In
Batson v. Kentucky, 476 U. S.
79, the Court ruled that a state criminal defendant
could establish a
prima facie case of racial
discrimination violative of the Fourteenth Amendment, based on the
prosecution's use of peremptory challenges to strike members of the
defendant's race from the jury venire, and that, once the defendant
had made the
prima facie showing, the burden shifted to
the prosecution to come forward with a neutral explanation for
those challenges. These cases concern the question whether that
ruling applies to cases pending on direct review or not yet final
when
Batson was decided. In No. 85-5221, petitioner's
robbery conviction in a Kentucky state court was affirmed by the
Kentucky Supreme Court, which rejected petitioner's claim that the
prosecutor's use of peremptory challenges to strike prospective
black jurors deprived petitioner, a black person, of guaranteed
equal protection. Similarly, in No. 85-5731, petitioner's
conviction in Federal District Court on narcotics charges was
affirmed by the Court of Appeals, which rejected petitioner's claim
that the prosecutor's use of peremptory challenges to exclude black
jurors, combined with his call to the jury clerk, violated the
right of petitioner, a black person, to an impartial jury. The
petitions for certiorari in both cases were filed in this Court
before
Batson was decided.
Held: A new rule for the conduct of criminal
prosecutions, such as the ruling in
Batson, applies
retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which the
new rule constitutes a "clear break" with the past. Pp.
479 U. S.
320-328.
(a) Failure to apply a newly declared constitutional rule to
criminal cases pending on direct review violates basic norms of
constitutional adjudication. After this Court has announced a new
rule in the case selected for review, the integrity of judicial
review requires the Court to apply that rule to all similar cases
pending on direct review. In addition, selective application of a
new rule violates the principle of treating similarly situated
defendants the same. Pp.
479 U. S.
320-326.
(b) An exception to the general principle that a new rule
governing criminal procedure should be retroactive to cases pending
on direct review,
Page 479 U. S. 315
based solely on the fact that the new rule is a "clear break"
with the past, is inappropriate. The principle that this Court does
not disregard current law when it adjudicates a case pending before
it on direct review applies regardless of the specific
characteristics of the new rule announced by the Court. Further,
the use of a "clear break" exception creates the same problem of
not treating similarly situated defendants the same. The fact that
the new rule may constitute a clear break with the past has no
bearing on the "actual inequity that results" when only one of many
similarly situated defendants receives the benefit of the new rule.
Pp.
479 U. S.
326-328.
No. 85-5221, and No. 85-5731, 770 F.2d 912, reversed and
remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, STEVENS, and SCALIA, JJ., joined.
POWELL, J., filed a concurring opinion,
post, p.
479 U. S. 328.
REHNQUIST, C.J., filed a dissenting opinion,
post, p.
479 U. S. 329.
WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and O'CONNOR, J., joined,
post, p.
479 U. S.
329.
Page 479 U. S. 316
JUSTICE BLACKMUN delivered the opinion of the Court.
These cases, one state and one federal, concern the
retrospective application of
Batson v. Kentucky,
476 U. S. 79
(1986).
In
Batson, 476 U.S. at
476 U. S. 96-98,
this Court ruled that a defendant in a state criminal trial could
establish a
prima facie case of racial discrimination
violative of the Fourteenth Amendment, based on the prosecution's
use of peremptory challenges to strike members of the defendant's
race from the jury venire, and that, once the defendant had made
the
prima facie showing, the burden shifted to the
prosecution to come forward with a neutral explanation for those
challenges. In the present cases, we consider whether that ruling
is applicable to litigation pending on direct state or federal
review or not yet final when
Batson was decided. We answer
that question in the affirmative.
I
A.
No. 85-5221. Petitioner Randall Lamont Griffith, a
black person, was indicted in 1982 in the Circuit Court of
Jefferson County, Ky. (the same court where
Batson was
tried), on charges of first-degree robbery, theft by unlawful
taking,
Page 479 U. S. 317
and being a persistent felony offender in the second degree.
App. 2. On the first day of trial, the prosecution and defense
attorneys conducted
voir dire examination of the jury
venire and exercised their peremptory challenges. [
Footnote 1] The prosecution used four of its
five allotted challenges to strike four of the five prospective
black jurors. The defense used eight of its allotted nine
challenges to strike prospective white jurors. There were two
duplicate strikes. The two extra jurors who remained because of the
duplicate strikes, one of whom was a black person, then were
removed by random draw. [
Footnote
2] Thus, no black person remained on the jury.
Id. at
5, 12-13.
Defense counsel expressed concern that Griffith was to be tried
by an all-white jury. He asked the court to request the prosecutor
to state his reasons for exercising peremptory challenges against
the four prospective black jurors. The request was refused.
Id. at 13. Counsel then moved for discharge of the panel,
alleging that the prosecutor's use of peremptory challenges to
remove all but one of the prospective black jurors constituted a
violation of Griffith's Sixth and Fourteenth Amendment rights.
Id. at 15. The court denied the motion. The jury returned
a verdict of guilty on the charge of first-degree robbery, and
fixed petitioner's punishment at 10 years' imprisonment. [
Footnote 3] The jury then found
petitioner guilty of being a persistent felony offender, and,
pursuant
Page 479 U. S. 318
to Ky.Rev.Stat. § 532.080 (1985), enhanced his sentence to 20
years' imprisonment.
The Supreme Court of Kentucky, with an unpublished memorandum
opinion, affirmed the judgment of conviction. App. 17. The court
rejected petitioner's claim that the prosecutor's use of peremptory
challenges deprived him of guaranteed equal protection. It relied
on
Swain v. Alabama, 380 U. S. 202
(1965), where this Court ruled that a black defendant did not
establish a violation of the Equal Protection Clause solely on
proof of the prosecutor's use of peremptory challenges to strike
black jurors at the defendant's own trial.
Id. at
380 U. S.
221-222. The Court noted, however, that an inference of
purposeful discrimination could be raised where a prosecutor had
engaged in a pattern of challenging black jurors in a series of
cases.
See id. at
380 U. S. 223-224. The Kentucky court concluded that
Swain disposed of petitioner's claim and it "decline[d] to
go further than the
Swain court." App. 18.
Griffith timely filed here a petition for a writ of certiorari.
While his petition was pending, this Court decided
Batson v.
Kentucky, supra, where it rejected a portion of the reasoning
of
Swain v. Alabama on which the Kentucky court had
relied. 476 U.S. at
476 U. S. 89-96.
Two months later, in
Allen v. Hardy, 478 U.
S. 255 (1986) (per curiam), we held that the ruling in
Batson was not to be applied retroactively to a case on
federal habeas review. We granted certiorari in Griffith's case,
476 U.S. 1157 (1986), limited to the question whether the ruling in
Batson applies retroactively to a state conviction pending
on direct review at the time of the
Batson decision.
B.
No. 85-5731. In 1984, petitioner Willie Davis Brown,
a black person, was convicted by a jury in the United States
District Court for the Western District of Oklahoma on narcotics
charges. During jury selection, two venire panels were assembled. 6
Record 2-10. [
Footnote 4] There
were six prospective
Page 479 U. S. 319
black jurors in the total venire. Four were excused for cause by
the court, and the other two were excused by the prosecutor's use
of peremptory challenges.
Id. at 20. [
Footnote 5] Defense counsel objected to the
prosecutor's use of peremptory challenges to strike the black
persons from the jury, claiming that petitioner was thereby denied
a jury representative of the community.
Id. at 20-21. No
action was taken in response to that objection.
As prospective jurors were being assembled for the second venire
panel, the prosecutor called the jury clerk to inquire about the
racial composition of the additional venire. At a hearing held
later while the jury was deliberating, there was evidence that the
prosecutor said to the clerk: "We would like to have as few black
jurors as possible." App. 51. The clerk testified, however, that
she remembered the prosecutor's comment to be: "Don't get any
blacks on this jury."
Id. at 38-39. The clerk went on to
say that she did not alter the jury selection in any way in
response to the prosecutor's comment.
Id. at 44-45. The
District Court concluded that the prosecutor's contact with the
jury clerk "would have to be looked at and dealt with by someone,"
id. at 44, inasmuch as it fell "into the category of
possible prosecutorial misconduct,"
id. at 46, but that it
did not affect the integrity of the selection of the jury.
Id. at 45. The court therefore concluded that a new trial
would not be necessary if the jury convicted petitioner.
Id. at 46.
The United States Court of Appeals for the Tenth Circuit
affirmed the judgment of conviction. 770 F.2d 912 (1985). It
rejected Brown's claim that the prosecutor's use of peremptory
challenges to exclude prospective black jurors,
Page 479 U. S. 320
combined with his call to the jury clerk, violated petitioner's
right to an impartial jury. The court concluded that Brown had not
met
Swain's threshold requirement that petitioner must
show a systematic and intentional course of conduct by the
prosecutor calculated to exclude black jurors in "case after case."
770 F.2d at 914. It further concluded that the communication by the
prosecutor to the jury clerk did not suggest a pattern of
systematic exclusion of black jurors. Although the court observed
that the prosecutor's action was "improper" and "must be
condemned,"
ibid., it concluded, as had the District
Court, that the prosecutor's request had no effect on the selection
of Brown's jury.
Prior to our
Batson decision, petitioner timely filed
with this Court a petition for a writ of certiorari. We granted
certiorari, 476 U.S. 1157 (1986), again limited to the question
whether the ruling in
Batson applies retroactively to a
federal conviction then pending on direct review. The case was set
for argument in tandem with Griffith's case.
II
Twenty-one years ago, this Court adopted a three-pronged
analysis for claims of retroactivity of new constitutional rules of
criminal procedure.
See Linkletter v. Walker, 381 U.
S. 618 (1965). In
Linkletter, the Court held
that
Mapp v. Ohio, 367 U. S. 643
(1961), which extended the Fourth Amendment exclusionary rule to
the States, would not be applied retroactively to a state
conviction that had become final before
Mapp was decided.
The Court explained that "the Constitution neither prohibits nor
requires retrospective effect" of a new constitutional rule, and
that a determination of retroactivity must depend on "weigh[ing]
the merits and demerits in each case." 381 U.S. at
381 U. S. 629.
The Court's decision not to apply
Mapp retroactively was
based on
"the purpose of the
Mapp rule; the reliance placed upon
the [previous] doctrine; and the effect on the administration of
justice of a retrospective application of
Mapp."
381 U.S. at
381 U. S. 636.
See also
Page 479 U. S. 321
Stovall v. Denno, 388 U. S. 293,
388 U. S. 297
(1967) (retroactivity depends on "(a) the purpose to be served by
the new standards, (b) the extent of the reliance by law
enforcement authorities on the old standards, and (c) the effect on
the administration of justice of a retroactive application of the
new standards").
Shortly after the decision in
Linkletter, the Court
held that the three-pronged analysis applied both to convictions
that were final, [
Footnote 6]
and to convictions pending on direct review.
See Johnson v. New
Jersey, 384 U. S. 719,
384 U. S. 732
(1966);
Stovall v. Denno, 388 U.S. at
388 U. S. 300.
In the latter case, the Court concluded that, for purposes of
applying the three factors of the analysis, "no distinction is
justified between convictions now final . . . and convictions at
various stages of trial and direct review."
Ibid. Thus, a
number of new rules of criminal procedure were held not to apply
retroactively either to final cases or to cases pending on direct
review.
See, e.g., Stovall v. Denno, supra; DeStefano v.
Woods, 392 U. S. 631,
392 U. S. 635,
n. 2 (1968);
Desist v. United States, 394 U.
S. 244,
394 U. S.
253-254 (1969);
Daniel v. Louisiana,
420 U. S. 31 (1975)
(per curiam).
In
United States v. Johnson, 457 U.
S. 537 (1982), however, the Court shifted course.
[
Footnote 7] In that case, we
reviewed at some length the history of the Court's decisions in the
area of retroactivity and concluded, in the words of Justice
Harlan: "
"[R]etroactivity" must be rethought.'" Id. at
457 U. S. 548
(quoting Desist v. United States, 394 U.S. at 394 U. S. 258
(dissenting opinion)). Specifically, we concluded that the
retroactivity
Page 479 U. S. 322
analysis for convictions that have become final must be
different from the analysis for convictions that are not final at
the time the new decision is issued. [
Footnote 8] We observed that, in a number of separate
opinions since
Linkletter, various Members of the
Court
"have asserted that, at a minimum, all defendants whose cases
were still pending on direct appeal at the time of the law-changing
decision should be entitled to invoke the new rule."
457 U.S. at
457 U. S. 545,
and n. 9 (collecting opinions). [
Footnote 9] The rationale for distinguishing between cases
that have become final and those that have not, and for applying
new rules retroactively to cases in the latter category, was
explained at length by Justice Harlan in
Desist v. United
States, 394 U.S. at
394 U. S. 256
(dissenting opinion), and in
Mackey v. United States,
401 U. S. 667,
401 U. S. 675
(1971) (opinion concurring in judgment). In
United States v.
Johnson, we embraced to a significant extent the comprehensive
analysis presented by Justice Harlan in those opinions.
In Justice Harlan's view, and now in ours, failure to apply a
newly declared constitutional rule to criminal cases pending on
direct review violates basic norms of constitutional adjudication.
First, it is a settled principle that this Court adjudicates only
"cases" and "controversies."
See U.S. Const., Art. III, §
2. Unlike a legislature, we do not promulgate new rules of
constitutional criminal procedure on a broad basis. Rather, the
nature of judicial review requires that we adjudicate specific
cases, and each case usually becomes the vehicle for announcement
of a new rule. But after we have
Page 479 U. S. 323
decided a new rule in the case selected, the integrity of
judicial review requires that we apply that rule to all similar
cases pending on direct review. Justice Harlan observed:
"If we do not resolve all cases before us on direct review in
light of our best understanding of governing constitutional
principles, it is difficult to see why we should so adjudicate any
case at all. . . . In truth, the Court's assertion of power to
disregard current law in adjudicating cases before us that have not
already run the full course of appellate review is quite simply an
assertion that our constitutional function is not one of
adjudication, but in effect of legislation."
Mackey v. United States, 401 U.S. at
401 U. S. 679
(opinion concurring in judgment).
As a practical matter, of course, we cannot hear each case
pending on direct review and apply the new rule. But we fulfill our
judicial responsibility by instructing the lower courts to apply
the new rule retroactively to cases not yet final. Thus, it is the
nature of judicial review that precludes us from
"[s]imply fishing one case from the stream of appellate review,
using it as a vehicle for pronouncing new constitutional standards,
and then permitting a stream of similar cases subsequently to flow
by unaffected by that new rule."
Ibid. See United States v. Johnson, 457 U.S.
at
457 U. S.
546-547,
457 U. S.
555.
Second, selective application of new rules violates the
principle of treating similarly situated defendants the same.
See Desist v. United States, 394 U.S. at
394 U. S.
258-259 (Harlan, J., dissenting). As we pointed out in
United States v. Johnson, the problem with not applying
new rules to cases pending on direct review is
"the
actual inequity that results when the Court
chooses which of many similarly situated defendants should be the
chance beneficiary"
of a new rule. 457 U.S. at
457 U. S. 556,
n. 16 (emphasis in original). Although the Court had tolerated this
inequity for a time by not applying new rules retroactively to
cases on direct review, we noted: "The time for toleration has come
to an end."
Ibid.
Page 479 U. S. 324
In
United States v. Johnson, our acceptance of Justice
Harlan's views led to the holding that,
"subject to [certain exceptions], a decision of this Court
construing the Fourth Amendment is to be applied retroactively to
all convictions that were not yet final at the time the decision
was rendered."
Id. at
457 U. S. 562.
The exceptions to which we referred related to three categories in
which we concluded that existing precedent established threshold
tests for the retroactivity analysis. In two of these categories,
the new rule already was retroactively applied: (1) when a decision
of this Court did nothing more than apply settled precedent to
different factual situations,
see id. at
457 U. S. 549,
and (2) when the new ruling was that a trial court lacked authority
to convict a criminal defendant in the first place.
See
id. at
457 U. S. 550.
[
Footnote 10]
The third category -- where a new rule is a "clear break" with
past precedent -- is the one at issue in these cases. We described
it in
United States v. Johnson, 457 U.S. at
457 U. S.
549-550:
"[W]here the Court has expressly declared a rule of criminal
procedure to be "a clear break with the past,"
Desist v. United
States, 394 U.S. at
394 U. S. 248,
it almost invariably has gone on to find such a newly minted
principle nonretroactive.
See United States v. Peltier,
422 U. S. 531,
422 U. S. 547,
n. 5 (1975) (BRENNAN, J., dissenting) (collecting cases). In this .
. . type of case, the traits of the particular constitutional rule
have been less critical than the Court's express threshold
determination that the "
new' constitutional interpretatio[n] .
. . so change[s] the law that prospectivity is arguably the proper
course," Williams v. United States, 401 U.S. at
401 U. S. 659
(plurality opinion). Once the Court has found that the new rule was
unanticipated, the second and third Stovall factors --
reliance by law enforcement authorities
Page 479 U. S. 325
on the old standards and effect on the administration of justice
of a retroactive application of the new rule -- have virtually
compelled a finding of nonretroactivity.
See, e.g., Gosa v.
Mayden, 413 U.S. at
413 U. S.
672-673,
413 U. S.
682-685 (plurality opinion);
Michigan v. Payne,
412 U.S. at
412 U. S.
55-57."
Thus, we recognized what may be termed a "clear break
exception." Under this exception, a new constitutional rule was not
applied retroactively, even to cases on direct review, if the new
rule explicitly overruled a past precedent of this Court, or
disapproved a practice this Court had arguably sanctioned in prior
cases, or overturned a longstanding practice that lower courts had
uniformly approved.
Id. at
457 U. S. 551.
The Fourth Amendment ruling in
Payton v. New York,
445 U. S. 573
(1980), with which
United States v. Johnson was concerned,
was not a clear break in any of these senses, and thus its
retroactivity status was not "effectively preordained" by falling
within the "clear break" exception. 457 U.S. at
457 U. S.
553-554.
In
Shea v. Louisiana, 470 U. S. 51
(1985), we applied
United States v. Johnson and held that
the Fifth Amendment rule announced in
Edwards v. Arizona,
451 U. S. 477
(1981), which prohibited the use, after a suspect had requested
counsel, of a confession obtained by police-instigated
interrogation without the suspect's attorney's being present, was
retroactive to cases on direct review when
Edwards was
decided. Using
Johnson's rationale, we concluded there was
nothing about a Fourth Amendment rule that suggested it should be
given greater retroactive effect than a Fifth Amendment rule. 470
U.S. at
470 U. S. 59. In
addition, as in
United States v. Johnson, we concluded
that the new rule did not fall within the "clear break" exception.
The previous Term, in
Solem v. Stumes, 465 U.
S. 638,
465 U. S. 647
(1984), the Court had explicitly recognized that
Edwards
was "not the sort of
clear break' case that is almost
automatically nonretroactive." [Footnote 11]
Page 479 U. S.
326
Although, in Shea, we expressed some doubt as to
"the merits of a different retroactivity rule for cases" in which a
new rule is a clear break with the past, we explained that "we have
no need to be concerned with the question here." 470 U.S. at
470 U. S. 59, n.
5.
III
The question whether a different retroactivity rule should apply
when a new rule is a "clear break" with the past, however, is
squarely before us in the present cases. In
Allen v.
Hardy, 478 U. S. 255
(1986), a case which was here on federal habeas, we said that the
rule in Batson "is an explicit and substantial break with prior
precedent" because it "overruled [a] portion of
Swain."
478 U.S. at
478 U. S. 258.
[
Footnote 12] We therefore
now reexamine the rationale for maintaining a "clear break"
exception to the general proposition that new rules governing
criminal procedure should be retroactive to cases pending on direct
review. For the same reasons that persuaded us in
United States
v. Johnson to adopt different conclusions as to convictions on
direct review from those that already had become final, we conclude
that an engrafted exception based solely upon the particular
characteristics of the new rule adopted by the Court is
inappropriate.
First, the principle that this Court does not disregard current
law when it adjudicates a case pending before it on direct review
applies regardless of the specific characteristics of the
particular new rule announced. The Court recognized in
United
States v. Johnson that the fact that a new rule is a clear
break with the past is relevant primarily because it implicates the
second and third
Stovall factors of reliance by law
enforcement officials and the burden on the administration
Page 479 U. S. 327
of justice imposed by retroactive application. But even if these
factors may be useful in deciding whether convictions that already
have become final should receive the benefit of a new rule, the
"clear break" exception, derived from the
Stovall factors,
reintroduces precisely the type of case-specific analysis that
Justice Harlan rejected as inappropriate for cases pending on
direct review.
Second, the use of a "clear break" exception creates the same
problem of not treating similarly situated defendants the same.
James Kirkland Batson, the petitioner in
Batson v.
Kentucky, and Randall Lamont Griffith, the petitioner in the
present Kentucky case, were tried in Jefferson Circuit Court
approximately three months apart. [
Footnote 13] The same prosecutor exercised peremptory
challenges at the trials. It was solely the fortuities of the
judicial process that determined the case this Court chose
initially to hear on plenary review. JUSTICE POWELL has pointed out
that it "hardly comports with the ideal of
administration of
justice with an even hand,'" when
"one chance beneficiary -- the lucky individual whose case was
chosen as the occasion for announcing the new principle -- enjoys
retroactive application, while others similarly situated have their
claims adjudicated under the old doctrine."
Hankerson v. North Carolina, 432 U.
S. 233,
432 U. S. 247
(1977) (opinion concurring in judgment), quoting
Desist v.
United States, 394 U.S. at
394 U. S. 255
(Douglas, J., dissenting).
See also Michigan v. Payne,
412 U. S. 47,
412 U. S. 60
(1973) (MARSHALL, J., dissenting) ("Different treatment of two
cases is justified under our Constitution only when the cases
differ in some respect relevant to the different treatment"). The
fact that the new rule may constitute a clear break with the past
has no bearing on the "actual inequity that results" when only
Page 479 U. S. 328
one of many similarly situated defendants receives the benefit
of the new rule.
United States v. Johnson, 457 U.S. at
457 U. S. 556,
n. 16 (emphasis omitted).
We therefore hold that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a "clear
break" with the past. Accordingly, in No. 85-5221, the judgment of
the Supreme Court of Kentucky is reversed, and the case is remanded
to that court for further proceedings not inconsistent with this
opinion. In No. 85-5731, the judgment of the United States Court of
Appeals for the Tenth Circuit is reversed, and the case is remanded
to that court for further proceedings consistent with this
opinion.
It is so ordered.
* Together with No. 85-5731,
Brown v. United States, on
certiorari to the United States Court of Appeals for the Tenth
Circuit.
[
Footnote 1]
In Kentucky, upon the completion of
voir dire, the
parties simultaneously exercise their respective peremptory
challenges. Each side strikes names from the list of jurors who
have been qualified and presents the strikes to the court. Ky.Rule
Crim.Proc. 9.36(2).
[
Footnote 2]
"If the number of prospective jurors remaining on the list
[after peremptory challenges] exceeds the number of jurors to be
seated, the cards bearing numbers identifying the prospective
jurors [are] placed in a box" and the clerk of the court draws at
random the number of cards necessary "to reduce the jury to the
number required by law."
Ibid.
[
Footnote 3]
Before submitting the case to the jury, the trial court granted
Griffith's request for a directed verdict of acquittal on the
charge of theft by unlawful taking.
See Tr. 204-206.
[
Footnote 4]
The number of prospective jurors in the first venire who were
excused for cause resulted in a remaining number insufficient to
constitute a full petit jury. 6 Record 9-10.
[
Footnote 5]
There is some confusion as to the number of prospective black
jurors in the total venire. According to a statement in the record,
there were six in the two panels.
Id. at 20. At oral
argument, counsel for petitioner Brown stated that five had been
called. Tr. of Oral Arg. 3. There appears to be agreement, however,
that two black jurors were excused by the prosecutor's use of
peremptory challenges.
See ibid.; 6 Record 20; App.
14.
[
Footnote 6]
By "final," we mean a case in which a judgment of conviction has
been rendered, the availability of appeal exhausted, and the time
for a petition for certiorari elapsed or a petition for certiorari
finally denied.
See United States v. Johnson, 457 U.
S. 537,
457 U. S. 542,
n. 8 (1982) (citing
Linkletter v. Walker, 381 U.
S. 618,
381 U. S. 622,
n. 5 (1965)).
[
Footnote 7]
In
United States v. Johnson, the Court held that the
Fourth Amendment ruling announced in
Payton v. New York,
445 U. S. 573
(1980), prohibiting police from making a warrantless, nonconsensual
entry into a suspect's home for the purpose of making a routine
felony arrest, applied retroactively to a case pending on direct
appeal.
[
Footnote 8]
We noted in
Johnson that our review did not address the
area of civil retroactivity.
See 457 U.S. at
457 U. S. 563.
That area continues to be governed by the standard announced in
Chevron Oil Co. v. Huson, 404 U. S.
97,
404 U. S.
106-107 (1971).
[
Footnote 9]
See, among others,
Brown v. Louisiana,
447 U. S. 323,
447 U. S. 337
(1980) (POWELL, J., with whom STEVENS, J., joined, concurring in
judgment);
Harlin v. Missouri, 439 U.
S. 459,
439 U. S. 460
(1979) (POWELL, J., concurring in judgment);
Hankerson v. North
Carolina, 432 U. S. 233,
432 U. S. 245
(1977) (MARSHALL, J., concurring in judgment);
id. at
432 U. S. 246
(POWELL, J., concurring in judgment).
[
Footnote 10]
These two categories, in which new rules are automatically
applied retroactively, are not affected in any way by our decision
today.
[
Footnote 11]
In
Solem v. Stumes, the Court concluded that the rule
announced in
Edwards was not retroactive to a conviction
that had become final.
[
Footnote 12]
Petitioner Griffith argues that the
Batson ruling was
not a "clear break" with the past because it did not announce a new
principle of constitutional law under the Equal Protection Clause.
Whatever the merits of that argument might be, it is foreclosed by
Allen v. Hardy.
[
Footnote 13]
Batson was tried in February, 1984.
See App.
in
Batson v. Kentucky, O.T. 1985, No. 84-6263, p. 1.
Petitioner Griffith was tried in May of that year. App. in No.
85-5221, p. 1. And, for what it may be worth, petitioner Brown was
tried in Oklahoma in June, 1984. App. in No. 85-5731, p. 2.
JUSTICE POWELL, concurring.
I join the Court's opinion, and consider it an important step
toward ending the confusion that has resulted from applying
Linkletter v. Walker, 381 U. S. 618
(1965), on a case-by-case basis. I concluded in 1977 that the Court
would be well advised to adopt Justice Harlan's view as to the
retroactive application of our decisions both with respect to cases
pending at the time on direct appeal and with respect to cases
pending on habeas corpus petitions.
See Hankerson v. North
Carolina, 432 U. S. 233,
432 U. S. 246
(1977) (conconcurring
Page 479 U. S. 329
in judgment). The Harlan view is stated in
Mackey v. United
States, 401 U. S. 667,
401 U. S. 675
(1971) (opinion concurring in judgment in
Mackey and
dissenting from judgment in
Williams v. United States,
401 U. S. 646
(1971)), and
Desist v. United States, 394 U.
S. 244,
394 U. S. 256
(1969) (dissenting opinion). I was persuaded by Justice Harlan's
reasoning then, and have followed it since.
See Hankerson v.
North Carolina, supra; Harlin v. Missouri, 439 U.
S. 459,
439 U. S. 460
(1979) (concurring in judgment);
Brown v. Louisiana,
447 U. S. 323,
447 U. S. 337
(1980) (concurring in judgment);
Solem v. Stumes,
465 U. S. 638,
465 U. S. 651
(1984) (concurring in judgment).
As the cases we decide today involve only the retroactivity of
decisions pending on direct review, it was not necessary for the
Court to express an opinion with respect to habeas corpus
petitions. As I read the Court's opinion, this question is
carefully left open until it is squarely presented. It is to be
hoped that the Court then will adopt the Harlan view of
retroactivity in cases seeking relief on habeas petitions.
See
Mackey v. United States, supra, at
401 U. S.
681-695. Under that view, habeas petitions generally
should be judged according to the constitutional standards existing
at the time of conviction.
CHIEF JUSTICE REHNQUIST, dissenting.
As I stated in my dissenting opinion in
Shea v.
Louisiana, 470 U. S. 51,
470 U. S. 61
(1985), I am willing to adopt both aspects of the approach to
retroactivity propounded by Justice Harlan in his opinion in
Mackey v. United States, 401 U. S. 667,
401 U. S. 675
(1971). In Justice Harlan's view, new constitutional rules
governing criminal prosecutions should apply retroactively for
cases pending on direct appeal when the rule is announced, and,
with narrow exceptions, should not apply in collateral proceedings
challenging convictions that become final before the rule is
announced. The majority today adopts only a portion of this
approach. I therefore join JUSTICE WHITE'S dissent, agreeing with
him that, under the present state of our retroactivity
jurisprudence, the majority erred in rejecting the reasons cited in
Allen v.
Hardy, 478
Page 479 U. S. 330
U.S. 255 (1986), for making
Batson v. Kentucky,
476 U. S. 79
(1986), nonretroactive.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, dissenting.
Last Term, this Court decided that the rule announced in
Batson v. Kentucky, 476 U. S. 79
(1986), should not apply on collateral review of convictions that
became final before the decision in
Batson was announced.
Allen v. Hardy, 478 U. S. 255
(1986). In reaching this judgment, the Court weighed the three
factors that it has traditionally considered in deciding the
retroactivity of a new rule of criminal procedure:
""
(a) the purpose to be served by the new standards, (b) the
extent of the reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of justice of a
retroactive application of the new standards.'""
Id. at
478 U. S. 258
(quoting
Solem v. Stumes, 465 U.
S. 638,
465 U. S. 643
(1984), in turn quoting
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 297
(1967)). No Justice suggested that this test is unworkable. The
question, then, is why the Court feels constrained to fashion a
different rule for cases on direct review. The reasons the Court
offers are not new, and I find them as unpersuasive today as I have
in the past:
"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
Page 479 U. S. 331
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
legitimacy.'"
"
* * * *"
"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 [ 457 U. S. ]
Johnson, [
457 U.S.
537,
457 U. S. 566-568 (1982)]
(WHITE, J., dissenting);
Williams v. United States,
401 U. S.
646,
401 U. S. 656-659 (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
whose case it is announced but to no others; the Court's new
Page 479 U. S. 332
approach equalizes nothing except the numbers of defendants
within the disparately treated classes."
Shea v. Louisiana, 470 U. S. 51,
470 U. S. 62-64
(1985) (WHITE, J., dissenting). [
Footnote 2/1]
The Court's invocation of fairness also overlooks the fact that
it is a fortuity that we overruled
Swain v. Alabama,
380 U. S. 202
(1965), in a case that came to us on direct review. We could as
easily have granted certiorari and decided the matter in a case on
collateral review, such as
Allen v. Hardy. In that case,
the principle of treating like cases alike would dictate that all
cases on collateral review receive the benefit of the new rule. I
trust that the Court would not go that far in letting the tail wag
the dog; good judgment would -- I hope -- win out over blind
adherence to the principle of treating like cases alike. Yet today
the Court acts as if
Page 479 U. S. 333
it has no choice but to follow a mechanical notion of fairness
without pausing to consider "sound principles of decisionmaking,"
Stovall v. Denno, 388 U.S. at
388 U. S.
301.
For the foregoing reasons, I would adhere to the approach set
out in
Stovall v. Denno, supra, at
388 U. S. 300,
and recognize no distinction for retroactivity purposes between
cases on direct and collateral review. But even if I saw some merit
in applying the Harlan approach to cases on direct appeal, I would
nonetheless preserve the exception for "clear breaks" recognized in
United States v. Johnson, 457 U.
S. 537 (1982). Under our precedent,
"a decision announcing a new standard 'is almost automatically
nonretroactive' where the decision 'has explicitly overruled past
precedent.'"
Allen v. Hardy, 478 U.S. at
478 U. S. 258
(quoting
Solem v. Stumes, 465 U.S. at
465 U. S. 646,
647). As the majority in Johnson explained:
"Once the Court has found that [a] new rule was unanticipated,
the second and third
Stovall factors -- reliance by law
enforcement authorities on the old standards and effect on the
administration of justice of a retroactive application of the new
rule -- have virtually compelled a finding of
nonretroactivity."
457 U.S. at
457 U. S.
549-550 (citations omitted).
The Court has already recognized that
Batson
constitutes "an explicit and substantial break with prior
precedent," and that
"prosecutors, trial judges, and appellate courts throughout our
state and federal systems justifiably have relied on the standard
of
Swain."
Allen v. Hardy, supra, at
478 U. S. 258,
478 U. S. 260.
The reasons that the Court gave in
Allen v. Hardy for
concluding that "retroactive application of the
Batson
rule on collateral review of final convictions would seriously
disrupt the administration of justice," 478 U.S. at
478 U. S. 260,
apply equally to retroactive application of the
Batson
rule on direct review. [
Footnote
2/2]
Page 479 U. S. 334
The majority knows that it is penalizing justifiable reliance on
Swain, and in doing so causing substantial disruption in
the administration of justice; yet the majority acts as if it has
no principled alternative. This is not true; it would be a far
sounder rule, and no less principled, to apply the
Stovall
test to determine retroactivity on both direct and collateral
review. I respectfully dissent.
[
Footnote 2/1]
The Court does not in these cases address the differential
treatment of cases on direct and collateral review. I adhere to my
view that the Court's decisions in
United States v.
Johnson, 457 U. S. 537
(1982), and
Shea v. Louisiana, 470 U. S.
51 (1985), provide no satisfactory justification for
distinguishing between the two classes of cases. As I stated in
Shea:
"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
finality,' [470 U.S.] at
470 U. S. 60, on those who
were unfortunate enough to have exhausted their last direct appeal
at the time
Edwards [v. Arizona, 451 U. S.
477 (1981),] 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 will be 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; accordingly, 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."
Id. at
470 U. S. 64-65
(footnote omitted).
[
Footnote 2/2]
"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."
"
* * * *"
"Of course, it will be less burdensome in the aggregate to apply
[
Batson] only to cases pending when [
Batson] was
decided than to give it full retroactive effect; by the same token,
it would be less burdensome to apply [
Batson]
retroactively 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."
Shea v. Louisiana, 470 U.S. at
470 U. S. 64, n.
1 (WHITE, J., dissenting).