A Teague Primer

Before getting to the oral argument of December 2 in Edwards v. Vannoy, a basic explanation of the rule of Teague v. Lane is in order. To understand the rule, and to understand why it has an exception that is never met, one needs to know the background.

Before Teague, the Warren Court had established a three-prong test for when a rule would be applied retroactively to earlier cases. The Court was making up new rules at a brisk pace, so this question was important. The majority that created this approach to retroactivity, initially, was a coalition of the more pragmatic members of the liberal wing of the Court, including Chief Justice Warren and Justice Brennan, who saw non-retroactivity as a way to reduce resistance to changes they thought were needed, and the relatively conservative justices who saw it “as a way of limiting the reach of decisions that seemed to them fundamentally unsound,” as Justice Harlan put it in his separate opinion in Mackey v. United States, 401 U.S. 667, 676 (1971).

Prior Law

Here is the pre-Teague rule, known as the Linkletter rule: “The criteria guiding resolution of the question implicate (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.” Stovall v. Denno, 388 U.S. 293, 297 (1967). If you think that is clear as mud, you are catching on. This is the kind of vague test that lets the Court produce whatever result seems desirable case-by-case, but without much consistency. Justice Harlan said in Mackey that the course of the Linkletter rule “became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” (p. 676.) Even worse, this kind of fuzzy rule provides no guidance for lower federal courts to follow until the time that the Supreme Court gets around to answering a particular question, making their decisions fall all over the map.

The Linkletter rule generally made no distinction between cases on direct appeal and those on habeas corpus. So the particular defendants in whose cases a new rule was made got the benefit while similarly situated defendants did not. Ernesto Miranda got a new trial for his despicable rape of an intellectually disabled woman on the ground that the police officers who questioned him did not give him warnings that no law then in effect required them to give. Others tried at the same time did not get new trials. Fortunately, Miranda was reconvicted, but the victim had to endure a second trial.

Justice Harlan’s Proposal

Justice Harlan eventually found all this intolerable. This is no way for the judicial branch to conduct itself, arbitrarily picking and choosing which defendants get the benefit of a rule and which do not. In his opinions in Mackey and earlier in Desist v. United States, 394 U.S. 244 (1969), he proposed a more principled approach.

First, all new rules apply to all cases not yet final when they are decided. That means that the first round of appeals (as distinguished from collateral attacks) has not yet been completed. There is no principled basis for treating the defendant in whose case the new rule is made more favorably than others who are in the same stage of review of their cases.

Second, new rules would generally not be applied in proceedings collaterally attacking a final judgment. The reason for the distinction comes from the purpose of collateral review. While appeals are provided to review every properly preserved claim of error at trial, collateral attacks have always been reserved for a smaller subset of claims. At first it was jurisdiction of the court alone that could be challenged. Later this was broadened to constitutional claims. That was a small subset at first, but during the Warren Court years constitutional doctrine grew so broad that nearly every challenge could be federalized and constitutionalized. Justice Harlan’s proposal was to at least cut that back to violations of constitutional rules in effect at the time of the trial and initial appeal.

Justice Harlan noted two exceptions. One was for rules that particular conduct could not be made a crime. The state has no interest in keeping a person in prison for such conduct. Further, since a defendant with such a claim is, by definition, innocent, 100% of such cases are wrongful convictions.

The second exception was more difficult to define, and the Supreme Court struggles with it to this day. Initially in Desist, Justice Harlan defined the exception as “rules which significantly improve the pre-existing fact-finding procedures.” (p. 262.) “Significantly” is too slippery to be useful, though. Most new procedural rules are thought to improve the procedures. Few would be made otherwise. Adopting this standard would eventually slide back into the arbitrariness of Linkletter.

On his second try, in Mackey, Justice Harlan referred to the old standard for deciding what rights were protected by the Due Process Clause of the Fourteenth Amendment before it was thought to incorporate the provisions of the Bill of Rights. Quoting the already obsolete language of Palko v. Connecticut, 302 U.S. 319, 325 (1937), he referred to “those procedures that … are ‘implicit in the concept of ordered liberty.’ ” Even worse.

However, the language that follows the Palko reference gives us a better handle. Justice Harlan referred to “those procedures essential to the substance of a fair hearing.” (Emphasis added.) Now we are getting somewhere. The inquiry has nothing to do with whether a given procedure was historically required. What protections are so essential to a fair trial that we would say a person was railroaded without them, that we could have no confidence in the result, that the court was a kangaroo court?

The Harlan View Prevails

Justice Harlan stood alone in his opinion, and his days were numbered at the time of Mackey. After his departure, Justice Powell took up the cause, also alone. Gradually, though, his view became accepted. The Supreme Court adopted the direct review prong of his proposal in Griffith v. Kentucky, 479 U.S. 314 (1987). A plurality of the Court adopted the habeas corpus portion, with a modification, in Teague v. Lane. The plurality became a majority later the same term when Justice White, who had been the main opponent of the Harlan view, threw in the towel in Penry v. Lynaugh, 492 U.S. 302 (1989).

Teague’s Modification of the Second Exception

The modification came from the Teague plurality’s recognition that the Palko language was “anachronistic,” “less defined” than an accuracy-based exception, and came from another legal debate with little relevance to retroactivity. (See 489 U.S., at 312.)

Supplementing, if not discarding, the Palko test, Teague picked up other language from the Desist and Mackey opinions. To qualify for the second exception, the new rule must “implicate the fundamental fairness of the trial” (p. 312, emphasis added) and “be … central to an accurate determination of innocence or guilt.” (p. 313.)

What rules would qualify? It is easy to identify rules from the past. At page 313, Teague quoted Justice Stevens’ definition of “fundamental errors” from his dissent in Rose v. Lundy, 455 U.S. 509, 544 (1982) where he was floating a different proposal for overhauling habeas corpus. Here is the Lundy passage in full, except for the footnotes:

The fourth category includes those errors that are so fundamental that they infect the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained. This category cannot be defined precisely; concepts of “fundamental fairness” are not frozen in time. But the kind of error that falls in this category is best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus–that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.

These examples are consistent with my description of the essentials of a fair trial above. The defendants in the classic cases that Justice Stevens referred to were all railroaded. There is no way that we could have confidence in the outcome of such trials. The same is also true of the rule of Gideon v. Wainwright, 372 U.S. 335 (1963), Justice Harlan’s example of a qualifying rule in Mackey and the example regularly cited post-Teague. Even though it was allowed at common law, pitting an indigent layman (often a poorly educated one) against a professional prosecutor in an adversary system of justice is so inherently and severely lopsided that the result cannot be trusted.

One more aspect that all these rules have in common is that they are all quite old. Gideon at 57 is the youngest of the lot by a wide margin. That makes perfect sense. The Fourteenth Amendment has guaranteed due process of law for state-court defendants since 1868, and the outrageous practices that amount to railroading the defendant were all identified long ago.

So why does Teague have a second exception at all? At the time of Mackey, Gideon was only eight years old, and Justice Harlan perhaps felt compelled to explain why he would continue to concur in granting collateral relief for any more Gideon violations not yet remedied. Teague was almost entirely an adoption of the Harlan view, and, given the precedent of the Court’s adoption of that view in part in Griffith, the plurality may have wished to change it as little as possible.

The reality that all the rules fundamental enough to qualify for the second Teague exception had already been made by 1989 was apparent then and has become more clear as time has gone on. The Teague plurality noted that “we believe it unlikely that many such components of basic due process have yet to emerge.” (p. 313, emphasis added.) In time, “many” became “any.” (See Wharton, at 417.)

The second Teague exception is a historical artifact. There are no rules remaining to be made that would qualify.

Defining “New Rule”

What exactly is a “new rule”? A decision overruling a previously controlling precedent is obviously a new rule. A decision that simply applies an established rule to particular facts is not. In between is a spectrum of rules that arguably but not necessarily follow from existing ones. Teague defined new rules broadly. “[A] case  announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” (p. 301, emphasis in original.) The Court further explained the following year in Butler v. McKellar, 494 U.S. 407, 415 (1990) that a rule is new if the outcome “was susceptible to debate among reasonable minds,” and a substantial division of opinion among the lower courts to consider the question is generally sufficient to demonstrate that. Obviously, a rule that is contrary to the one previously universally upon agreed by the lower courts is a new rule.

Teague In Practice

In the years that followed, Teague had utility in protecting judgments from retroactive application of Supreme Court precedents, but it was even more important in protecting state judgments from wrong decisions of the lower federal courts. Before Teague, the lower federal courts had essentially unlimited authority to invent new rules on their own and effectively impose them on states, effectively vacating all judgments reached with contrary procedures. It might take years before the Supreme Court would decide that the state courts had been right and the lower federal courts wrong, and in the meantime many valid judgments might be wrongly overturned.

Protection from rogue decisions of lower federal courts is less important today, now that we have the reforms of the Antiterrorism and Effective Death Penalty Act of 1996, especially 28 U.S.C. § 2254(d), but Teague remains relevant. Wrong decisions are still issued on claims that were never made in state courts when an exception is found to the procedural default rule. In such cases, the protection of Teague is still needed. See, e.g., Deck v. Jennings, 978 F.3d 578 (8th Cir. 2020) (reversing on Teague grounds a decision of the district court that goes far beyond existing law).

That is the essence of the Teague rule. I will address the issues raised in the oral argument in the next post.

2 Responses

  1. Bill Otis says:

    1. You can pay $60,000 for a year’s law school tuition and not get as clear or lucid an account of this complicated area of the law as you got in the last five minutes of reading.

    2. For those who were wondering why CJLF briefs are welcomed at the Supreme Court, now you know.

  2. Ed Hagen says:

    I tried hundreds of jury trials in Oregon in the 1970s-80s-90s and handled most of the motions filed in criminal cases in a medium sized DA’s office during that period. Oregon required unanimous 6 person verdicts in misdemeanor cases and unanimous 12 person verdicts in murder case, but felons could be convicted on 10-2 votes. I can’t recall a single motion filed arguing against non-unanimous verdicts. Frankly, litigants on both sides were happy to have cases decided without repeated trials (in my experience, the prosecution just about always won the case on retrial after a hung verdict).

    It should be noted that Oregon, starting in the very early 1980s (or maybe earlier), has required defense counsel to raise independent state grounds before raising federal grounds in constitutional criminal procedure claims (Oregon Supreme Court justice Hans Linde was a pioneer in urging litigants to raise independent state grounds). So if unanimous verdicts are a “watershed” rule, why didn’t Oregon courts discover this watershed rule under its own constitution?

    One other thought. Jury trials are a lot like arm wrestling. Once you get to 10-2, getting to 12-0, if required, is almost inevitable. The number of defendants convicted 10-2 who would not have ultimately been convicted 12-0 is microscopic.