The Supremes have spoken, setting off two days of scrambling and discussing and brainstorming and musing and running back and forth to judges' courtrooms and chambers (not all by me). It's an interesting time.
Yet the decisions that sent me into a tizzy yesterday made rather less noise nationally. In two capital cases, the Court once again held that the finality of state court convictions is more important than fixing constitutional errors, even in death penalty cases. I remain baffled and increasingly angry at how any state interest can take precedence over ensuring that the ultimate penalty - if we are going to impose it at all - is administered with absolute fairness and utmost care. I fail to comprehend why anyone's life should be spared or sacrificed based on an arbitrary date on the procedural calendar, and I defy anyone to give me an explanation for the Teague* rule that is both logically and morally defensible.
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*Teague v. Lane, 489 U.S. 288 (1989), is one of the habeas lawyer's greatest nemeses. Teague teaches that when the Supreme Court announces a "new rule" of constitutional criminal procedure, the decision applies to all cases that are not yet final on "direct appeal" (e.g., straight up from the conviction), but not to older cases in which the new decision would be raised on "collateral review" (e.g., habeas corpus). There are two exceptions to this non-retroactivity principle. One is where the new decision de-criminalizes certain conduct. The other is where the rule is of such watershed importance as to "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." It is difficult to tell just how fair and accurate the Supreme Court expects convictions to be, however, because the Court has consistently rejected attempts to apply retroactively any "new rule" other than the right to counsel (which wasn't even "new" when Teague came down).
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