479 U. S. 314
January 13, 1987
In Batson v. Kentucky the Supreme Court announced a new rule in criminal procedure. It gave criminal defendants some additional Constitutional rights when the prosecution used peremptory challenges to remove members of the defendant’s race from the jury. Griffith, who had been tried only a few months after Batson in the very same court, wanted to take advantage of the new rule. The question before the Supreme Court was whether a completely new rule could be applied retroactively to defendants who were having their cases directly reviewed on appeal.
By a 6-3 vote, with Blackmun writing the majority opinion, the Court held that new rules should be retroactively applied to cases on direct review. The majority drew in large part from arguments made by Justice Harlan many years ago. Harlan emphasized that to not apply a rule retroactively makes the Court like a legislature rather than a judiciary. He also pointed out that petitioners challenging their convictions should be treated alike, and that one should not be favored over the others merely because his case reached the Court first. Blackmun held that even rules which represent clear breaks with the past ought to be retroactively applied in the interest of fairness. In making this holding, he downplayed the importance of retroactivity’s administrative costs, and the need for law enforcement to be able to rely on what was settled law at the time.
Powell wrote a concurring opinion to make clear that new rules should be retroactive only in cases on direct review. In cases on collateral review, he agreed with Harlan that new rules should generally not apply except in some special cases. Rehnquist also agreed with Harlan’s views, but dissented in Griffith, fearing that the actual logic of the Court’s majority opinion would lead to retroactive application in all cases on collateral review. White dissented, and was joined by Rehnquist and O’Connor. He thought the fairness rationale was overblown, in part because he could not find any truly principled cutoff point for retroactive application. He also thought the Court should give more weight to the administrative burdens of retroactive application, and the desire of law enforcement officials to enjoy reliance on existing precedent.
Retroactive application of new rules is a fascinating subject. Myself, I cannot escape the logic that a criminal must not remain incarcerated if his conviction violated the Constitution. Thus, I would hold new rules to be enforceable even after collateral appeals have been exhausted. I just hate relativism – the Constitution cannot mean one thing for one person, and something else for another. That said, I would compensate by almost never making new rules, or by allowing more violations to be dismissed as harmless error. In the last half century, far too many unnecessary rights have been extended to criminals.