Griffith v. Kentucky

Justice White,

with whom The Chief Justice and Justice O’Connor join, dissenting.

Last Term this Court decided that the rule announced in Batson v. Kentucky, 476 U. S. 79 (1986), should not apply on collateral review of convictions that became final before the decision in Batson was announced. Allen v. Hardy, 478 *330 U. S. 255 (1986). In reaching this judgment, the Court weighed the three factors that it has traditionally considered in deciding the retroactivity of a new rule of criminal procedure: “ ‘ “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.””’ Id., at 258 (quoting Solem v. Stumes, 465 U. S. 638, 643 (1984), in turn quoting Stovall v. Denno, 388 U. S. 293, 297 (1967)). No Justice suggested that this test is unworkable. The question, then, is why the Court feels constrained to fashion a different rule for cases on direct review. The reasons the Court offers are not new, and I find them as unpersuasive today as I have in the past:

“Two concerns purportedly underlie the majority’s decision. The first is that retroactivity is somehow an essential attribute of judicial decisionmaking, and that when the Court announces a new rule and declines to give it retroactive effect, it has abandoned the judicial role and assumed the function of a legislature — or, to use the term Justice Harlan employed in describing the problem, a ‘super-legislature.’ Desist v. United States, 394 U. S. 244, 259 (1969) (Harlan, J., dissenting). The second (and not completely unrelated) concern is fairness. It is the business of a court, the majority reasons, to treat like cases alike; accordingly, it is unfair for one litigant to receive the benefit of a new decision when another, identically situated, is denied the same benefit. The majority’s concerns are no doubt laudable, but I cannot escape the conclusion that the rule they have spawned makes no sense.

“As a means of avoiding what has come to be known as the super-legislature problem, the rule announced by the majority is wholly inadequate. True, the Court is not and cannot be a legislature, super or otherwise. But I should think that concerns about the supposed usurpa *331 tion of legislative authority by this Court generally go more to the substance of the Court’s decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture-that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in ‘judicial legitimacy.’

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“The claim that the majority’s rule serves the interest of fairness is equally hollow. Although the majority finds it intolerable to apply a new rule to one case on direct appeal but not to another, it is perfectly willing to tolerate disparate treatment of defendants seeking direct review of their convictions and prisoners attacking their convictions in collateral proceedings. As I have stated before, see [United States v.] Johnson, [ 457 U. S. 537, 566-568 (1982)] (White, J., dissenting); Williams v. United States, 401 U. S. 646, 656-659 (1971) (plurality opinion), it seems to me that the attempt to distinguish between direct and collateral challenges for purposes of retroactivity is misguided. Under the majority’s rule, otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system. The disparity is no different in kind from that which occurs when the benefit of a new constitutional rule is retroactively afforded to the defendant in whose case it is announced but to no others; the Court’s new *332 approach equalizes nothing except the numbers of defendants within the disparately treated classes.” Shea v. Louisiana, 470 U. S. 51, 62-64 (1985) (White, J., dissenting). 1

The Court’s invocation of fairness also overlooks the fact that it is a fortuity that we overruled Swain v. Alabama, 380 U. S. 202 (1965), in a case that came to us on direct review. We could as easily have granted certiorari and decided the matter in a case on collateral review, such as Allen v. Hardy . In that case, the principle of treating like cases alike would dictate that all cases on collateral review receive the benefit of the new rule. I trust that the Court would not go that far in letting the tail wag the dog; good judgment would — I hope — win out over blind adherence to the principle of treating like cáses alike. Yet today the Court acts as if *333 it has no choice but to follow a mechanical notion of fairness without pausing to consider “sound principles of decision-making,” Stovall v. Denno, 388 U. S., at 301 .

For the foregoing reasons, I would adhere to the approach set out in Stovall v. Denno, supra, at 300 , and recognize no distinction for retroactivity purposes between cases on direct and collateral review. But even if I saw some merit in applying the Harlan approach to cases on direct appeal, I would nonetheless preserve the exception for “clear breaks” recognized in United States v. Johnson, 457 U. S. 537 (1982). Under our precedent, “a decision announcing a new standard ‘is almost automatically nonretroactive’ where the decision ‘has explicitly overruled past precedent.’” Allen v. Hardy, 478 U. S., at 258 (quoting Solem v. Stumes, 465 U. S., at 646, 647 ). As the majority in Johnson explained:

“Once the Court has found that [a] new rule was unanticipated, the second and third Stovall factors — reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of non-retroactivity.” 457 U. S., at 549-550 (citations omitted).

The Court has already recognized that Batson constitutes “an explicit and substantial break with prior precedent,” and that “prosecutors, trial judges, and appellate courts throughout our state and federal systems justifiably have relied on the standard of Swain . ” Allen v. Hardy, supra, at 258, 260 . The reasons that the Court gave in Allen v. Hardy for concluding that “retroactive application of the Batson rule on collateral review of final convictions would seriously disrupt the administration of justice,” 478 U. S., at 260 , apply equally to retroactive application of the Batson rule on direct review. 2

*334 The majority knows that it is penalizing justifiable reliance on Swain , and in doing so causing substantial disruption in the administration of justice; yet the majority acts as if it has no principled alternative. This is not true; it would be a far sounder rule, and no less principled, to apply the Stovall test to determine retroactivity on both direct and collateral review. I respectfully dissent.

The Court does not in these cases address the differential treatment of cases on direct and collateral review. I adhere to my view that the Court’s decisions in United States v. Johnson, 457 U. S. 537 (1982), and Shea v. Louisiana, 470 U. S. 51 (1985), provide no satisfactory justification for distinguishing between the two classes of cases. As I stated in Shea :

“The majority recognizes that the distinction between direct review and habeas is problematic, but justifies its differential treatment by appealing to the need to draw ‘the curtain of finality,’ [470 U. S.,] at 60, on those who were unfortunate enough to have exhausted their last direct appeal at the time Edwards [v. Arizona, 451 U. S. 477 (1981),] was decided. Yet the majority offers no reasons for its conclusion that finality should be the decisive factor. When a conviction is overturned on direct appeal on the basis of an Edwards violation, the remedy offered the defendant is a new trial at which any inculpatory statements obtained in violation of Edwards will be excluded. It is not clear to me why the majority finds such a burdensome remedy more acceptable when it is imposed on the State on direct review than when it is the result of a collateral attack. The disruption attendant upon the remedy does not vary depending on whether it is imposed on direct review or habeas; accordingly, if the remedy must be granted to defendants on direct appeal, there is no strong reason to deny it to prisoners attacking their convictions collaterally. Conversely, if it serves no worthwhile purpose to grant the remedy to a defendant whose conviction was final before Edwards , it is hard to see why the remedy should be available on direct review.” Id., at 64-65 (footnote omitted).

“The distinction between direct review and collateral attack may bear some relationship to the recency of the crime; thus, to the extent that the difficulties presented by a new trial may be more severe when the underlying offense is more remote in time, it may be that new trials would tend *334 to be somewhat more burdensome in habeas eases than in cases involving reversals on direct appeal. However, this relationship is by no means direct, for the speed with which cases progress through the criminal justice system may vary widely. Thus, if the Court is truly concerned with treating like cases alike, it could accomplish its purpose far more precisely by applying new constitutional rules only to conduct of appropriately recent vintage. I assume, however, that no one would argue for an explicit ‘5-year-rule,’ for example.

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“Of course, it will be less burdensome in the aggregate to apply [Batson] only to cases pending when [Batson] was decided than to give it full retroactive effect; by the same token, it would be less burdensome to apply [Batson] retroactively to all cases involving defendants whose last names begin with the letter ‘S’ than to make the decision fully retroactive. The majority obviously would not countenance the latter course, but its failure to identify any truly relevant distinction between cases on direct appeal and cases raising collateral challenges makes the rule it announces equally indefensible.” Shea v. Louisiana, 470 U. S., at 64, n. 1 (White, J., dissenting).