After petitioner was arrested on armed robbery charges in
Louisiana, he was taken to the police station for questioning by
detectives. Upon being read his Miranda
rights, he said
that he did not wish to make any statement until he saw a lawyer,
and the interview was then terminated. But the next day, before
petitioner had communicated with a lawyer, one of the same
detectives, without inquiring whether petitioner had spoken with an
attorney and without any indication from petitioner that he was
willing to be interrogated, asked if he was willing to talk about
the case. After Miranda
rights were again read to
petitioner, he orally confessed that he had committed the
robberies. Over petitioner's objections, the confession was
admitted into evidence at his trial and he was convicted. In the
meantime, subsequent to petitioner's trial and convictions, and,
while his appeal to the Louisiana Supreme Court was pending, this
Court ruled in Edwards v. Arizona, 451 U.
, that a criminal defendant's rights under the
Fifth and Fourteenth Amendments were violated by the use of his
confession obtained by police-instigated interrogation -- without
counsel present -- after he requested an attorney. While
acknowledging the presence of an Edwards
Louisiana Supreme Court went on to hold that Edwards
not to be applied to petitioner's case.
ruling applies to cases
pending on direct appeal at the time Edwards
Pp. 470 U. S.
421 So. 2d
, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST
and O'CONNOR, JJ., joined, post,
p. 470 U. S. 61
REHNQUIST, J., filed a dissenting opinion, post,
470 U. S.
Page 470 U. S. 52
JUSTICE BLACKMUN delivered the opinion of the Court.
In Edwards v. Arizona, 451 U.
(1981), this Court ruled that a criminal
defendant's rights under the Fifth and Fourteenth Amendments were
violated by the use of his confession obtained by police-instigated
interrogation -- without counsel present -- after he requested an
attorney. This case presents the issue whether that ruling is
applicable to a case pending on direct appeal in a state court at
the time Edward was decided.
There is no dispute as to the facts. Petitioner Kevin Michael
Shea was charged in Louisiana with two counts of armed robbery. He
was arrested on July 2, 1979, and was taken to the police station
at Shreveport. There he was turned over to Detectives Smith and
Snell for questioning. His so-called Miranda
see Miranda v. Arizona, 384 U. S. 436
(1966), were read to him, and he signed a standard Miranda
card. He said, however, that he did not wish to make any statement
until he saw a lawyer. The interview thereupon was terminated.
The following afternoon, July 3, before petitioner had been in
communication with any lawyer, Detective Snell returned. He
informed petitioner that he was to be transferred from the city
jail to the parish jail. Without inquiring of petitioner whether he
had spoken with an attorney or whether he was indigent, and without
any indication from petitioner that he now was willing to be
interrogated, Snell asked if he wanted to talk about the case.
rights were read to petitioner and again he
signed a Miranda
card. He then orally confessed that he
had committed the two robberies.
The charges against petitioner came on for trial in due course
in the State District Court for Caddo Parish. At this point, the
two counts were severed. Prior to his trial before a jury on the
first count, petitioner formally moved to suppress the confession
of July 3. App. 2. At the trial, which
Page 470 U. S. 53
took place in 1980, the prosecution offered the confession in
evidence. The defense objected, but the objection was overruled and
the confession was admitted. Petitioner was convicted. He filed a
like suppression motion with respect to the second charge.
at 6. When this was denied, he withdrew his original
plea and entered a plea of guilty, with a reservation under state
law, see State v. Crosby, 338
So. 2d 584
, 588 (La.1976), of his right to appeal the denial of
the motion to suppress. App. 7-8.
On his appeal to the Supreme Court of Louisiana, petitioner
raised the issue of the trial court's error, in violation of
in admitting the confession. In its opinion, the
Louisiana tribunal cited this Court's decision in Edwards,
which had come down in the meantime but subsequent to petitioner's
trial and convictions. The Louisiana court acknowledged the
presence of an Edwards
violation. [Footnote 1
] It stated:
"In the present case, it is undisputed that the police did
initiate such an inquiry on July 3, after having been clearly
informed by the defendant on the previous evening that he would not
make any statements without counsel. Consequently, there was a
violation of the additional standard governing police interrogation
of a suspect imposed by Edwards v. Arizona.
. . . "
421 So. 2d
, 203 (1982). The court, however, went on to hold that
was not to be applied in petitioner's case:
"As this [error] occurred before the decision in
was rendered and we are convinced the United
Page 470 U. S. 54
Supreme Court will pronounce that decision is not retroactive,
we so hold in this case."
421 So. 2d at 204.
Petitioner successfully obtained a rehearing on the
retroactivity issue. On rehearing, although the Louisiana Supreme
Court again acknowledged, id.
at 210, that petitioner's
confession, under Edwards,
was not admissible, that court
adhered, over two dissents, to its position that Edwards
was not to be given retroactive effect. It stated that that
decision was a "clear break with the past," was a new ruling, and
was not retroactive. 421 So. 2d at 210.
Because of the importance of the issue and because of
conflicting decisions elsewhere, [Footnote 2
] we granted certiorari. 466 U.S. 957
the case at the center of the present
controversy, involved facts startlingly similar to those of the
present case. Police officers informed Edwards of his
rights and questioned him until he said he wanted
an attorney. At that point questioning ceased. The next day,
however, other officers visited Edwards, stated they wanted to talk
to him, informed him of his Miranda
rights, and obtained
an oral confession. This Court was positive and clear in its
"[A]lthough we have held that after initially being advised of
rights, the accused may himself
Page 470 U. S. 55
validly waive his rights and respond to interrogation, . . . the
Court has strongly indicated that additional safeguards are
necessary when the accused asks for counsel; and we now hold that,
when an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further
police-initiated custodial interrogation, even if he has been
advised of his rights. We further hold that an accused, such as
Edwards, having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or
conversations with the police."
(Footnote omitted.) 451 U.S. at 451 U. S.
-485. See also Rhode Island v. Innis,
446 U. S. 291
446 U. S. 298
(1980); Fare v. Michael C., 442 U.
, 442 U. S. 719
(1979); Michigan v. Mosley, 423 U. S.
, 423 U. S. 104
n. 10 (1975), and id.
at 423 U. S.
-111 (opinion concurring in result); Miranda v.
384 U.S. at 384 U. S.
The legal principle, thus, is established and is uncontested
here. The only question before us in this case is whether that
ruling applies retroactively with respect to petitioner's
convictions when the issue was raised and his case was pending and
undecided on direct appeal in the state system at the time
was decided. [Footnote 3
Page 470 U. S. 56
Two of this Court's recent cases bear importantly upon the
issue. The first is United States v. Johnson, 457 U.
(1982). In that case, we held that a decision of
this Court concerning Fourth Amendment rights was to be applied
retroactively to all convictions that were not yet final at the
time the decision was rendered, except in those situations that
would be clearly controlled by existing retroactivity precedents to
the contrary. Specifically, the Court held that Payton v. New
York, 445 U. S. 573
(1980), was to be applied retroactively to Johnson's case.
The Court in Johnson
found persuasive Justice Harlan's
earlier reasoning that application of a new rule of law to cases
pending on direct review is necessary in order for the Court to
avoid being in the position of a super-legislature, selecting one
of several cases before it to use to announce the new rule and then
letting all other similarly situated persons be passed by
unaffected and unprotected by the new rule. See Desist v.
United States, 394 U. S. 244
394 U. S. 256
(1969) (dissenting opinion);
Page 470 U. S. 57
Mackey v. United States, 401 U.
, 401 U. S. 675
(1971) (separate opinion). The Court noted that, at a minimum,
""all new' rules of constitutional law must . . . be applied
to all those cases which are still subject to direct review by this
Court at the time the `new' decision is handed down.""
United States v. Johnson,
457 U.S. at 457 U. S. 548
quoting from the dissent in Desist v. United States,
U.S. at 394 U. S. 258
the Court, "[t]o the extent necessary to
decide today's case, . . . embrace[d] Justice Harlan's views in
" 457 U.S. at 457 U. S. 562
It thus determined that, unless the rule is so clearly a break with
the past that prior precedents mandate nonretroactivity, a new
Fourth Amendment rule is to be applied to cases pending on direct
review when the rule was adopted.
In considering the retroactivity of Payton,
then concluded that the question was to be resolved fairly by
applying the Payton
ruling to all cases pending on direct
review when Payton
was decided. So to do (a) would provide
a principle of decisionmaking consonant with the Court's original
understanding in Linkletter v. Walker, 381 U.
(1965), and Tehan v. United States ex rel.
Shott, 382 U. S. 406
(1966), (b) would comport with this Court's judicial responsibility
to do justice to each litigant on the merits of his own case, and
(c) would further the goal of treating similarly situated
The second case is Solem v. Stumes, 465 U.
(1984). It, too, clearly involved an obvious
violation that took place in 1973, more than seven
years before Edwards.
After Stumes' state court conviction
had been finally affirmed by the Supreme Court of South Dakota, he
sought federal habeas relief. His petition for a writ, however, was
denied by the Federal District Court. While Stumes' appeal was
pending in the Court of Appeals, Edwards
was decided here.
The Court of Appeals then ruled that, under Edwards,
police had acted unconstitutionally. This
Page 470 U. S. 58
Court, by a divided vote, reversed, holding that
was not to be applied retroactively in the
situation. JUSTICE POWELL concurred in the
judgment, 465 U.S. at 465 U. S. 651
for he would not impose upon the State the costs that accrue by
retroactive application of a new rule of constitutional law on
habeas corpus; those costs, in his view, "generally far outweigh
the benefits of this application." Id.
at 465 U. S.
The primary difference between Johnson,
on the one
hand, and Stumes,
on the other, is the difference between
a pending and undecided direct review of a judgment of conviction
and a federal collateral attack upon a state conviction which has
become final. [Footnote 4
must acknowledge, of course, that Johnson
directly control the disposition of the present case. In
the Court specifically declined to address the
implications of its holding for a case in a constitutional area
other than the Fourth Amendment, or for a case in which a Fourth
Amendment issue is raised on collateral
Page 470 U. S. 59
attack. [Footnote 5
U.S. at 457 U. S. 562
We now conclude, however, that there is no reason to reach in this
case a result that is different from the one reached in
Johnson. See Mack v. Oklahoma,
459 U.S. 900
(1982). There is nothing about a Fourth Amendment rule that
suggests that in this context it should be given greater
retroactive effect than a Fifth Amendment rule. Indeed, a Fifth
Amendment violation may be more likely to affect the truthfinding
process than a Fourth Amendment violation. And Justice Harlan's
reasoning -- that principled decisionmaking and fairness to
similarly situated petitioners require application of a new rule to
all cases pending on direct review -- is applicable with equal
force to the situation presently before us. We hold that our
analysis in Johnson
is relevant for petitioner's
direct-review Fifth Amendment claim under Edwards.
entitled to the benefit of the ruling in that case.
Other arguments that have been made in support of the judgment
below are not persuasive. First, it is said that drawing a
distinction between a case pending on direct review and a case on
collateral attack produces inequities and injustices that are not
any different from those that Johnson
purported to cure.
The argument is that the litigant whose Edwards
not be considered because it is presented on collateral review will
be just as unfairly treated as the direct-review litigant whose
claim would be bypassed were Edwards
not the law. The
distinction, however, properly
Page 470 U. S. 60
rests on considerations of finality in the judicial process. The
one litigant already has taken his case through the primary system.
The other has not. For the latter, the curtain of finality has not
been drawn. Somewhere, the closing must come. JUSTICE POWELL
stressed this in his opinion concurring in the judgment in
Solem v. Stumes,
465 U.S. at 465 U. S.
-654. He said specifically: "[I]t is particularly
difficult in such cases to justify imposing upon the State the
costs of collateral review. These are not insubstantial."
at 465 U. S.
Next, it is said that the application of Edwards
cases pending on direct review will result in the nullification of
many convictions, and will relegate prosecutors to the difficult
position of having to retry cases concerning events that took place
years ago. We think this concern is overstated. We are given no
empirical evidence in its support, and Louisiana states that any
such evidence is unavailable. Brief for Respondent 11. We note,
furthermore, that several courts have applied Edwards
cases pending on direct review without expressing concern about
lapse of time or retroactivity, and without creating any apparent
administrative difficulty. See n
And if a case is unduly slow in
winding its way through a State's judicial system, that could be as
much the State's fault as the defendant's, and should not serve to
penalize the defendant.
In addition, it is said that in every case, Edwards
alone excepted, reliance on existing law justifies the
nonapplication of Edwards.
But, as we have pointed out,
there is no difference between the petitioner in Edwards
and the petitioner in the present case. If the Edwards
principle is not to be applied retroactively, the only way to
dispense equal justice to Edwards and to Shea would be a rule that
confined the Edwards
principle to prospective application
unavailable even to Edwards himself.
Finally, it is said that the Edwards
rule is only
prophylactic in character, and is not one designed to enhance
accuracy in criminal jurisprudence. This argument, of course,
Page 470 U. S. 61
taken from Michigan v. Payne, 412 U. S.
(1973), where the retroactivity of North Carolina
v. Pearce, 395 U. S. 711
(1969), was under consideration. The argument, we feel, is fully
answered by the decision in United States v. Johnson,
by what we have said above in this opinion.
The judgment of the Supreme Court of Louisiana is reversed, and
the case is remanded to that court for further proceedings not
inconsistent with this opinion.
It is so ordered.
We thus are not confronted in this case with any issue as to
whether petitioner had invoked his right to counsel in the first
instance, see Smith v. Illinois, 469 U. S.
(1984), or as to whether, having done so, it was he
who had initiated further conversation and interrogation, see
Oregon v. Bradshaw, 462 U. S. 1039
(1983), and the several opinions therein. A violation of the
principle, all parties here agree, took place in
the instant case.
See, e.g., State v. Brown, 317 N.W.2d
, 715 (Minn.1982); State v. Taylor,
703, 708, 643 P.2d
(1982). Other courts, without addressing the retroactivity issue,
have applied Edwards
to cases pending on direct appeal
when the decision was announced. See, e.g., State v.
130 Ariz. 570, 575-576, 637 P.2d 1073, 1079 (App.1981);
People v. Cerezo, 635 P.2d
, 199-201 (Colo.1981); State v. Brezee,
162, 657 P.2d 1044
(1983); State v. Carty,
231 Kan. 282, 644 P.2d 407
(1982); People v. Paintman,
412 Mich. 518, 315 N.W.2d
, cert. denied, 456 U. S. 995
Had petitioner's case been pending here on certiorari when
was announced, it surely would have been remanded,
as were other such cases, for reconsideration in the light of
Edwards. See Blakney v. Montana,
451 U.S. 1013
(1981); White v. Finkbeiner,
451 U.S. 1013 (1981) (on
federal habeas); Leuschner v. Maryland,
451 U.S. 1014
(1981); Monroe v. Idaho,
451 U.S. 1014 (1981);
Wantland v. Maryland,
451 U.S. 1014 (1981); James v.
451 U.S. 1014 (1981). This Court's actions in 1981
in these cases indicated no conclusion on its part that
was inapplicable to other cases pending on direct
review. In all six of these cases, the questioning, of course,
on remand, Edwards
was applied without discussion of
retroactivity. See State v. Monroe,
103 Idaho 129, 645
P.2d 363 (1982); State v. Blakney,
197 Mont. 131, 641 P.2d
While not conclusive, it is of interest to note that this Court,
on at least two occasions in addition to Solem v. Stumes,
465 U. S. 638
(1984), discussed infra
in the text, already has
in a retroactive setting, that is, in
its application to custodial inquiries that took place before
was decided here. See Wrick v. Fields,
459 U. S. 42
(inquiry in 1974); Oregon v. Bradshaw, 462 U.
(1983) (inquiry in 1980). Bradshaw,
like the instant case, was on direct review. This Court considered
and decided the Edwards
issue in each of those cases with
no comment or expressed concern about retroactivity. Our
examination of the appendices and briefs in those two cases reveals
that the retroactivity issue was not raised. Its underlying
presence, however, was not sufficiently disturbing to cause the
Court to mention it sua sponte.
In Solem v. Stumes,
the Court observed:
"At a minimum, nonretroactivity means that a decision is not to
be applied in collateral review of final convictions. For purposes
of this case, that is all we need decide about
465 U.S. at 465 U. S.
Of course, under the rationale of our decision today, the
question is whether the conviction became final before
was decided. As we hold, if a case was pending on
direct review at the time Edwards
was decided, the
appellate court must give retroactive effect to Edwards,
subject, of course, to established principles of waiver, harmless
error, and the like. If it does not, then a court conducting
collateral review of such a conviction should rectify the error and
retroactively. This is consistent with
Justice Harlan's view that cases on collateral review ordinarily
should be considered in light of the law as it stood when the
conviction became final. See Mackey v. United States,
401 U. S. 667
401 U. S. 689
(1971) (Harlan, J., concurring in judgment). See also Hankerson
v. North Carolina, 432 U. S. 233
432 U. S. 248
(1977) (POWELL, J., concurring in judgment). Thus, the result of
our decisions concerning the retroactive applicability of the
ruling in Edwards v. Arizona
is fully congruent with both
aspects of the approach to retroactivity propounded by Justice
Harlan in his concurrence in Mackey.
The Court in Johnson
also declined to address
situations clearly controlled by existing retroactivity precedents,
such as where the new rule of law is so clear a break with the past
that it has been considered nonretroactive almost automatically.
Whatever the merits of a different retroactivity rule for cases of
that kind may be, we have no need to be concerned with the question
here. In Solem v. Stumes,
the Court recognized that
was "not the sort of clear break' that is
automatically nonretroactive." 465 U.S. at 465 U. S.
JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR join, dissenting.
Last Term, in Solem v. Stumes, 465 U.
(1984), we held that the rule announced by the
Court in Edwards v. Arizona, 451 U.
(1981), should not be applied retroactively in
collateral attacks on criminal convictions. We concluded that the
prophylactic purpose of the Edwards
rule, the justifiable
failure of police and prosecutors to foresee the Court's decision
and the substantial disruption of the criminal
justice system that retroactive application of Edwards
would entail all indicated the wisdom of holding Edwards
nonretroactive. Today, however, the majority concludes that,
notwithstanding the substantial reasons for restricting the
application of Edwards
to cases involving interrogations
that postdate the Court's opinion in Edwards,
rule must be applied retroactively to all cases in
which the process of direct appeal had not yet been completed when
was decided. In so holding, the majority
apparently adopts a rule long advocated by a shifting minority of
Justices and endorsed in limited circumstances by the majority in
United States v. Johnson, 457 U.
(1982): namely, the rule that any new
constitutional decision -- except, perhaps, one that constitutes a
"clear break with the past" -- must be applied to all cases pending
on direct appeal at the time it is handed down.
Page 470 U. S. 62
Two concerns purportedly underlie the majority's decision. The
first is that retroactivity is somehow an essential attribute of
judicial decisionmaking, and that, when the Court announces a new
rule and declines to give it retroactive effect, it has abandoned
the judicial role and assumed the function of a legislature -- or,
to use the term Justice Harlan employed in describing the problem,
a "super-legislature." Desist v. United States,
394 U. S. 244
394 U. S. 259
(1969) (Harlan, J., dissenting). The second (and not completely
unrelated) concern is fairness. It is the business of a court, the
majority reasons, to treat like cases alike; accordingly, it is
unfair for one litigant to receive the benefit of a new decision
when another, identically situated, is denied the same benefit. The
majority's concerns are no doubt laudable, but I cannot escape the
conclusion that the rule they have spawned makes no sense.
As a means of avoiding what has come to be known as the
super-legislature problem, the rule announced by the majority is
wholly inadequate. True, the Court is not and cannot be a
legislature, super or otherwise. But I should think that concerns
about the supposed usurpation of legislative authority by this
Court generally go more to the substance of the Court's decisions
than to whether or not they are retroactive. Surely those who
believe that the Court has overstepped the bounds of its legitimate
authority in announcing a new rule of constitutional law will find
little solace in a decision holding the new rule retroactive. If a
decision is in some sense illegitimate, making it retroactive is a
useless gesture that will fool no one. If, on the other hand, the
decision is a salutary one, but one whose purposes are ill-served
by retroactive application, retroactivity may be worse than
useless, imposing costs on the criminal justice system that will
likely be uncompensated for by any perceptible gains in "judicial
The futility of this latest attempt to use retroactivity
doctrine to avoid the super-legislature difficulty is highlighted
Page 470 U. S. 63
the majority's unwillingness to commit itself to the logic of
its position. For even as it maintains that retroactivity is
essential to the judicial function, today's majority, like the
majority in Johnson, supra,
continues to hold out the
possibility that a "really" new rule -- one that marks a clear
break with the past -- may not have to be applied retroactively
even to cases pending on direct review at the time the new decision
is handed down. See ante
at 470 U. S. 57
470 U. S. 59
5; Johnson, supra,
at 457 U. S.
-550, 457 U. S.
-554. Of course, if the majority were truly concerned
with the super-legislature problem, it would be "clear break"
decisions that would trouble it the most. Indeed, one might expect
that a Court as disturbed about the problem as the majority
purports to be would swear off such decisions altogether, not
reserve the power both to issue them and to decline to apply them
retroactively. In leaving open the possibility of an exception for
"clear break" decisions, the majority demonstrates the emptiness of
its proposed solution to the super-legislature problem.
The claim that the majority's rule serves the interest of
fairness is equally hollow. Although the majority finds it
intolerable to apply a new rule to one case on direct appeal but
not to another, it is perfectly willing to tolerate disparate
treatment of defendants seeking direct review of their convictions
and prisoners attacking their convictions in collateral
proceedings. As I have stated before, see Johnson, supra,
at 457 U. S.
-568 (WHITE, J., dissenting); Williams v. United
States, 401 U. S. 646
401 U. S.
-659 (1971) (plurality opinion), it seems to me that
the attempt to distinguish between direct and collateral challenges
for purposes of retroactivity is misguided. Under the majority's
rule, otherwise identically situated defendants may be subject to
different constitutional rules, depending on just how long ago
now-unconstitutional conduct occurred and how quickly cases proceed
through the criminal justice system. The disparity is no different
in kind from that which occurs when the benefit of a new
constitutional rule is retroactively afforded to the defendant in
Page 470 U. S. 64
case it is announced, but to no others; the Court's new approach
equalizes nothing except the numbers of defendants within the
disparately treated classes.
The majority recognizes that the distinction between direct
review and habeas is problematic, but justifies its differential
treatment by appealing to the need to draw "the curtain of
at 470 U. S. 60
those who were unfortunate enough to have exhausted their last
direct appeal at the time Edwards
was decided. Yet the
majority offers no reasons for its conclusion that finality should
be the decisive factor. When a conviction is overturned on direct
appeal on the basis of an Edwards
violation, the remedy
offered the defendant is a new trial at which any inculpatory
statements obtained in violation of Edwards
excluded. It is not clear to me why the majority finds such a
burdensome remedy more acceptable when it is imposed on the State
on direct review than when it is the result of a collateral attack.
The disruption attendant upon the remedy does not vary depending on
whether it is imposed on direct review or habeas; [Footnote 2/1
Page 470 U. S. 65
if the remedy must be granted to defendants on direct appeal,
there is no strong reason to deny it to prisoners attacking their
convictions collaterally. Conversely, if it serves no worthwhile
purpose to grant the remedy to a defendant whose conviction was
final before Edwards,
it is hard to see why the remedy
should be available on direct review.
The underlying flaw of the majority's opinion is its failure to
articulate the premises on which the retroactivity doctrine it
announces actually rests. In recognizing that a decision marking a
clear break from the past may not be retroactive, and in holding
that the concern of finality trumps considerations of fairness that
might otherwise dictate retroactivity in collateral proceedings,
the majority implicitly recognizes that there is, in fact, more at
issue in decisions involving retroactivity than treating like cases
alike. In short, the majority recognizes that there are
why certain decisions ought not be retroactive.
But the rules the majority announces fail to reflect any thoughtful
inquiry into what those reasons might be. By contrast, the
principles of retroactivity set forth in Linkletter v.
Walker, 381 U. S. 618
(1965), and most recently applied in Solem v. Stumes,
465 U. S. 638
(1984), provide a rational framework for thinking about the
question whether retroactive application of any particular decision
makes sense -- that is, whether the benefits of retroactivity
outweigh its costs. Because the Court has already determined
Page 470 U. S. 66
that the relevant considerations set forth in
(the purpose of the new rule, the extent of law
enforcement officials' justifiable reliance on the prior rule, and
the effects on the criminal justice system of retroactivity)
dictate nonretroactive application of the rule in Edwards,
I cannot join in the majority's conclusion that that rule should be
applied retroactively to cases pending on direct review at the time
of our decision in Edwards.
More importantly, I cannot
concur in the approach to retroactivity adopted by today's majority
-- an approach that, if our precedents regarding the
nonretroactivity of decisions marking a clear break with the past
remain undisturbed, merely adds a confusing and unjustifiable
addendum to our retroactivity jurisprudence. [Footnote 2/2
I respectfully dissent.
The distinction between direct review and collateral attack may
bear some relationship to the recency of the crime; thus, to the
extent that the difficulties presented by a new trial may be more
severe when the underlying offense is more remote in time, it may
be that new trials would tend to be somewhat more burdensome in
habeas cases than in cases involving reversals on direct appeal.
However, this relationship is by no means direct, for the speed
with which cases progress through the criminal justice system may
vary widely. Thus, if the Court is truly concerned with treating
like cases alike, it could accomplish its purpose far more
precisely by applying new constitutional rules only to conduct of
appropriately recent vintage. I assume, however, that no one would
argue for an explicit "5-year rule," for example.
The notion that a new trial is a significantly less burdensome
remedy when it is imposed on direct review than when it is ordered
on habeas is also called into serious question by the facts of this
particular case. The remedy the Court grants the petitioner is a
new trial that will be held almost six years after the commission
of the offense with which he is charged. I have no doubt that there
are many prisoners whose convictions were final at the time
was decided who could be given a new trial as
conveniently as petitioner.
Of course, it will be less burdensome in the aggregate to apply
only to cases pending when Edwards
decided than to give it full retroactive effect; by the same token,
it would be less burdensome to apply Edwards
to all cases involving defendants whose last names begin with the
letter "S" than to make the decision fully retroactive. The
majority obviously would not countenance the latter course, but its
failure to identify any truly relevant distinction between cases on
direct appeal and cases raising collateral challenges makes the
rule it announces equally indefensible.
After today, a decision that is foreshadowed -- not new at all
-- is applicable both on direct review and in collateral
proceedings. A decision that makes law that is somewhat new is to
apply to all cases on direct review, but will generally not be a
basis for collateral relief. Really new decisions breaking with the
past, however, will likely apply neither in collateral proceedings
nor to cases on direct review other than that in which the decision
is announced. The majority thus recognizes for purposes of
retroactivity doctrine three categories of decisions: not new,
newish, and brand new. I had hoped that, after plenary review, we
could do better than that.
JUSTICE REHNQUIST, dissenting.
I would be willing to join the result reached by the Court in
this case if the majority were willing to adopt both aspects of the
approach to retroactivity propounded by Justice Harlan in his
concurrence in Mackey v. United States, 401 U.
, 401 U. S. 675
(1971). Under his approach, new constitutional rules prescribed by
this Court for the conduct of criminal prosecutions would apply
retroactively to all cases on direct appeal at the time the new
rule was announced and, with narrow exceptions, would not apply in
collateral proceedings challenging convictions that had become
final before the new rule was announced. I will not attempt to
summarize the justifications
Page 470 U. S. 67
for this approach so thoughtfully articulated by Justice
Because the Court apparently is not willing to adopt in entirety
Justice Harlan's bright-line distinction between direct appeals and
collateral attacks, I join JUSTICE WHITE's dissent, agreeing with
him that there is little logic to the Court's analysis and its
rejection of the sound reasons given in Solem v. Stumes,
465 U. S. 638
(1984), for making Edwards v. Arizona, 451 U.
(1981), nonretroactive. *
* While the results reached by the Court in this case and in
happen to be the same as they would have been under
Justice Harlan's approach, the Court's analysis in Solem
is not the same as his approach. Only JUSTICE POWELL, concurring in
the judgment in Solem,
followed the Mackey
concurrence. The rationale of Justice Harlan's approach requires
that the Court apply it in all cases, not just in those cases in
which a majority favors the result it yields; and for now it does
not appear that the Court is prepared to take this course.