Opinion analysis: A lopsided majority for full retroactivity
on Apr 19, 2016 at 11:56 am
Yesterday’s opinion in Welch v. United States was not, after oral argument, much of a surprise. The Court decided, by a vote of seven to one, that last Term’s decision in Johnson v. United States, which struck down as unconstitutionally vague a part of a federal sentencing enhancement statute, should apply “retroactively” even to cases that were final before Johnson was decided. And by expediting the decision – issuing the opinion only eighteen days after oral argument and ignoring procedural twists described (in what dissenting Justice Clarence Thomas described as a “considerable understatement”) as “somewhat unusual” – the Court ensured that even federal prisoners who have already filed and lost a prior habeas corpus claim can still seek relief under Johnson if they file a “successive” habeas petition within the one-year statutory habeas deadline (that is, many people think, by June 25, 2016, a year after the Court issued its Johnson decision).
Still, there is no doubt that the Court’s discussion of complex retroactivity law will provide more grist for the mill for many scholarly tenure-seekers and criminal law litigants. Together with this Term’s earlier decision on retroactivity in Montgomery v. Louisiana, the current Court is plainly struggling with an age-old question: when is it fair to give defendants whose cases were settled long ago the benefit of a new Supreme Court decision, versus when is it fair (or at least better for a stable criminal justice system) to leave old cases “final” even when the law changes later on constitutional grounds? While yesterday’s majority said it was acting well within the settled framework of a leading 1989 retroactivity decision, Teague v. Lane, Justice Clarence Thomas in his solo dissent described Welch as an “unprincipled expansion” “unmoored from … limiting principles” of finality. Undoubtedly, Welch will be simply one case in a long chain of conflicted retroactivity decisions that might best be harmonized by Justice Potter Stewart’s homespun claim about certain other cases lacking “intelligible” consistency: “I know it when I see it.”
The question, oversimplified
Over-simply put, the issue before the Court was: when a Supreme Court decision (Johnson) strikes down as unconstitutionally vague a law which for years was used to increase some defendants’ imprisonment terms by at least five years, should defendants whose cases were “final” before that decision be able to claim resentencing (to a lesser term) under that decision? (My prior posts about Welch as well as Johnson (here and here), are the place to find further details.) For several decades, the rule on “retroactivity” has been clear: all defendants whose cases are not yet “final” on direct appeal receive the retroactive benefit of new Supreme Court constitutional criminal procedure decisions. Cases that are final, however, do not receive the benefit of new constitutional rulings – meaning that new criminal procedure decisions do not apply on “collateral” review, that is, on habeas corpus.
Despite the apparent clarity of this “rule,” the Court’s decision in Teague v. Lane, which attempted to settle this doctrine after twenty years of struggling with ideas first advanced by Justice John Marshall Harlan in 1969, recognized two exceptions to its “non-retroactivity rule:” (1) new “watershed rules of criminal procedure” should be “fully retroactive” (that is, available on collateral review even for “final” cases); (2) and so too should be “new substantive rules.” The parties here agreed that Johnson did not fall into the first category; the question then is whether Johnson announced a “substantive” or merely “procedural” rule. Finally on this question, the Court decided in 2004 in Schriro v. Summerlin that “a rule is substantive … if it alters the range of conduct or the class of persons that the law punishes.”
The Johnson rule is “substantive” and thus applies retroactively
Last June in Johnson, the Court ruled that a defendant may not have his sentence increased from ten years or less in prison, to at least fifteen years, under the “residual clause” of the Armed Career Criminal Act, because that clause was “unconstitutionally vague.” Yesterday the Court decided that this ruling fits within the “substantive,” and thus fully retroactive, category. Thus cases in which the residual clause was applied long ago, and are thus today “final,” are not actually final at all: those defendants (who are by definition “career criminals”) may now seek a reduced sentence as though the residual clause had never existed. Or as Justice Thomas put it, in closing his dissent, under this (mistaken, he believes) application of Teague, “every end is instead a new beginning,”
Still, Justice Anthony Kennedy’s opinion for the Court seems relatively straightforward, as it did to seven of the eight Justices – including Justice Samuel Alito, the lone dissenter in Johnson. (Indeed, Justices Kennedy and Alito both disagreed with the majority’s constitutional vagueness ruling in Johnson (Justice Kennedy concurred on statutory grounds), yet they are part of the retroactivity majority in Welch.) Johnson, says the Court, created a “class of persons” that cannot be constitutionally punished under the residual clause. It did not alter the “manner of determining” guilt or punishment (which would be merely procedural). Thus under Schriro, Johnson must fairly be given full retroactive effect, because a “class” of some defendants are serving extended time in prison when the statute that put them there is now unconstitutional.
Usefully, Justice Kennedy’s opinion settles that proper application of Teague must consider the “function” of a new rule, not its constitutional source. Thus, a ruling – such as Johnson – under the Constitution’s Due Process Clauses, may still be “substantive” in its effect. This approach, says the Court, achieves the “balance” that Teague embodies “between … the need for finality in criminal cases, and … the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law.”
The Court went on to respectfully, if at times bluntly, reject other arguments presented by Helgi Walker, the amicus who was appointed to defend the judgment below because the United States agreed with Welch that Johnson should be retroactive. (Indeed, the Court paid her the honor of a textual, rather than footnoted, “ably-discharged-her-responsibilities” compliment.) Thus, the Court ruled, it also does not matter that Congress could possibly rewrite a “precise enough” non-vague statute to achieve the same enhanced sentencing result that the residual clause imposed. The statute under which Welch and others were sentenced to lengthy prison terms is constitutionally invalid and nothing can save that class of individuals from Johnson’s impact.
One side note: the Court spent some time dismissing the “arbitrary distinction” that Walker attempted to draw between decisions that strike down a criminal statute entirely, and one that merely “narrows” the statute. The Court said that Johnson is of the first kind. But because Johnson struck down only one clause, just a partial subsection of a much longer criminal statute, it seems to me that Johnson would fit comfortably into a “narrowed the statute” category.
Finally, and apparently responding to Justice Thomas’s critique that “every case invalidating a statute” will now have to be declared retroactive, the Court closed by noting that “not every decision striking down a statute is ipso facto a substantive decision.” If a procedural statute is struck down – “for example, a statute regulating the types of evidence that can be presented at trial” – it “would have no retroactive effect” (unless it were “watershed” – and let’s not get started down that rabbit hole here).
A separate point: certificates of appealability
Space precludes much detail about this, but to get to the merits in Welch the Court had to first wend its way through the thicket of the statutory “certificate of appealability” requirement for jurisdiction over federal habeas corpus appeals. This too is a somewhat complex point, but it seems certain that the Court’s analysis here – that Welch may properly seek review of the Eleventh Circuit’s denial of such a certificate even though his district court habeas petition did not raise the Johnson issue (which it couldn’t do, because the Court had not yet decided Johnson) – will be pleasing to habeas corpus advocates. In fact, almost half of Justice Thomas’s dissent was devoted to this issue, and he described the majority’s “distort[ed]” analysis as “preposterous.” (Justice Thomas is, after all, the Eleventh Circuit’s “Circuit Justice,” and some Court-watchers believe that the Circuit Justices often loyally defend their charges.) For more on this issue, the small but committed band of capital habeas lawyers in this country should read the opinions.
Dissent: Do Welch and Montgomery “unmoor” retroactivity doctrine?
Justice Thomas’s dissent seems somewhat lonely in this case – perhaps in the absence of Justice Antonin Scalia, although as the author of Johnson Justice Scalia’s vote here could not be certain. Still, Justice Thomas makes a point which seems unavoidable: retroactivity doctrine seems different today than it did some twenty years ago in Teague’s heyday. Justice Thomas says the majority’s approach “breaks down all meaningful distinctions between ‘new’ and ‘old,’” and that “the Court keeps moving the goalposts.” Thus, he claims, the Court’s recent “retroactivity rules have become unmoored from the limiting principles that” Teague, and perhaps Justice Harlan, originally voiced. The majority, for its part, is careful to quote Justice Harlan, and certainly Justice Harlan, like all lawyers who labor in this puzzling area, sometimes expressed mixed views. All that can fairly be said right now, I think, is that although Welch may add clarity for some, it hardly settles, with finality, future retroactivity issues that will continue to arise.