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Why Jones v. Chappell is Wrong, Part 3 -- Teague v. Lane

Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.
Judge Carney declares the governing "rule" at a sweeping level of generality.  Of course the principle against arbitrary punishment is well-established, but deriving from that principle a rule that a state's death penalty can be struck down if its execution delays are too long is another matter.  At what level of generality or specificity do we define the "rule" to which Teague applies?

If Teague had been decided yesterday, judges could reasonably debate this level-of-generality question.  But it was not.  Teague was decided 25 years ago, and the Supreme Court decided the level-of-generality question 24 years ago, in its very next term.

In Sawyer v. Smith, 497 U.S. 227 (1990), the question was whether the rule of Caldwell v. Mississippi, 472 U.S. 320 (1985) would be applied retroactively to overturn the sentence of a murderer whose conviction and sentence had already been affirmed on direct appeal when Caldwell was decided.  Caldwell established a rule against prosecutors making arguments to sentencing juries that lead them to believe the responsibility for the sentence lies elsewhere. 

Sawyer relied on Eighth Amendment precedents supporting a general right to accurate sentencing proceedings as well as due process precedents regarding improper prosecutorial arguments.  The Supreme Court clearly rejected the notion that such broad principles could qualify as the "rule" for Teague.

We do not doubt that our earlier Eighth Amendment cases lent general support to the conclusion reached in Caldwell. But neither this fact, nor petitioner's contention that state courts "would have found Caldwell to be a predictable development in Eighth Amendment law," Brief for Petitioner 8, suffices to show that Caldwell was not a new rule. In petitioner's view, Caldwell was dictated by the principle of reliability in capital sentencing. But the test would be meaningless if applied at this level of generality. Cf. Anderson v. Creighton, 483 U.S. 635, 639 (1987) ("If the test of 'clearly established law' were to be applied at this level of generality, . . . plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights").
See 497 U.S., at 236 (emphasis added).  The Supreme Court has many times since applied Teague at the level of specific rules, not the general principles on which those rules are based.

In law reviews and blogs, we can debate whether Sawyer and the other level-of-generality cases were correctly decided.  A district judge rendering a decision does not have that luxury.  Supreme Court precedents are binding, and he must follow them. 

Judge Carney's stated reason for avoiding the Teague bar is contrary to binding Supreme Court precedent beyond any doubt whatsoever.  Did Judge Carney know about Sawyer and its progeny?  If he did, this is judicial insubordination.  If he did not, this is gross negligence.  Deciding a case of this magnitude without the most elementary research is utterly inexcusable.

* Disclosure:  My estimate of Teague's importance is not entirely objective.  The Teague Court addressed this issue at my suggestion.  See 489 U.S., at 300.  I wrote an amicus brief in Sawyer as well.


Did the government raise the Teague bar?

Apparently not, but since the court addressed it on the merits and did not rely on a waiver rationale, that does not matter.

I should have asked if the government raised the Sawyer level-of-generality argument that you so forcefully and persuasively set forth?

Seems like double gross negligence: The government's failure to raise and Carney's failure to properly research.

Can the 9th Circuit rely on a waiver argument despite Carney's addressing the merits?

Any chance that the California Attorney General, given her well-established anti-DP stance from her days as San Fran DA, purposely omitted a Teague/Sawyer argument, and is secretly very supportive of Carney's newly minted rule?

(1) No comment.

(2) Not likely. Although Teague can be expressly waived by the state, the Supreme Court has allowed the issue to be raised very late in the proceedings. Also, parties are generally allowed to rely on grounds decided on the merits in the lower court, even if that court could have but did not rely on a default rationale.

(3) No comment.


Although Carney's decision is not binding on California trial courts, it is apparently "entitled to great weight" on the federal constitutional question. (See, Southern California Gas Co. v. Occupational Safety & Health Appeals Bd. (1997) 57 Cal.App.4th 200, 206.)

What advice would you give to California prosecutors who are presently trying DP cases (or will be doing so in the near future) and are confronted with a defense motion requesting that the DP be taken off the table based upon Carney's decision? (It would appear as though any defense attorney trying a capital case would be required to cite Carney's opinion and request that the prosecution be barred from seeking death, lest he/she risk waiving the issue and be subjected to an IAC claim on appeal/habeas.)

What are the best arguments that can be made that Carney's decision should not be given the "great weight" it is apparently entitled to under California law?

Is their a procedure whereby the California AG can request that Carney's decision be stayed pending resolution by the 9th Circuit? If so, do you know if the AG has sought this temporary relief? It would seem to me that, given the potential impact of Carney's decision on California DP cases (pending on appeal and being prosecuted at the trial court level) it should at least be stayed to allow a higher court to chime in on the Eighth Amendment issue.

Are you sure about that cite?

58 (not 57) Cal.App.4th 200, 206. Sorry.

Long line of California cases using the "entitled to great weight" language when referring to the effect of federal court decisions on federal questions. It would seem, though, that this principle, as applied to Carney's decision, conflicts with the fact that the California Supreme Court has summarily rejected Lackey claims numerous times.

In any event, I know for a fact that defense counsel have begun to cite Carney's decision at the trial court level in support of a motion to strike the DP as potential punishment. Your advice to CDAA on this issue would be very helpful.

What about the first exception to the Teague doctrine?

That would be arguable, but Judge Carney did not invoke it. The Teague discussion actually in the opinion is just plain wrong.

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