A watershed moment?

Photographer: Mark Wilson/Getty Images

Juvenile Justice Ruling Is Landmark for Two Reasons

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Monday's landmark decision by the U.S. Supreme Court to make retroactive its 2012 prohibition on mandatory life sentences without parole for juvenile offenders is worthy of celebration. The court clarified its retroactivity jurisprudence, holding for the first time that the Constitution demands that new substantive constitutional rules be applied to people convicted before the rules were announced. And the justices were correct to apply their newly announced principle to the case of mandatory sentences of life without parole for juveniles.

But at the same time, the court’s bold decision, written by Justice Anthony Kennedy, underscores the depth of an anomaly that it left unchanged: When the court announces a new procedural rule mandated by the Constitution, those convicted under the old rule stay in prison and are unaffected by the new judgment. (A new substantive rule would state, for example, that homosexuality can't be criminalized; a procedural rule would be, for example, that you're entitled to a lawyer who doesn't fall asleep at trial.) That's morally and constitutionally troubling -- and the court’s new decision makes the distinction between substantive and procedural rules seem even worse than it was before.

Although the somewhat unwieldy newspaper headline for the decision is that mandatory life without parole for juveniles is retroactively unconstitutional, the more important part of the court's opinion was actually the part where it decided it had the authority to consider the case in the first place.

The reason is a bit arcane, but it’s worth knowing. In short, until Monday, it wasn’t clear that the court’s retroactive constitutional judgments applied to people convicted in state courts as well as than federal ones. (The dissenters, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, think that such judgments shouldn't be applied to state convicts.)

In other words, when the court announced a new rule that made certain crimes or sentences violations of the Constitution, it was possible for states to leave people convicted of those crimes before the new rule went into effect right where they were, in prison. The reason for this uncertainty was partly that the court’s leading decision on retroactivity -- a plurality opinion by Justice Sandra Day O'Connor in a 1989 case called Teague v. Lane -- involved a habeas review before a federal court.

But the main reason it wasn’t clear whether constitutional retroactivity included state convicts was that the court hasn't been very clear on why retroactivity applies sometimes but not other times.

In her Teague opinion, based on the ideas of Justice John Marshall Harlan, O'Connor began with the thought that retroactivity was generally not appropriate for reviewing criminal cases after a conviction was final and all appeals had been exhausted. She considered the process for reviewing decisions after the fact, known as collateral review or habeas corpus review, as highly distinct from the ordinary appellate process.

Harlan was the court’s archetypal Burkean conservative, and he thought that no big changes should happen after a conviction was final. In fact, he (and O'Connor after him) emphasized the value of “finality” -- once you're convicted, that's it. No more bites of the apple -- even if your trial was infected by constitutional error.

O’Connor took from Harlan two exceptions, expressed almost as afterthoughts, to the rule against retroactivity. One exception was if the court's new constitutional rule defined certain conduct as not being criminal under the Constitution. By extension, this notion has also come to include punishments that may not constitutionally be applied to persons of a certain status -- such as juveniles.

The second exception was for new rules of criminal procedure considered so basic that they must be “implicit in the concept of ordered liberty.” The court has come to call such rules “watershed rules” of criminal procedure. If the court announces such a rule, it applies retroactively.

In Monday's opinion, Kennedy took the first category of exceptions and clarified it. Expressing his preferred ideal of the Supreme Court's judicial supremacy, Kennedy said that when a new substantial constitutional rule has been announced, any law inconsistent with it is rendered null and void. Anyone convicted under such a rule cannot still be imprisoned or punished according to it -- because it is no law at all.

This logic led Kennedy to hold that state courts, as well as federal ones, would be bound retroactively, because state courts are just as bound by the Supreme Court's interpretation of the Constitution as are federal courts. And Kennedy went on to say that mandatory life without parole for juveniles was such a substantive rule, because it created a new category of people -- juveniles -- who, based upon their status, cannot be held forever without the possibility of parole. The practical solution, he said, was for states to give such prisoners the chance of parole now.

All this was clarifying and convincing -- but it raises a deep and hard question about why ordinary procedural constitutional violations shouldn’t apply retroactively, too. For O’Connor, following Harlan, the reason was that the purpose of collateral review wasn't to right all constitutional wrongs, and that the value of finality was very high.

But by Kennedy’s account, an unconstitutional criminal procedure used to convict a defendant should be just as null and void as a substantive rule of law that's been held unconstitutional. Ordinarily, there’s no hierarchy of unconstitutionality. A law normally can’t be a little bit unconstitutional any more than a person can be a little bit pregnant.

Kennedy tried to avoid this contradiction by saying that procedural rules are “designed to enhance the accuracy of a conviction or sentence.” When such a rule has been violated, he said, that merely raises the possibility “that someone convicted with use of the invalidated procedure might have been acquitted otherwise.”

But if that were really so, then procedural rules shouldn't be described by the Supreme Court as mandated by the Constitution. A conviction based on an unconstitutional procedure should be just as invalid as one based on an unconstitutional law.

(Corrects description of the Supreme Court's 1989 decision on retroactivity in fifth paragraph of article published Jan. 25. It was a state prisoner, not a federal prisoner, at issue; however, the review was before the federal courts.)
  1. The younger, not his 19-century predecessor of the same name.

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To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net