H-U-G-E win on state postconviction procedure
[Update 1030 PM]
Wednesday morning the Supreme Court, 7-2, in Danforth v. Minnesota (a noncapital case), ruled that state courts, as opposed to the federal courts, may apply new rules of criminal law and procedure retroactively.
Lyle Denniston’s thoughtful post, Analysis: ‘Creating’ or ‘declaring’ rights I think wraps up best this case. Most importantly Lyle’s post recognizes that this is a potential milepost to measure the continuing “Scalia revolution in criminal law.” Additionally Lyle notes, I believe correctly, Danforth holds the Court does not create rights, it declares them (an interesting development in and of itself). Finally, Danforth is about the role of remedies where there is a rights violation and the ability of states to create greater procedural protection than permitted in federal court.
What is odd in this opinion, and why I haven’t liked the analysis I have seen so far (incl. the email lists), is that the opinion is ripe with an inherent logical inconsistency. Specifically, if the right existed from time the Constitution (or the particular amendment was ratified) how can it only have retroactive effect from the day it was declared, a problem that the dissent hints at but doesn’t lay out with specificity. The tension in the opinion is not likely to be resolved any time soon.
One other question remains unresolved in Danforth. What happens when a state fails to provide an avenue for a federally recognized right, such as the right to the effective assistance of counsel? That question is percolating up and through the lower courts and will likely (if it hasn’t already) be before the Court no later than by the end of the year.
