Argument preview: Danforth v. Minnesota

In Danforth v. Minnesota, the Supreme Court will examine the authority of states to give accused or convicted individuals added protection for legal rights that result from Supreme Court decisions, even if the Justices have limited who may benefit from those rulings. This new case sets up a classic test of federalism, over state control of their own criminal procedures. To decide the case, the Court may have to address a profoundly important question of its authority to pronounce constitutional law and to decide how its decisions are to be implemented.

Background

For the past four decades, since the mid-1960s, the Supreme Court has been seeking to define who may benefit from its decisions on the rights of those accused or convicted of crime. For about half of that time, the Court limited the impact of those rulings to the individuals who filed those specific cases, and thus the decisions applied to other cases only in the future – that is, those cases tried after the rulings had come down. That led to significant inequalities in outcome: for example, the Supreme Court in the famous case of Miranda v. Arizona in June 1966 established the right of suspects held by police to be warned of their legal rights before they may be questioned. But, one week after that decision, in the similar case of Johnson v. New Jersey, the Court said Miranda would only apply to other cases that were tried thereafter. That was because of the controlling effect of the doctrine of non-retroactivity that then prevailed.

A decision that applies retroactively, of course, can be a boon to convicted individuals, because it may allow them to get their cases reopened, asserting newly established rights to challenge convictions or sentences that came perhaps years before. If a Supreme Court decision expands rights under the Constitution’s Bill of Rights affecting criminal law, inmates in state and federal prison are naturally eager to make use of it. They may seek to do so if their cases are still pending in appeals courts for the first round of review (“direct review”), or in challenges they file after their convictions had become final – so-called “collateral review” — under state-provided post-conviction remedies, or under the federal writ of habeas corpus law, even for a state conviction.

The disparities that had resulted from the Court’s non-retroactivity doctrine in effect for more than a quarter of a century brought sustained criticism, inside the Court and from outside, and the Court began to see a need to do something about it. Its first major step – in Griffith v. Kentucky in 1987 — was to make new criminal law rulings retroactive for all cases in which convictions were not yet final and thus were at the initial appeal stage in state or federal courts (direct review cases).

But that left open the question of whether to make new criminal law rulings retroactive also to cases in which convictions had become final, and the inmates were seeking post-conviction relief.

The Court gave one answer – but it may have been only a partial answer – in the 1989 ruling in Teague v. Lane, laying down a formula for deciding whether a new criminal law ruling by the Justices would apply to cases in which convictions had become final. This formula was crafted for federal habeas cases pursued by state prisoners challenging state convictions based on new criminal law rulings by the Justices.

Ever since, the Teague formula has controlled retroactivity doctrine. Under Teague, the first issue is whether a Supreme Court ruling on criminal procedure lays down new law – one, that is, that breaks with past understandings. If it is not a new rule, and simply follows precedent, it is retroactive, and must be applied in pending habeas cases. But, if it is new under Teague’s definition, it does not apply to habeas challenges and the prisoner cannot take advantage of the new rights. . The decision, though, has two exceptions: a new criminal law ruling will apply to prior cases if it is either (a) a decision that puts specific conduct beyond the reach of criminal law, or (b) is a “watershed” ruling – that is, if it is necessary to avoid flawed convictions, or if it is necessary to preserve “bedrock principles” of fairness in criminal trials.

Since handing down the Teague decision, the Court has never found a criminal law ruling that would be retroactive if found to be new. And, it has indicated that it is not likely ever to find a new rule that would be retroactive.

Still, the Teague decision left a lingering question – the one now raised in Danforth v. Minnesota. If the Supreme Court has declared that one of its new criminal law rulings is not retroactive, is that binding on states? In other words, do the states, in developing their own criminal law, have the power under their own laws or legal principles to make a Supreme Court criminal law decision retroactive within their own borders in state cases? The courts of a number of states have reached conflicting rulings, and that dispute no doubt led the Supreme Court to step in, in the Danforth case.

In the Supreme Court’s most recent ruling refusing to make a criminal law decision retroactive, Whorton v. Bockting in early 2007, the Court declared that federal habeas petitioners could not take advantage of the Court’s ruling that out-of-court statements could not be used against an accused individual at the trial if the person who made such a statement cannot be at the trial and has not been subjected to cross-examination (that was the decision in Crawford v. Washington in 2004).

Stephen Danforth of St, Paul, Minn., was convicted of first-degree criminal sexual conduct for sexual abuse of a six-year-old boy – one of a series of convictions for alleged repeat offenses against young boys. The judge at the trial involved in Danforth’s appeal ruled that the boy was not competent to testify, but admitted as evidence a videotape of the boy discussing the assault in an interview at a sexual abuse center.

Danforth was convicted, and is now serving a 316-month sentence – 26 years and four months. His conviction in 1996 became final in 1999 when state courts completed review of his first, direct appeal. After the Supreme Court decided the Crawford case in 2004, Danforth filed a post-conviction challenge in state court. Since the boy had not been subjected to cross-examination, his testimony against Danforth should not have been admitted at the trial, Danforth’s lawyers argued. His case had become final before Crawford was decided, but Danforth’s counsel nevertheless argued that it should be made retroactive.

The Minnesota Supreme Court said no. The state court conceded that the U.S. Supreme Court “has not explicitly addressed retroactivity principles in state post-conviction proceedings.” But it concluded that, for those cases, too, the Teague formula applied. The Crawford decision was a new rule, and the exceptions to it did not apply, according to the state court. It acknowledged that other state courts had taken a different view, some of them concluding directly that a state may give a Supreme Court criminal law ruling “greater retroactive effect than that given by the Supreme Court.”

Seven months after the state court ruled against Danforth, the Supreme Court issued its decision in the Whorton case, concluding that Crawford was not retroactive, using the Teague formula. That was a “new rule,” and the exceptions did not apply, the Court said. Danforth’s appeal, by that time already at the Supreme Court, sought to test whether that was binding on the states.

Petition for Certiorari

Danforth’s public defender lawyer, in the petition filed on Dec. 6, 2006, posed two questions. One of those – subsequently answered in the Whorton decision – was whether Crawford did apply retroactively under Teague. That issue was resolved by the time the Justices examined Danforth’s appeal in mid-May, 2007. They granted review of the other question – whether state supreme courts were required to use the Teague standard for retroactivity, or could “apply state law or state constitution-based retroactivity tests” to apply new criminal law rulings to “a broader class of criminal defendants.” That was the issue granted on May 21, 2007. Danforth’s petition contended that the Teague decision was based upon the Court’s concern about the costs imposed on states if new criminal law rules were made retroactive, and its desire to protect the finality of state court cases. These are concerns, the petition asserted, only as to federal habeas corpus cases where federal courts are asked to second-guess state court rulings. State courts, it added, long have been free “to provide greater freedoms to their citizens than those provided by the federal Constitution.” The state of Minnesota’s response to the petition did not discuss the question of whether Teague standards governed in state cases. The Supreme Court asked for a further response to discuss that issue, and the state then contended that Teague was binding on the states. The Court, it added, was interested in that decision in creating uniform rules to apply to individuals in similar situations.

The Court then granted the petition, and the case was set for argument at 10 a.m. on Wednesday, Oct. 31 – the only case scheduled that day.

Merits Briefs

The written legal arguments on the merits by both Danforth and the state, and also by the amici briefs, focused quite heavily upon just what the Supreme Court had in mind in laying down a new version of retroactivity doctrine in Teague v. Lane.

What emerges from that ruling, Danforth’s brief contended, is that “the Teague rule is a procedural defense that may be invoked by states as parties to federal habeas corpus litigation.” This is “not a limitation on the power of the courts of the several states,” the brief said. It applies only to federal courts “sitting in habeas corpus review of state-court criminal convictions.” The decision was based on policy, not on the Constitution, according to the brief. The Justices had only a specific problem before them at that time: “the anomaly created when a federal court upsets a state-court conviction on the basis of constitutional commands not in force when the state-court conviction became final.” The Danforth brief argued that, while the Constitution requires that new rules of constitutional criminal procedure must apply to all cases pending on direct review when the rule is announced, “neither the Constitution nor non-constitutional federal law prohibits state courts or state legislatures from opening a forum for that state’s prisoners to challenge their convictions under all currently applicable constitutional rules, if a state chooses to do so.” Moreover, it added, the Supreme Court simply had no power “to place a limit on the actions of state courts.” Either the Teague formula derived from a reading of the federal habeas corpus statute, or from the Supreme Court’s supervisory power over lower federal courts. Neither is a source of authority to bind state courts, it concluded. Danforth is seeking relief under a state post-conviction law, and thus it is for the courts of Minnesota to decide whether a new criminal law rule is to apply to earlier cases, the brief said.

Minnesota’s merits brief argued that Teague and other retroactivity rulings by the Supreme Court emerged as “part of a larger body of law by which this Court defines the reach of its federal constitutional rulings.” When the Court lays down retroactivity doctrine, in any form, the state contended, it does so “independently of federal habeas, the supervisory authority of this Court, and the law of remedies.” It does so, it added, “because it is essential to vindicate federal interests of constitutional supremacy, judicial finality, and federalism….It is fundamental that a single sovereign’s law must be applied equally to all.” Leaving states free to fashion their own retroactivity rules on constitutional decisions, the state said, would lead inevitably to a multiplicity of state rules, meaning that, across the nation, different treatment would apply to individuals in the same situations legally. The state brief also had a cautionary word for prison inmates who would like Teague not to apply to state court post-conviction proceedings: if a state court made a new rule retroactive, even though the Supreme Court had said it was not retroactive for purposes of federal review, that would cut off federal habeas challenges in both direct review and collateral review situations.

The Danforth case has drawn some of the states into conflict over the advice they undertook to provide to the Justices. Eleven states and Puerto Rico side directly with the state of Minnesota, arguing as did Minnesota that Teague “set a general retroactivity standard for cases on collateral review, not merely a rule applicable only to federal habeas cases involving state prisoners.” Thus, those states say the states do not have the option of departing from Teague principles. Eight other states filed a brief “in support of neither party,” Their argument, however, turns out to be a stronger defense of the states’ prerogatives in the context of federalism. States are free, under the Constitution, to either expand retroactivity doctrine beyond what the Supreme Court has laid down in federal cases, or to contract it, making retroactivity rules that are narrower than the “federal counterpart such as Teague.” States have no duty even to have post-conviction procedures available, those states’ brief noted, so, when they do have it, they may shape it as they wish. It agreed with Danforth’s brief that Teague is not a constitutional ruling, but argued that Danforth was wrong in seeming to argue that states could only broaden retroactivity doctrine.

The American Civil Liberties Union, aside from supporting Danforth’s arguments, used its brief to argue that states must be left free to “recognize and enforce claims based on federal constitutional law.” They cannot do that if Teague binds them, it added. The National Association of Criminal Defense Lawyers, also supporting Danforth, stressed the view that Teague is a remedial decision, based on the interests in enforcing the federal habeas statute.

Analysis

The Court was unanimous – including the two newest members of the Court — in the latest ruling applying Teague (the Whorton decision, written by new Justice Samuel A. Alito, Jr.), once more refusing to find a new criminal law ruling to be retroactive. But that may suggest almost nothing about how it may react to the clearly open question posed in the Danforth case. In fact, the Justices are likely to be pulled in opposite directions in this case. Those Justices who favor the expansion of individual rights may find it difficult to embrace Teague as a binding constitutional mandate, curbing states’ opportunity to give inmates in those states the benefit of broadened readings of the Bill of Rights. The liberal dissenters in Teague (Justices William J. Brennan, Jr., and Thurgood Marshall) are gone, but their fervent opposition to restricting the application of rights may have some lingering ideological attraction. On the other hand, Justices so attracted might also be drawn to the notion that similar cases should be handled the same way – remembering what happened under retroactivity principles before Teague (e.g., the Miranda sequel) – and thus they could favor uniformity. Justices attracted to states’ rights (e.g., Justices Anthony M. Kennedy and Antonin Scalia, the only members of the Teague majority still on the Court) may find it difficult to see Teague extended beyond the federal habeas context, and thus could be drawn to the amicus brief by the eight states that want the states to have the option of going their own way. On the other hand, they may well have little interest in giving convicted criminals renewed opportunities to take advantage of expanded rights.