The U.S. Supreme Court heard argument today in Montgomery v. Louisiana, No. 14-280. The "merits" question is whether Miller v. Alabama (2012) -- which held that states can continue to sentence juvenile murders to life without parole but must give consideration to a lesser sentence -- applies retroactively so as to require resentencing of every killer sentenced to LWOP under a mandatory statute, even if the judgment was final on appeal years or even decades ago.
Before getting to that, though, there is a threshold question of the U.S. Supreme Court's jurisdiction to review the state court's decision not to apply Miller retroactively in a state habeas corpus case. Does the state have to follow federal retroactivity law? One of the two shoes dropped seven years ago in Danforth v. Minnesota (2008). A state can, if it likes, apply a new rule retroactively in its own courts even if the federal rule of Teague v. Lane says the rule is not retroactive. We have been waiting for the second shoe to drop ever since.
Justice Breyer asked in today's argument:
Before getting to that, though, there is a threshold question of the U.S. Supreme Court's jurisdiction to review the state court's decision not to apply Miller retroactively in a state habeas corpus case. Does the state have to follow federal retroactivity law? One of the two shoes dropped seven years ago in Danforth v. Minnesota (2008). A state can, if it likes, apply a new rule retroactively in its own courts even if the federal rule of Teague v. Lane says the rule is not retroactive. We have been waiting for the second shoe to drop ever since.
Justice Breyer asked in today's argument:
Danforth was the case saying that the states could be more generous. It wasn't a case -- this is a case that's the opposite of being generous: Can they be more stingy? And I cannot find anything in -- in Harlan -- maybe I'll read it again, but I can't find anything there, nor can I find anything in Danforth that answers the question.I did not brief this question in the CJLF brief, believing the base was covered by others. Considering that the question was discussed more than the merits in today's argument, maybe I should have.
Here is another tale of two shoes. In the late 60s and early 70s, Justice John M. Harlan was a lone voice against the way the Supreme Court declaring new rules retroactive or not under a vague standard that pretty much let them do what they wanted for each rule. In Griffith v. Kentucky (1987), the Court adopted half of Justice Harlan's view and said that all new rules would be fully retroactive to cases still on direct appeal.
In the 1989 case of Teague v. Lane, the Supreme Court (at the suggestion of yours truly), adopted the second half of the Harlan thesis and severely restricted the application of new rules when final judgments are challenged on collateral attack.
Teague was a case where a state court judgment was collaterally attacked in federal court, and nearly all of the cases that fleshed out the Teague rule in the years that followed were also. How does its rule apply in other contexts?
First, federal courts regularly applied Teague to collateral attacks on federal judgments, though commentators protested that it was a federalism rule that should not apply in this context. The Supreme Court brushed off an argument to that effect as defaulted in Chaidez v. United States (2013), but it is hard to believe they would not have exercised their discretion to consider it if they thought it was really substantial.
Second, not all state supreme courts chose to follow Teague for their state collateral reviews. Some stuck with the Supreme Court's prior rule, the Linkletter-Stovall test, which is more favorable to defendants generally. It is hard to imagine any rule that would be retroactive under Teague but not under Linkletter-Stovall, while the reverse is quite possible. Yet it was not until 19 years after Teague that the Supreme Court confirmed in Danforth that a state could apply new rules more broadly if it chose to.
While some states chose to apply a rule more generous to the defendant than the federal Teague rule, none chose to apply a rule more protective of finality of judgments, or "more stingy" to use Justice Breyer's formulation. Could they if they wanted to? Is it necessary to decide that question to decide this case?
In this case, the Louisiana Supreme Court did not purport to decide under a standard more "stingy" than Teague. The state court expressly followed federal law, Teague, and decided the case under that law. That should be sufficient for the Supreme Court to review that decision on the merits.
If the U.S. Supreme Court reverses a decision of a state court based on federal law, is it a problem that the state court could, at least in theory, then reach the same result in favor of the same party based on state law? That question was the subject of discussion today, but I do not think it is a problem. We see that all the time in decisions favoring the defendant. A state court can say, "We find that procedure X violates provision Y of the United States Constitution." The U.S. Supreme Court then says, "No, it does not." On remand, the state court can say, "Well, then, it violates provision Z of the state constitution, even though the state and federal provisions are worded the same." Such decisions were once so common in California that a paragraph was added to Article I ยง 24 of the state constitution to forbid it. (That paragraph was quickly declared unconstitutional.)
The Louisiana Supreme Court decided 23 years ago to follow the federal Teague rule for the retroactivity on state habeas of new federal rules. See Taylor v. Whitley, 606 So. 2d 1292, 1296. In the present case, the court decided the federal question of whether Miller is retroactive under Teague. Whether the predicate rule adopting Teague might be altered in the future should not matter in this case. The state court decided a federal question, and the U.S. Supreme Court has jurisdiction to review that decision.
In the 1989 case of Teague v. Lane, the Supreme Court (at the suggestion of yours truly), adopted the second half of the Harlan thesis and severely restricted the application of new rules when final judgments are challenged on collateral attack.
Teague was a case where a state court judgment was collaterally attacked in federal court, and nearly all of the cases that fleshed out the Teague rule in the years that followed were also. How does its rule apply in other contexts?
First, federal courts regularly applied Teague to collateral attacks on federal judgments, though commentators protested that it was a federalism rule that should not apply in this context. The Supreme Court brushed off an argument to that effect as defaulted in Chaidez v. United States (2013), but it is hard to believe they would not have exercised their discretion to consider it if they thought it was really substantial.
Second, not all state supreme courts chose to follow Teague for their state collateral reviews. Some stuck with the Supreme Court's prior rule, the Linkletter-Stovall test, which is more favorable to defendants generally. It is hard to imagine any rule that would be retroactive under Teague but not under Linkletter-Stovall, while the reverse is quite possible. Yet it was not until 19 years after Teague that the Supreme Court confirmed in Danforth that a state could apply new rules more broadly if it chose to.
While some states chose to apply a rule more generous to the defendant than the federal Teague rule, none chose to apply a rule more protective of finality of judgments, or "more stingy" to use Justice Breyer's formulation. Could they if they wanted to? Is it necessary to decide that question to decide this case?
In this case, the Louisiana Supreme Court did not purport to decide under a standard more "stingy" than Teague. The state court expressly followed federal law, Teague, and decided the case under that law. That should be sufficient for the Supreme Court to review that decision on the merits.
If the U.S. Supreme Court reverses a decision of a state court based on federal law, is it a problem that the state court could, at least in theory, then reach the same result in favor of the same party based on state law? That question was the subject of discussion today, but I do not think it is a problem. We see that all the time in decisions favoring the defendant. A state court can say, "We find that procedure X violates provision Y of the United States Constitution." The U.S. Supreme Court then says, "No, it does not." On remand, the state court can say, "Well, then, it violates provision Z of the state constitution, even though the state and federal provisions are worded the same." Such decisions were once so common in California that a paragraph was added to Article I ยง 24 of the state constitution to forbid it. (That paragraph was quickly declared unconstitutional.)
The Louisiana Supreme Court decided 23 years ago to follow the federal Teague rule for the retroactivity on state habeas of new federal rules. See Taylor v. Whitley, 606 So. 2d 1292, 1296. In the present case, the court decided the federal question of whether Miller is retroactive under Teague. Whether the predicate rule adopting Teague might be altered in the future should not matter in this case. The state court decided a federal question, and the U.S. Supreme Court has jurisdiction to review that decision.
It seems to me that "Our Federalism" gives state courts a good deal of flexibility here.
1) A state court could simply hold that the error was waived (it's highly unlikely that Montgomery raised the Miller issue) and keep its doors closed to such claims.
2) A state court could simply decide that successive post-conviction relief proceedings won't correct such "errors."
3) Adjudicate the claim on the merits.
4) Follow Teague.
In other words, states could simply deny relief and force prisoners to go the federal habeas route. In other words, the states are free to give as much effect to their criminal judgments as they damned well please. This, in my mind, is a quintessentially state (not federal) law issue, and therefore, the Court has no jurisdiction.
Personally, I don't think that state courts should be doing the federal courts' dirty work here--if Montgomery succeeds (an appalling result), why in the world should state courts allow themselves to be commandeered to rip open their own judgments?