Broken rules are meant to be fixed.

Photographer: Daniel Acker/Bloomberg

When the Law Gives Everybody But You a Break

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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The most painful letter I ever received was from my first client, then incarcerated at a federal prison in the former Olympic village of Lake Placid, New York. I’d represented him on appeal, arguing that his sentence under the federal guidelines had been imposed unconstitutionally, because the fact of his earlier convictions hadn’t been argued before the jury and proved beyond reasonable doubt, just established by the judge after trial. The U.S. Court of Appeals for the 1st Circuit shot us down: The court, in an opinion by Judge Sandra Lynch, said though the logic of Supreme Court decisions pointed our way, the high court hadn’t yet expressly reached this constitutional conclusion.

His agonizing letter came after the Supreme Court, in the companion cases of U.S. v. Booker and U.S. v. Fanfan, reached the conclusion that we had argued to the 1st Circuit a few years before. My erstwhile client, an intelligent man who had been reading the court’s opinions, hoped he could have his sentence reduced now that our view of the Constitution had prevailed. What made it so painful was that while our principle had won, his sentence would be unaffected: The court had not made its judgment retroactive.

I thought of my client on Friday when the Supreme Court agreed to take up the question of retroactivity in connection with its holding that juvenile offenders may not constitutionally be sentenced to life without parole. The doctrine the Supreme Court applies when it ordinarily declines to make its decisions retroactive to convicted defendants is one of the strangest and most horrifying doctrines in the entire body of constitutional law. It’s almost impossible to justify from the standpoint of the Supreme Court’s job to interpret the Constitution. Its rationale is based entirely on practicality. Unfortunately, that practicality enables our system to keep people jailed even when the courts admit that their incarceration violates the Constitution.

Upset? Confused? Remember that the Constitution itself never says the Supreme Court has the authority to strike down a law as unconstitutional. That power comes from the court’s own theory, announced in the landmark case of Marbury v. Madison, that because the judiciary has the power and duty to say what the law is, it has the corresponding power to announce the definitive meaning of the Constitution. According to the Marbury approach, the courts have no choice but to decide on the meaning of the Constitution because they must apply the Constitution to the cases before them.

If this is true, you’d think that when the court decides a case, it’s deciding the true meaning of the Constitution. And you'd further think that the true meaning of the Constitution ought to apply to everybody.

But in the 1989 case Teague v. Lane, Justice Sandra Day O’Connor, writing for a plurality of the justices, decided otherwise. When the Supreme Court announces a new constitutional rule, she held, that rule doesn’t apply retroactively to everyone convicted under the old rule, unless one of two exceptions applies.

The first exception is if the rule says that certain conduct can’t be considered a crime. An example would be the Supreme Court’s decision in the 2002 case of Lawrence v. Texas that sex between consenting gay people can’t be criminalized. Had anyone been in prison for violating an anti-sodomy statute, he or she would have to have been freed after the decision was announced. Needless to say, constitutional decisions placing certain conduct “beyond the power of the criminal law-making authority to proscribe” are rare, once-in-a-generation kinds of things.

The second exception is if the new rule establishes procedures so basic that they are “implicit in the concept of ordered liberty.” This is an exceptionally high standard, derived from an old principle that Justice Benjamin Cardozo developed to define due process of law. The Supreme Court rarely finds a new rule to be quite so basic, although it may do so in the case of its ban on life without parole for juveniles.

Any other new constitutional rule flunks the test, and applies only to defendants whose trials or direct appeals are under way when the decision was reached. Justice O’Connor said the rationale was that criminal convictions are final and that the justices were showing respect for lower courts, including state courts. In essence, she didn’t want every constitutional decision by the Supreme Court to lead to lots of new cases that would free those convicted under the old rules.

The best thing you can say about the Teague rule is that it makes it easier for the Supreme Court to expand constitutional rights, by freeing the justices of the worry that the prison doors would be flung open each time they announced a new one.

But this gain is small compared with the stunning cost to the Marbury theory of the court’s rights and duties. It calls into question the basic idea that the courts are announcing the meaning of the Constitution. In its place, it leaves a vision of functionaries, judicial bean counters who tinker with the system instead of identifying the rights that the Constitution confers. And, as a matter of principle, it should be an outrage that citizens remain imprisoned on the basis of procedures that the court has held unconstitutional.

Here’s hoping the court finds that the ban on life without parole for juveniles is so fundamental that it should be applied retroactively. But what’s broken here is the doctrine of nonretroactivity itself. If the Constitution establishes certain rights, it should establish them for everybody. When you happen to have been convicted shouldn’t matter.

  1. The court in Marbury never precisely said that the other branches of government must defer to its interpretation of the Constitution, but this is a plausible reading of the case -- and more important, it's one the Supreme Court ultimately adopted.

  2. Yes, there's a body of law on what counts as a “new” rule. You don't want to know about it -- at least not today.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net