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Finality, Comity, and Retroactivity in Criminal Procedure
Stanford Law Review  (IF4.29),  Pub Date : 2021-06-19, DOI:
Jeffrey G. Ho

The Supreme Court’s habeas corpus retroactivity jurisprudence has never been a model of clarity or fairness. Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This rule derives fromGriffith v. Kentucky,in which the Supreme Court held that the Constitution requires that all new constitutional rules apply to cases on direct review. However, inTeague v. Lane, the Court distinguished direct and collateral review, holding that new constitutional rules do not apply to cases on collateral review unless they fall within one of two exceptions. The Court has justified this approach to retroactivity by emphasizingcomity, respect for the judicial process of the state courts, andfinality, the closure a judgment of conviction is supposed to bring. This retroactivity test is not only complex but also produces disparate impacts on similarly situated individuals. For this reason and many others, legal scholars have long criticized theTeaguedoctrine; as Justice Gorsuch recently acknowledged, the Teague doctrine has been “mystifying . . . from its inception.” And in May 2021, the Court walked back the thirty-year-old doctrine inEdwards v. Vannoy, recognizing that one of the two Teague exceptions is “moribund” and “retain[s] no vitality.”