should be retroactive criminal persuaded For the same reasons that us in direct review. adopt v. Johnson different conclusions as United States already direct from those that to convictions on review hadj engrafted exception based| final, we conclude that an become solely particular upon the new rule the characteristics of adopted by inappropriate. the Court is principle disregard cur- the that
First, this Court does adjudicates pending it on di- law, rent when it a case before specific applies regardless characteristics review, rect of the recognized particular new Court rule announced. new is v. Johnson that the fact that a rule in United States primarily past it im- the because clear break with relevant by plicates of reliance the second and third Stovall factors on officials and the burden the administra- law enforcement v. Stumes the Court concluded that the rule announced in Solem had final. Edwards was not retroactive conviction that become the Batson ruling that was not a “clear argues Petitioner Griffith principle it did not announce a new of con past with the because break” Equal law under the Protection Clause. Whatever merits stitutional Hardy. Allen be, argument might it is foreclosed of that application. justice imposed But even tion of retroactive deciding may whether convic- if these factors be useful already have final should receive the bene- tions that become exception, the “clear derived from rule, fit of a new break” precisely type reintroduces of case- factors, the Stovall rejected inappropriate specificanalysis Harlan as that Justice direct review. for cases exception creates the Second, the use of a “clear break” similarly problem treating situated defendants of not same petitioner in Batson Batson, same. James Kirkland petitioner Kentucky, Lamont Griffith, and Randall Kentucky present tried Jefferson Circuit case, were apart.13 pros approximately three months The same challenges peremptory at the trials. It exercised ecutor solely process judicial the fortuities of determined initially plenary chose to hear on case this Court review. *12 pointed “hardly comports has out that it Powell Justice justice ‘administration of with an even the ideal of with beneficiary lucky chance individual hand,’” when “one —the announcing chosen as the occasion for case was whose application, principle enjoys while others retroactive new — adjudicated similarly have their claims under the old situated Carolina, 432 247 233, Hankerson v. North U. S. doctrine.” (1977) quoting concurring judgment), (opinion in Desist v. (Douglas, dissenting). J., 255 States, S., 394 U. United (1973) (Mar Payne, Michigan 60 47, also v. (“Different dissenting) treatment of two cases is J., shall, only justified in when the cases differ under our Constitution treatment”). respect the different The fact relevant to some past may a clear break with the the new rule constitute that only bearing inequity that results” when no on the “actual has Kentucky, Batson App. in February in 1984. See Batson was tried May 1985, 84-6263, was tried in of that p. No. 1. Petitioner Griffith T.O. 85-5221, And, may worth, peti p. in for what it be year. App. No. 1. 85-5731, p. 2. App. in June No. tioner Brown was tried Oklahoma many similarly receives the bene situated defendants one Johnson, rule. States fit of the new omitted). (emphasis n. 16 for the conduct of crimi- hold that a new rule We therefore retroactively applied prosecutions cases, to is all nal to be yet final, or not on direct review federal, state or exception rule for cases which new constitutes no with past. Accordingly, 85-5221, in No. a “clear break” with the Kentucky judgment Supreme reversed, is proceed- court further for the case is remanded opinion. ings this 85-5731, No. not inconsistent with Appeals judgment the United States Court of case reversed, and the is remanded to that Tenth Circuit is proceedings opinion. this for further consistent with court
It is so ordered. Powell, concurring. Justice important step join opinion, an
I
the Court’s
and consider it
applying
ending the
that has
from
toward
confusion
resulted
case-by-case
Walker,
Linkletter
329 curring judgment); Stumes, 638, 465 S. 651 U. in Solem (1984)(concurring judgment). in retroactivity today only involve we decide
As the cases necessary pending for review, it was not on direct of decisions corpus respect opinion express to habeas an with the Court to opinion, question is care petitions. this I read the Court’s As hoped squarely presented. fully open It is be it is left until adopt Harlan view of then will that the Court Mackey petitions. seeking on habeas relief cases supra, view, habeas at 681-695. Under States, according judged generally to the constitu petitions should be existing at the time of conviction. tional standards Rehnquist, dissenting. Justice Chief my dissenting opinion in Shea v. I stated As aspects (1985), willing adopt I am both 61 470 U. S. retroactivity propounded Har- approach Justice Mackey opinion 401 U. S. v. United lan in his (1971). new constitutional view, Harlan’s In Justice apply prosecutions retro- governing should criminal rules appeal the rule actively when on direct for apply exceptions, should narrow announced, and, with challenging proceedings become convictions that in collateral today majority The the rule is announced. final before join approach. only portion adopts I therefore of this Jus- agreeing him under the that, dissent, tice White’s majority retroactivity jurisprudence, the present of our state Hardy, in Allen v. rejecting cited reasons erred Kentucky, (1986), making Batson v. S. (1986), nonretroactive. Justice Jus- Chief White, with whom Justice dissenting. tice O’Connor join, announced that the rule this decided
Last Term apply Kentucky, should not Batson v. final before convictions that became review of collateral Hardy, 478 Allen v. in Batson was announced. decision *14 (1986). judgment, reaching this the Court U. S. traditionally weighed it has considered the three factors that proce- retroactivity deciding a new rule of criminal the “‘“(a) purpose standards, to be served new dure: (b) by law enforcement authorities extent of the reliance (c) the effect on administration standards, on the old justice application of the new stand- of a retroactive (quoting Stumes, Id., ards.””’ Solem quoting Denno, turn Stovall v. S. 638, 643 (1967)). suggested un- that this test is 293, 297 No Justice why question, is the Court feels con- then, The workable. to fashion a different rule for cases on direct review. strained are not and I find them as new, The reasons the Court offers today past: unpersuasive I in the as have purportedly majority’s underlie the “Two concerns The first is that is somehow an decision. judicial decisionmaking, attribute of and that essential announces a new rule and declines to when the Court judicial give it has abandoned the effect, it retroactive legislature the function of a to use or, role and assumed — describing prob- employed in the term Justice Harlan ‘super-legislature.’ States, Desist v. United lem, (1969)(Harlan, dissenting). The sec- J., unrelated) (and completely concern is fairness. ond not majority reasons, is court, It the business of accordingly, treat like cases it is unfair for one alike; litigant a new to receive the benefit of decision when identically situated, is denied the another, same bene- majority’s concerns are no doubt laudable, fit. but escape they the conclusion that the I cannot rule have spawned makes no sense. avoiding known as
“As a means of
what has come to be
super-legislature problem,
the
majority wholly inadequate.
the rule announced
the Court is
True,
legislature, super
But I
otherwise.
cannot be a
or
usurpa-
supposed
concerns about
should think that
*15
generally go
authority by
legislative
this Court
tion of
decisions than to
of the Court’s
the substance
more to
Surely
they
those who
retroactive.
are
whether or
overstepped the bounds of its
has
that the Court
believe
announcing
authority
con-
legitimate
a new rule of
holding
in a decision
find little solace
law will
stitutional
inis
some sense
If a decision
rule retroactive.
the new
gesture-
making
illegitimate,
useless
is a
it retroactive
the decision
hand,
other
If, on the
that will fool no one.
purposes
salutary
are ill-served
but one whose
one,
is a
retroactivity may
application,
be worse
retroactive
sys-
justice
imposing costs on the criminal
useless,
than
by any percep-
uncompensated
likely
will
be
tem that
‘judiciallegitimacy.’
gains in
tible
majority’s
the interest
rule serves
“The claim that
majority
Although
equally
hollow.
fairness is
apply
finds
to one case on di-
a new rule
to
it intolerable
willing
perfectly
appeal
it is
another,
not to
but
rect
seeking
disparate
di-
of defendants
treatment
tolerate
attacking
prisoners
convictions
of their
rect review
proceedings.
IAs have
in collateral
their convictions
[457
v.]
[United
Johnson,
see
States
before,
stated
(1982)]
dissenting);
Williams
J.,
537, 566-568
(White,
(1971) (plurality
656-659
401 U. S.
distinguish
attempt
opinion),
me that the
it seems to
purposes
challenges for
and collateral
direct
between
majority’s
misguided.
rule,
Under
is
may
subject
identically
be
defendants
situated
otherwise
just
depending
how
rules,
constitutional
different
how
ago
occurred and
long
conduct
now-unconstitutional
sys-
justice
through
proceed
quickly
the criminal
disparity
in kind from that
different
is no
tem.
new constitutional
of a
the benefit
occurs when
which
retroactively
defendant whose
to the
afforded
rule
new
the Court’s
others;
no
but to
it is announced
case
except
nothing
equalizes
approach
the numbers of de-
disparately treated classes.” Shea
fendants within
(1985) (White,
J.,
62-64
v.
dissenting).1
the fact
also overlooks
invocation of fairness
The Court’s
fortuity
Alabama,
that we overruled Swain
that it is a
re-
came to us on direct
in a case that
S.
easily
granted
and de-
have
certiorari
could as
view. We
Allen
review, such as
in a case on collateral
the matter
cided
treating
principle
Hardy.
like cases
case,
In that
*16
review receive
that all cases on collateral
would dictate
alike
I trust that the Court would
of the new rule.
the benefit
dog; good judgment
letting
wag
go
the
in
the tail
that far
principle
hope
the
adherence to
out over blind
would—I —win
today
treating
if
the Court acts as
like cáses alike. Yet
treatment
address the differential
not in these cases
1The Court does
my
the
I adhere to
view that
collateral review.
cases on direct and
Johnson,
(1982),
and
457 U. S.
in
States
Court’s decisions United
satisfactory
justification
provide
no
Shea v.
As I stated
Shea:
the two classes of cases.
distinguishing between
for
direct review and
majority recognizes that the distinction between
“The
by appealing
justifies
treatment
problematic, but
its differential
habeas is
S.,]
60,
finality,’
at
on those who
[470
draw ‘the curtain of
to the need to
appeal at the
enough
exhausted their last direct
unfortunate
to have
were
(1981),]
Arizona,
decided. Yet the
remedy acceptable when it is State more disruption attendant a collateral attack. The when it is the result of than imposed di vary depending on whether it is on upon remedy does not remedy granted habeas; accordingly, if must be to de rect review or deny prisoners appeal, strong reason to to direct there is no fendants on collaterally. Conversely, if it serves no worth attacking their convictions remedy whose conviction was grant the to a defendant purpose while Edwards, remedy why the should be available it is hard to see final before omitted). (footnote Id., at 64-65 review.” on direct to follow a mechanical notion of fairness no choice but it has pausing principles to consider “sound of decision- without making,” Denno, S.,
Stovall v.
388 U.
at
approach
foregoing
I
reasons,
would adhere
For
supra,
recognize
no
Denno,
out
Stovall v.
set
retroactivity purposes
direct
for
between cases on
distinction
ap-
if I
some
and collateral review. But even
saw
merit
appeal,
approach
plying
cases on
I
direct
would
Harlan
exception
preserve
“clear
rec-
breaks”
nonetheless
(1982).
ognized
Johnson,
States v.
The Court has *17 precedent,” explicit prior and and substantial break with “an through- judges, “prosecutors, appellate trial and courts systems justifiably on have relied our state and federal out ” supra, Hardy, Allen v. the standard of Swain. Hardy gave in con- Allen v. for the Court The reasons that application cluding on the Batson rule that “retroactive disrupt seriously final convictions would collateral review equally justice,” apply administration of application on direct review.2 of the Batson rule retroactive to may bear review collateral attack “The between direct distinction thus, crime; that the recency to extent relationship to the some may the under by a be more severe when presented new trial difficulties tend time, may new trials would be that more remote lying offense is justifiable majority penalizing it is reliance knows that disruption doing causing Swain, and so substantial justice; yet majority if it has acts as the administration principled a far true; alternative. This is not it would be no apply principled, test and no less to the Stovall rule, sounder re- direct and collateral to determine on both respectfully I view. dissent. involving somewhat more burdensome habeas eases than cases
to be However, relationship di- appeal. on direct this no means reversals justice rect, speed progress through the criminal for the with which cases Thus, truly system may vary widely. if concerned with treat- the Court is alike, precisely accomplish purpose its far more ing like cases it could only appropriately conduct of re- by applying new constitutional rules assume, however, argue explicit one would for an vintage. I that no cent ‘5-year-rule,’ example. [Batson] course, aggregate apply in the it will be less burdensome
“Of [Batson] only give was decided than to it full retro- to cases when token, apply effect; by it would be less burdensome to active the same involving whose [Batson] retroactively to all cases defendants last names fully make the decision retroactive. The begin with the letter ‘S’than to course, obviously latter but its failure majority would not countenance the appeal identify any truly distinction between cases on direct relevant challenges equally makes the rule it announces raising collateral *18 J., n. 1 (White, indefensible.” Shea dissenting).