Doctrinal Desert: A Watershed in Sight?

Last week, the Supreme Courtheard argumentinMontgomery v. Louisiana. Two issues were on the table. The firstis whether the Court’s 2012Miller v. Alabamadecision — striking down mandatory life-without-parole sentences for juveniles underthe Eighth Amendment — applies retroactively to cases on collateral review. The second issue is whether the Court even has jurisdiction to hear Montgomery’s appeal. According to reports about the argument, the Justices seemed far more interested in, and confounded by, the second issue.

This is unfortunate. Relief for Mr. Montgomery (and those similarly situated) is only possible if the Court actually reaches the retroactivity question. And perhaps Mr. Montgomery deserves relief. Though he committed a terrible murder, he was only17 years old when he did it. Though he killed a law enforcement officer, he did soway back in 1963 during a turbulent and tension-filled time. And Mr. Montgomeryhas been in prison ever since. That’s 52 years and counting. To me at least, that smells like cruel and unusual punishment.

So let’s imagine for a second that the Court does reach the retroactivity issue. On the surface, prospects here donot look good. According to the governing precedent ofTeague v. Lane, new constitutional rules announced in criminal cases ordinarily do not apply retroactively to cases on collateral review.Teagueenvisioned two exceptions to this general rule.First, retroactivity is possible for “substantive” decisions — those changing the definition ofwhat iscriminal or or whatpunishment can be imposed.Second, retroactivity is also possible for new “procedural” decisionsifthose decisions announce “watershed rules” that re-conceptualize what constitutes basic fairness ina criminal trial.

AlthoughMr. Montgomeryand theparties supporting himargue thatMillerlaid down a new substantive rule thus invokingTeague‘s first exception, I want to focus on the second exception. For the “watershed rule of criminal procedure” exception demonstrates just how illusory justice can be for those trapped in our system of mass incarceration. The fact is that the Court has never recognized a watershed rule underTeague. As my colleague Garrett Eppsquipped the other day: “Watershed rules arelike Bigfoot; everybody’s heard of them, but nobody’s seen one.” Consider the following map.

(For a full size version of the map with links to cases, click here.)

The magenta circleson the map represent decisions where the Court announced important new procedural rules—Caldwell,Batson,Mills,Simmons,RingandCrawford. Even though these decisions significantly changed the law and often concerned life-and-death issues, the brown triangles represent the Court’s universal subsequent rejection of retroactive application for the rules. No matter the rule, the Court decided that Justice did not require looking back.

Two cartographic pointsdeserve mention. First,SummerlinandBanksweredecided on the same day. The map onlychangesBanks' decision datefor readability’s sake. Second, the map makesapparent that retroactivity very much divides the Court. As shown by the Y-axis (using aSpaeth projection), four of the decisions rejecting retroactivity —Sawyer, O’Dell,Summerlin, andBanks— involved5-4 splits. Interestingly, Spaeth classifies all the decisions announcing new rules as “liberal” and all the decisions rejecting their application as “conservative.”

Is it possible that one day a watershed rule willemerge from this doctrinal desert? Perhaps. As mentioned above, it is not likely thatMontgomerywill be this case since jurisdiction stands in the way and since the parties are angling for relief underTeague‘s substantive exception. But advocates and scholars should not despair of ever finding a watershed rule. The persistence of 5-4 splits on retroactivity shows kinks in the Court’s armor. With the problem of mass incarceration now getting mainstream attention, the Court may realize that retroactive application of important new rules is one easy way to get very old men and women out of prison.And the time for that innovation is well past due.

For more from the Supreme Court Mapping Project, see here.