Reviving Teague's "Watershed" Exception.

• Author: Sidhu, Jasjaap S.

When the Supreme Court announces a new constitutional rule, that holding applies retroactively to a criminal defendant's case if her conviction is not yet final. (1) Defendants whose cases are on collateral review, however, are not entitled to the same benefit of retroactivity. Instead, under Teague v. Lane, (2) a "new rule" generally does not apply retroactively on collateral review. (3) There are two exceptions to the bar on retroactivity in collateral review proceedings: first, for substantive rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe;" (4) and second, for "watershed rules of criminal procedure." (5) Although the Court has announced rules that fit within Teague's substantive exception, (6) it has "never found a rule that fits [the watershed exception]." (7)

This Note focuses on the Court's evolving habeas retroactivity doctrine and, specifically, the "watershed" exception to the Court's general rule that new rules of constitutional law are not applied retroactively on collateral review. That exception was announced in Teague, but it has its origins in Justice Harlan's retroactivity jurisprudence of the late 1960s and early 1970s. As discussed below, Justice Harlan articulated two different standards for determining whether a new rule is a watershed rule: first, whether it promotes the reliability of convictions by significantly improving the pre-existing fact-finding procedures; (8) and second, whether it is "implicit in the concept of ordered liberty." (9) In Part I, I argue that this latter standard--adopted from the incorporation debates--has been discredited and is ill-suited for retroactivity purposes.

Nevertheless, the Teague plurality announced a rule that requires petitioners to satisfy both standards. (10) It also noted that only "bedrock" rules of criminal procedure will qualify. (11) In Part II, I analyze the Court's retroactivity jurisprudence since Teague and argue that, as a result of Teague and its progeny's emphasis on analogizing to "bedrock" rules like the one announced in Gideon v. Wainwright, (12) the watershed exception is all but a dead letter today. Moreover, the Court's justification for such a difficult standard--finality interests--is insufficient to limit retroactivity to rules as fundamental as Gideon's. Indeed, one can strike a balance slightly different than the Teague plurality's while maintaining respect for finality interests--a balance similar to that embraced by some Founding-era jurists.

In Part III, I discuss why the Court's recent decision in Ramos v. Louisiana (13) invites the Court to modify the Teague standard. The rule announced in Ramos--that the Sixth Amendment's right to a jury trial requires a unanimous verdict--is fundamentally about reliability, and the finality interests at stake are lower than usual. Moreover, Justice Gorsuch's arguments in Ramos suggest that Teague may not even be binding precedent. Accordingly, the Ramos decision creates a unique opportunity for the Court to minimize the impact of Gideon and "bedrock procedural rules" on the watershed inquiry and shift the analysis toward the reliability-enhancing nature of a rule, even if it decides that Ramos is not retroactive.

Indeed, not long after delivering the Ramos decision, the Court granted certiorari in Edwards v. Vannoy to resolve whether the rule announced in Ramos applies retroactively on collateral review. In Part IV, I discuss some of the ways in which the oral argument in Edwards reveals how the Justices are currently thinking about the watershed exception.

1. THE ORIGINS OF TEAGUE: JUSTICE HARLAN'S PUZZLING RETROACTIVITY JURISPRUDENCE

   Under Teague, a new procedural rule is a "watershed rule" if it satisfies two requirements. First, the rule must "significantly improve the pre-existing factfinding procedures" used before and at trial. (14) The goal is reliability: the Court sought to avoid "an impermissibly large risk that the innocent will be convicted." (15) Second, the rule must be "implicit in the concept of ordered liberty." (16)

   These standards were inspired by Justice Harlan's opinions in two cases. The first is his dissenting opinion in Desist v. United States, (17) in which Justice Harlan explained his views on retroactivity. (18) He argued first that new rules should always be applied retroactively on direct review. (19) Next, he suggested that, on collateral review, the only new rules that should be applied retroactively are those that "significantly improve the pre-existing fact-finding procedures" used before and at trial. (20) In doing so, Justice Harlan cited to Professor Paul Mishkin, a then-leading federal courts scholar. (21) Indeed, it is widely understood that Professor Mishkin's arguments strongly influenced Justice Harlan's opinions on retroactivity. (22) Accordingly, a brief discussion of Professor Mishkin's argument is warranted.

   Professor Mishkin's justification for retroactively applying certain new procedural rules can be summed up in one word: reliability. In the portion of Professor Mishkin's article cited by Justice Harlan, Professor Mishkin notes that "the mere possibility, however real, that a new trial might produce a different result is not a sufficient basis for habeas corpus," and the "functions of collateral attack must thus be focused on relieving from confinements whose basis is deficient in more fundamental ways." (23) For Professor Mishkin, one of those "fundamental" deficiencies relates to the reliability of a guilty verdict. As Professor Mishkin explained, "when a constitutional guarantee is heightened or added to in a manner calculated to improve the reliability of a finding of guilt, the new interpretation essentially establishes a new required level of confidence as the condition for criminal punishment." (24) Building from this premise, Professor Mishkin argues that retroactive application of a new rule on collateral review is warranted where that rule substantially improves the reliability of the adjudicative process:

   [T]here is certainly substantial justification for the position that no one shall thereafter be kept in prison of whom it has not been established by processes embodying essentially that new degree of probability that he is in fact guilty. Valuing the liberty of the innocent as highly as we do, earlier proceedings whose reliability does not measure up to current constitutional standards for determining guilt may well be considered inadequate justification for continued detention. For to continue to imprison a person without having first established to the presently required degree of confidence that he is not in fact innocent is indeed to hold him, in the words of the habeas corpus statute, "in custody in violation of the Constitution." (25) Justice Harlan adopted this focus on reliability. Although Justice Harlan did not quote Professor Mishkin's exact language in his Desist opinion, he noted that a "principal function" of habeas is to "assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted." (26) Moreover, the Teague plurality itself described Justice Harlan's approach in Desist as focusing on a similar concept, i.e., "accuracy." (27) Accordingly, after Desist, Justice Harlan's approach to retroactivity on collateral review--an approach driven primarily by Professor Mishkin's analysis--can fairly be described as focusing on reliability.

   Yet, just two years later, Justice Harlan suddenly shifted course. In his partial dissent in Mackey v. United States, Justice Harlan argued that the watershed exception should be reserved for those new rules that are "implicit in the concept of ordered liberty." (28) He adopted this standard from the incorporation debates and, specifically, Justice Cardozo's opinion in Palko v. Connecticut. (29)

   Justice Harlan gave three reasons for departing from a focus on reliability. First, he concluded that "it is not a principal purpose of the writ to inquire whether a criminal convict did in fact commit the deed alleged." (30) Second, he noted that new rules of criminal procedure that had been recently announced by the Court were only "marginally effective" at improving the fact-finding process and that the interest in finality outweighs the interest in applying marginal improvements retroactively. (31) Finally, Justice Harlan found it difficult to distinguish between "those new rules that are designed to improve the factfinding process and those designed principally to further other values." (32)

   As noted above, the Teague plurality essentially combined the Desist and Mackey standards when it announced its "watershed" doctrine. In doing so, the Court suggested that the concerns Justice Harlan announced in Mackey could be alleviated by combining the Palko standard with a focus on accuracy. (33) However, instead of attempting to reconcile the Desist and Mackey standards, the Court should have rejected Justice Harlan's Mackey analysis entirely. This is so for four reasons.

   First, the Palko standard is ill-suited for retroactivity purposes. That standard was used to determine whether a particular guarantee in the Bill of Rights was incorporated by the Fourteenth Amendment and therefore applicable to the states. (34) However, as Justice Marshall explained elsewhere, Palko has been discredited, and a number of constitutional criminal procedure requirements were held inapplicable to the states under the Palko standard:

   Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was "shocking to the universal sense of justice." It relied upon Twining v. New Jersey, which held that...