The Changing Face of Retroactivity

Teague v. Lane marked, in the eyes of many, an attempt by the United States Supreme Court to judicially limit the scope of federal habeas corpus review. In Teague, a plurality of the Court held that new rules of criminal procedure do not apply retroactively to cases which have already become final on direct review at the time the new rule is decided. Thus, in most cases, a petitioner in collateral proceedings will not receive the benefit of any new rules decided after his conviction is affirmed on direct appeal and the United States Supreme Court denies certiorari. Moreover, a plurality of the Court endorsed an approach to retroactivity analysis which would treat retroactivity determinations as a threshold matter. Under this approach, a court would first decide whether the rule required to grant a petitioner relief applied retroactively. Only after a court decided that such a rule would apply retroactively would it determine whether the Constitution required such a rule. A plurality of the Supreme Court, in an opinion written by Justice O\u27Connor, concluded that the question of whether a decision [announcing a new rule of law should] be given prospective or retroactive effect should be faced at the time of [that] decision. The Court stated that the retroactivity of any decision is properly treated as a threshold question. The plurality reasoned that retroactivity should be treated as a threshold issue because once a new rule is applied to the defendant in the case announcing the rule, even-handed justice requires that it be applied retroactively to all who are similarly situated. Therefore, the plurality concluded that the more principled way to handle the question of retroactivity was for the Court to simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated. In sum, the Court stated, “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” In Penry v. Lynaugh a majority of the Court extended the Teague retroactivity doctrine to capital proceedings. Teague leaves much of the [nonretroactivity] restriction\u27s content in doubt. In particular, Teague leaves the following five questions unanswered: (1) What is the status of retroactivity as a threshold question? (2) What, precisely, is the scope of a new rule? (3) What are the definitions and scope of the two exceptions to the general rule of nonretroactivity? (4) Who will bear the burden of both raising and proving the defense of nonretroactivity? and (5) Will the Teague rule apply to the advantage of a petitioner when a new constitutional norm constricts available relief? In this Article, each of these areas will be addressed in turn