10.11 RETROACTIVITY OF COURT DECISIONS AND STATUTES

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

10.11 RETROACTIVITY OF COURT DECISIONS AND STATUTES

When a decision of the United States Supreme Court does nothing more than apply settled precedent to different fact situations, the ruling applies retroactively to all convictions that are on direct appeal and not yet final at the time the decision was rendered. Even when a ruling announces a new rule of law, that decision applies to all cases still pending on direct review in state and federal courts, and it may also apply to state collateral review courts to give retroactive effect to the rule. ²⁶⁴³

Statutes generally are prospective in the absence of an express retroactivity provision in the statute. Accordingly, when a statute is amended while an action is pending, the rights of the parties are to be determined in accordance with the law in effect when the action began, unless the amended statute shows a clear intention to vary such rights. ²⁶⁴⁴

In 2020 and 2021, the General Assembly made several changes to the criminal law that brought retroactivity to the forefront, and the courts looked at several situations where the difference between substantive and procedural changes in the law intersect. This is codified in section 1-239 of the Virginia Code, which states that statutory changes that affect procedure should conform to the law in force at the time of the proceedings. ²⁶⁴⁵ As stated above, this general rule...