The Effect of a USSC Decision Declaring a Law Unconstitutional
Samuel Bagenstos
srbagenstos at wulaw.wustl.edu
Tue Mar 20 18:05:20 PDT 2007
Here's what the Court said in Bousley v. US (1998), which involved the retroactivity of a case called Bailey:
This distinction between substance and procedure is an important one in the habeas context. The Teague <http://web2.westlaw.com/find/default.wl?rs=WLW7.02&serialnum=1989027119&sv=Split&fn=_top&findtype=Y&tc=-1&tf=-1&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> doctrine is founded on the notion that one of the "principal functions of habeas corpus [is] 'to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted.' " 489 U.S., at 312, 109 S.Ct., at 1076 <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1989027119&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1076&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> (quoting Desist v. United States, 394 U.S. 244, 262, 89 S.Ct. 1030, 1040-1041, 22 L.Ed.2d 248 (1969) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1969132933&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1040&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> ). Consequently, unless a new rule of criminal procedure is of such a nature that "without [it] the likelihood of an accurate conviction is seriously diminished," 489 U.S., at 313, 109 S.Ct. at 1077, <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1989027119&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1077&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct " 'beyond the power of the criminal law -making authority to proscribe,' " id., at 311, 109 S.Ct., at 1075 <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1989027119&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1075&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> (quoting supra, 401 U.S., at 692, 91 S.Ct., at 1164), <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1971127047&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1164&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> necessarily carry a significant risk that a defendant stands convicted of "an act that the law does not make criminal." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1974127209&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=2305&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> . For under our federal system it is *621 only Congress, and not the courts, which can make conduct criminal. United States v. Lanier, 520 U.S. 259, 267-268, n. 6, 117 S.Ct. 1219, 1226, n. 6, 137 L.Ed.2d 432 (1997); <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&referencepositiontype=S&serialnum=1997078729&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1226&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812) <http://web2.westlaw.com/find/default.wl?rs=WLW7.02&serialnum=1800135753&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=780&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> . Accordingly, it would be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on our decision in Bailey <http://web2.westlaw.com/find/default.wl?rs=WLW7.02&serialnum=1995238890&sv=Split&fn=_top&findtype=Y&tc=-1&tf=-1&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner> in support of his claim that his guilty plea was constitutionally invalid.
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Tushnet
Sent: Tue 3/20/2007 7:59 PM
To: Vladeck, Steve ; Steven Jamar; ConLaw Prof
Subject: RE: The Effect of a USSC Decision Declaring a Law Unconstitutional
I'm at home without access to materials, but I'm pretty sure that there are cases both pre- and post-Teague saying that you get automatic relief on habeas if you're being held as the result of a conviction for an offense that the Constitution "says" cannot be made an offense. I have a vague sense that a case called Bailey is relevant here (I think it holds that relief is automatic if the government fails to prove an element of the offense and is therefore holding you even though you haven't violated the law).
-----Original Message-----
From: "Vladeck, Steve " <svladeck at law.miami.edu>
Subj: RE: The Effect of a USSC Decision Declaring a Law Unconstitutional
Date: Tue Mar 20, 2007 8:43 pm
Size: 3K
To: "Steven Jamar" <stevenjamar at gmail.com>; "ConLaw Prof" <Conlawprof at lists.ucla.edu>
Maybe I'm missing something, but, at least legally, isn't the answer the Court's messy Teague v. Lane (and progeny) jurisprudence on applying "new rules" retroactively on habeas, most recently rejecting retroactive application of Crawford in Whorton v. Bockting?
-steve
---
Stephen I. Vladeck
Associate Professor
University of Miami School of Law
G-385 Law Library
1311 Miller Drive
Coral Gables, FL 33146
(305) 284-5837
svladeck at law.miami.edu
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Steven Jamar
Sent: Tue 3/20/2007 8:33 PM
To: ConLaw Prof
Subject: Re: The Effect of a USSC Decision Declaring a Law Unconstitutional
Interesting question. I don't know the actual answer, but for the most part these mixed couples were not jailed because they were just denied a marriage license in the first place and then moved somewhere where they could get married legally.
And other such statutes -- like anti-gay statutes like in Lawrence were generally not enforced much and so not a lot of people affected, I would think.
But it is an interesting question that I hope someone has a definitive answer to.
Steve
On Mar 20, 2007, at 7:55 PM, DavidEBernstein at aol.com wrote:
Today, when discussing Loving v. Virginia, a student asked what happened to people who were in jail for interracial marriage when this decision came down? Were they released? Pardoned? Did they have to petition for release? Did they rot in jail? Were people who had this conviction on their record able to get their criminal record cleared? What happens more generally when a criminal statute is declared unconstitutional to those who had been convicted under it, and whose appeals were previously exhausted?
David
David E. Bernstein
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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-- Augustine of Hippo.
Steven Jamar
stevenjamar at gmail.com
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