Montgomery v. Louisiana , 135 S. Ct. 1546 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MONTGOMERY v. LOUISIANA
CERTIORARI TO THE SUPREME COURT OF LOUISIANA
No. 14–280. Argued October 13, 2015—Decided January 25, 2016
Petitioner Montgomery was 17 years old in 1963, when he killed a dep-
uty sheriff in Louisiana. The jury returned a verdict of “guilty with-
out capital punishment,” which carried an automatic sentence of life
without parole. Nearly 50 years after Montgomery was taken into
custody, this Court decided that mandatory life without parole for ju-
venile homicide offenders violates the Eighth Amendment’s prohibi-
tion on “ ‘cruel and unusual punishments.’ ” Miller v. Alabama, 567
U. S. ___, ___. Montgomery sought state collateral relief, arguing
that Miller rendered his mandatory life-without-parole sentence ille-
gal. The trial court denied his motion, and his application for a su-
pervisory writ was denied by the Louisiana Supreme Court, which
had previously held that Miller does not have retroactive effect in
cases on state collateral review.
Held:
1. This Court has jurisdiction to decide whether the Louisiana Su-
preme Court correctly refused to give retroactive effect to Miller.
Pp. 5–14.
(a) Teague v. Lane, 489 U.S. 288, a federal habeas case, set forth
a framework for the retroactive application of a new constitutional
rule to convictions that were final when the new rule was announced.
While the Court held that new constitutional rules of criminal proce-
dure are generally not retroactive, it recognized that courts must give
retroactive effect to new watershed procedural rules and to substan-
tive rules of constitutional law. Substantive constitutional rules in-
clude “rules forbidding criminal punishment of certain primary con-
duct” and “rules prohibiting a certain category of punishment for a
class of defendants because of their status or offense,” Penry v.
Lynaugh, 492 U.S. 302, 330. Court-appointed amicus contends that
because Teague was an interpretation of the federal habeas statute,
2 MONTGOMERY v. LOUISIANA
Syllabus
not a constitutional command, its retroactivity holding has no appli-
cation in state collateral review proceedings. However, neither
Teague nor Danforth v. Minnesota, 552 U.S. 264—which concerned
only Teague’s general retroactivity bar for new constitutional rules of
criminal procedure—had occasion to address whether States are re-
quired as a constitutional matter to give retroactive effect to new
substantive rules. Pp. 5–8.
(b) When a new substantive rule of constitutional law controls
the outcome of a case, the Constitution requires state collateral re-
view courts to give retroactive effect to that rule. This conclusion is
established by precedents addressing the nature of substantive rules,
their differences from procedural rules, and their history of retroac-
tive application. As Teague, supra, at 292, 312, and Penry, supra, at
330, indicate, substantive rules set forth categorical constitutional
guarantees that place certain criminal laws and punishments alto-
gether beyond the State’s power to impose. It follows that when a
State enforces a proscription or penalty barred by the Constitution,
the resulting conviction or sentence is, by definition, unlawful. In
contrast, where procedural error has infected a trial, a conviction or
sentence may still be accurate and the defendant’s continued con-
finement may still be lawful, see Schriro v. Summerlin, 542 U.S.
348, 352–353; for this reason, a trial conducted under a procedure
found unconstitutional in a later case does not automatically invali-
date a defendant’s conviction or sentence. The same possibility of a
valid result does not exist where a substantive rule has eliminated a
State’s power to proscribe the defendant’s conduct or impose a given
punishment. See United States v. United States Coin & Currency,
401 U.S. 715, 724. By holding that new substantive rules are, in-
deed, retroactive, Teague continued a long tradition of recognizing
that substantive rules must have retroactive effect regardless of
when the defendant’s conviction became final; for a conviction under
an unconstitutional law “is not merely erroneous, but is illegal and
void, and cannot be a legal cause of imprisonment,” Ex parte Siebold,
100 U.S. 371, 376–377. The same logic governs a challenge to a pun-
ishment that the Constitution deprives States of authority to impose,
Penry, supra, at 330. It follows that a court has no authority to leave
in place a conviction or sentence that violates a substantive rule, re-
gardless of whether the conviction or sentence became final before
the rule was announced. This Court’s precedents may not directly
control the question here, but they bear on the necessary analysis, for
a State that may not constitutionally insist that a prisoner remain in
jail on federal habeas review may not constitutionally insist on the
same result in its own postconviction proceedings. Pp. 8–14.
2. Miller’s prohibition on mandatory life without parole for juvenile
Cite as: 577 U. S. ____ (2016) 3
Syllabus
offenders announced a new substantive rule that, under the Consti-
tution, is retroactive in cases on state collateral review. The “founda-
tion stone” for Miller’s analysis was the line of precedent holding cer-
tain punishments disproportionate when applied to juveniles, 567
U. S., at ___, n. 4. Relying on Roper v. Simmons, 543 U.S. 551, and
Graham v. Florida, 560 U.S. 48, Miller recognized that children dif-
fer from adults in their “diminished culpability and greater prospects
for reform,” 567 U. S., at ___, and that these distinctions “diminish
the penological justifications” for imposing life without parole on ju-
venile offenders, id., at ___. Because Miller determined that sentenc-
ing a child to life without parole is excessive for all but “ ‘the rare ju-
venile offender whose crime reflects irreparable corruption,’ ” id., at
___, it rendered life without parole an unconstitutional penalty for “a
class of defendants because of their status”—i.e., juvenile offenders
whose crimes reflect the transient immaturity of youth, Penry, 492
U.S., at 330. Miller therefore announced a substantive rule of con-
stitutional law, which, like other substantive rules, is retroactive be-
cause it “ ‘necessarily carr[ies] a significant risk that a defendant’ ”—
here, the vast majority of juvenile offenders—“ ‘faces a punishment
that the law cannot impose upon him.’ ” Schriro, supra, at 352.
A State may remedy a Miller violation by extending parole eligibil-
ity to juvenile offenders. This would neither impose an onerous bur-
den on the States nor disturb the finality of state convictions. And it
would afford someone like Montgomery, who submits that he has
evolved from a troubled, misguided youth to a model member of the
prison community, the opportunity to demonstrate the truth of Mil-
ler’s central intuition—that children who commit even heinous
crimes are capable of change. Pp. 14–21.
2013–1163 (La. 6/20/14), 141 So. 3d 264, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined. THOMAS, J., filed a dissenting opinion.
Cite as: 577 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–280
_________________
HENRY MONTGOMERY, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA
[January 25, 2016]
JUSTICE KENNEDY delivered the opinion of the Court.
This is another case in a series of decisions involving the
sentencing of offenders who were juveniles when their
crimes were committed. In Miller v. Alabama, 567 U. S.
___ (2012), the Court held that a juvenile convicted of a
homicide offense could not be sentenced to life in prison
without parole absent consideration of the juvenile’s spe­
cial circumstances in light of the principles and purposes
of juvenile sentencing. In the wake of Miller, the question
has arisen whether its holding is retroactive to juvenile
offenders whose convictions and sentences were final
when Miller was decided. Courts have reached different
conclusions on this point. Compare, e.g., Martin v. Sym-
mes, 782 F.3d 939, 943 (CA8 2015); Johnson v. Ponton,
780 F.3d 219, 224–226 (CA4 2015); Chambers v. State,
831 N.W.2d 311, 331 (Minn. 2013); and State v. Tate,
2012–2763, p. 17 (La. 11/5/13), 130 So. 3d 829, 841, with
Diatchenko v. District Attorney for Suffolk Dist., 466 Mass.
655, 661–667, 1 N.E.3d 270, 278–282 (2013); Aiken v.
Byars, 410 S. C. 534, 548, 765 S.E.2d 572, 578 (2014);
State v. Mares, 2014 WY 126, ¶¶47–63, 335 P.3d 487,
504–508; and People v. Davis, 2014 IL 115595, ¶41, 6
2 MONTGOMERY v. LOUISIANA
Opinion of the Court
N. E. 3d 709, 722. Certiorari was granted in this case to
resolve the question.
I
Petitioner is Henry Montgomery. In 1963, Montgomery
killed Charles Hurt, a deputy sheriff in East Baton Rouge,
Louisiana. Montgomery was 17 years old at the time of
the crime. He was convicted of murder and sentenced to
death, but the Louisiana Supreme Court reversed his
conviction after finding that public prejudice had pre­
vented a fair trial. State v. Montgomery, 181 So. 2d 756,
762 (La. 1966).
Montgomery was retried. The jury returned a verdict of
“guilty without capital punishment.” State v. Montgomery,
242 So. 2d 818 (La. 1970). Under Louisiana law, this
verdict required the trial court to impose a sentence of life
without parole. The sentence was automatic upon the
jury’s verdict, so Montgomery had no opportunity to pre­
sent mitigation evidence to justify a less severe sentence.
That evidence might have included Montgomery’s young
age at the time of the crime; expert testimony regarding
his limited capacity for foresight, self-discipline, and
judgment; and his potential for rehabilitation. Montgom­
ery, now 69 years old, has spent almost his entire life in
prison.
Almost 50 years after Montgomery was first taken into
custody, this Court decided Miller v. Alabama, 567 U. S.
___. Miller held that mandatory life without parole for
juvenile homicide offenders violates the Eighth Amend­
ment’s prohibition on “ ‘cruel and unusual punishments.’ ”
Id., at ___ (slip op., at 2). “By making youth (and all that
accompanies it) irrelevant to imposition of that harshest
prison sentence,” mandatory life without parole “poses too
great a risk of disproportionate punishment.” Id., at ___
(slip op., at 17). Miller required that sentencing courts
consider a child’s “diminished culpability and heightened
Cite as: 577 U. S. ____ (2016) 3
Opinion of the Court
capacity for change” before condemning him or her to die
in prison. Ibid. Although Miller did not foreclose a sen­
tencer’s ability to impose life without parole on a juvenile,
the Court explained that a lifetime in prison is a dispro­
portionate sentence for all but the rarest of children, those
whose crimes reflect “ ‘irreparable corruption.’ ” Ibid.
(quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).
After this Court issued its decision in Miller, Montgom­
ery sought collateral review of his mandatory life-without­
parole sentence. In Louisiana there are two principal
mechanisms for collateral challenge to the lawfulness of
imprisonment. Each begins with a filing in the trial court
where the prisoner was convicted and sentenced. La. Code
Crim. Proc. Ann., Arts. 882, 926 (West 2008). The first
procedure permits a prisoner to file an application for
postconviction relief on one or more of seven grounds set
forth in the statute. Art. 930.3. The Louisiana Supreme
Court has held that none of those grounds provides a basis
for collateral review of sentencing errors. See State ex rel.
Melinie v. State, 93–1380 (La. 1/12/96), 665 So. 2d 1172
(per curiam). Sentencing errors must instead be raised
through Louisiana’s second collateral review procedure.
This second mechanism allows a prisoner to bring a
collateral attack on his or her sentence by filing a motion
to correct an illegal sentence. See Art. 882. Montgomery
invoked this procedure in the East Baton Rouge Parish
District Court.
The state statute provides that “[a]n illegal sentence
may be corrected at any time by the court that imposed
the sentence.” Ibid. An illegal sentence “is primarily
restricted to those instances in which the term of the
prisoner’s sentence is not authorized by the statute or
statutes which govern the penalty” for the crime of convic­
tion. State v. Mead, 2014–1051, p. 3 (La. App. 4 Cir.
4/22/15), 165 So. 3d 1044, 1047; see also State v. Alexan-
der, 2014–0401 (La. 11/7/14), 152 So. 3d 137 (per curiam).
4 MONTGOMERY v. LOUISIANA
Opinion of the Court
In the ordinary course Louisiana courts will not consider a
challenge to a disproportionate sentence on collateral
review; rather, as a general matter, it appears that pris­
oners must raise Eighth Amendment sentencing chal-
lenges on direct review. See State v. Gibbs, 620 So. 2d 296,
296–297 (La. App. 1993); Mead, 165 So. 3d, at 1047.
Louisiana’s collateral review courts will, however, con­
sider a motion to correct an illegal sentence based on a
decision of this Court holding that the Eighth Amendment
to the Federal Constitution prohibits a punishment for a
type of crime or a class of offenders. When, for example,
this Court held in Graham v. Florida, 560 U.S. 48 (2010),
that the Eighth Amendment bars life-without-parole
sentences for juvenile nonhomicide offenders, Louisiana
courts heard Graham claims brought by prisoners whose
sentences had long been final. See, e.g., State v. Shaffer,
2011–1756, pp. 1–4 (La. 11/23/11), 77 So. 3d 939, 940–942
(per curiam) (considering motion to correct an illegal
sentence on the ground that Graham rendered illegal a
life-without-parole sentence for a juvenile nonhomicide
offender). Montgomery’s motion argued that Miller ren­
dered his mandatory life-without-parole sentence illegal.
The trial court denied Montgomery’s motion on the
ground that Miller is not retroactive on collateral review.
Montgomery then filed an application for a supervisory
writ. The Louisiana Supreme Court denied the applica­
tion. 2013–1163 (6/20/14), 141 So. 3d 264. The court
relied on its earlier decision in State v. Tate, 2012–2763,
130 So. 3d 829, which held that Miller does not have ret­
roactive effect in cases on state collateral review. Chief
Justice Johnson and Justice Hughes dissented in Tate,
and Chief Justice Johnson again noted her dissent in
Montgomery’s case.
This Court granted Montgomery’s petition for certiorari.
The petition presented the question “whether Miller
adopts a new substantive rule that applies retroactively on
Cite as: 577 U. S. ____ (2016) 5
Opinion of the Court
collateral review to people condemned as juveniles to die
in prison.” Pet. for Cert. i. In addition, the Court directed
the parties to address the following question: “Do we have
jurisdiction to decide whether the Supreme Court of Loui­
siana correctly refused to give retroactive effect in this
case to our decision in Miller?” 575 U. S. ___ (2015).
II
The parties agree that the Court has jurisdiction to
decide this case. To ensure this conclusion is correct, the
Court appointed Richard D. Bernstein as amicus curiae to
brief and argue the position that the Court lacks jurisdic­
tion. He has ably discharged his assigned responsibilities.
Amicus argues that a State is under no obligation to
give a new rule of constitutional law retroactive effect in
its own collateral review proceedings. As those proceed­
ings are created by state law and under the State’s plenary
control, amicus contends, it is for state courts to define
applicable principles of retroactivity. Under this view, the
Louisiana Supreme Court’s decision does not implicate a
federal right; it only determines the scope of relief avail-
able in a particular type of state proceeding—a question of
state law beyond this Court’s power to review.
If, however, the Constitution establishes a rule and
requires that the rule have retroactive application, then a
state court’s refusal to give the rule retroactive effect is
reviewable by this Court. Cf. Griffith v. Kentucky, 479
U.S. 314, 328 (1987) (holding that on direct review, a new
constitutional rule must be applied retroactively “to all
cases, state or federal”). States may not disregard a con­
trolling, constitutional command in their own courts. See
Martin v. Hunter’s Lessee, 1 Wheat. 304, 340–341, 344
(1816); see also Yates v. Aiken, 484 U.S. 211, 218 (1988)
(when a State has not “placed any limit on the issues that
it will entertain in collateral proceedings . . . it has a duty
to grant the relief that federal law requires”). Amicus’
6 MONTGOMERY v. LOUISIANA
Opinion of the Court
argument therefore hinges on the premise that this
Court’s retroactivity precedents are not a constitutional
mandate.
Justice O’Connor’s plurality opinion in Teague v. Lane,
489 U.S. 288 (1989), set forth a framework for retroactiv­
ity in cases on federal collateral review. Under Teague, a
new constitutional rule of criminal procedure does not
apply, as a general matter, to convictions that were final
when the new rule was announced. Teague recognized,
however, two categories of rules that are not subject to its
general retroactivity bar. First, courts must give retroac­
tive effect to new substantive rules of constitutional law.
Substantive rules include “rules forbidding criminal pun­
ishment of certain primary conduct,” as well as “rules
prohibiting a certain category of punishment for a class of
defendants because of their status or offense.” Penry v.
Lynaugh, 492 U.S. 302, 330 (1989); see also Teague, su-
pra, at 307. Although Teague describes new substantive
rules as an exception to the bar on retroactive application
of procedural rules, this Court has recognized that sub­
stantive rules “are more accurately characterized as . . .
not subject to the bar.” Schriro v. Summerlin, 542 U.S.
348, 352, n. 4 (2004). Second, courts must give retroactive
effect to new “ ‘ “watershed rules of criminal procedure”
implicating the fundamental fairness and accuracy of the
criminal proceeding.’ ” Id., at 352; see also Teague, 489
U.S., at 312–313.
It is undisputed, then, that Teague requires the retroac­
tive application of new substantive and watershed proce­
dural rules in federal habeas proceedings. Amicus, how­
ever, contends that Teague was an interpretation of the
federal habeas statute, not a constitutional command; and
so, the argument proceeds, Teague’s retroactivity holding
simply has no application in a State’s own collateral re­
view proceedings.
To support this claim, amicus points to language in
Cite as: 577 U. S. ____ (2016) 7
Opinion of the Court
Teague that characterized the Court’s task as “ ‘defin[ing]
the scope of the writ.’ ” Id., at 308 (quoting Kuhlmann v.
Wilson, 477 U.S. 436, 447 (1986) (plurality opinion)); see
also 489 U.S., at 317 (White, J., concurring in part and
concurring in judgment) (“If we are wrong in construing
the reach of the habeas corpus statutes, Congress can of
course correct us . . . ”); id., at 332 (Brennan, J., dissent­
ing) (“No new facts or arguments have come to light sug­
gesting that our [past] reading of the federal habeas stat­
ute . . . was plainly mistaken”).
In addition, amicus directs us to Danforth v. Minnesota,
552 U.S. 264 (2008), in which a majority of the Court held
that Teague does not preclude state courts from giving
retroactive effect to a broader set of new constitutional
rules than Teague itself required. 552 U.S., at 266. The
Danforth majority concluded that Teague’s general rule of
nonretroactivity for new constitutional rules of criminal
procedure “was an exercise of this Court’s power to inter­
pret the federal habeas statute.” 552 U.S., at 278. Since
Teague’s retroactivity bar “limit[s] only the scope of federal
habeas relief,” the Danforth majority reasoned, States are
free to make new procedural rules retroactive on state
collateral review. 552 U.S., at 281–282.
Amicus, however, reads too much into these statements.
Neither Teague nor Danforth had reason to address
whether States are required as a constitutional matter to
give retroactive effect to new substantive or watershed
procedural rules. Teague originated in a federal, not state,
habeas proceeding; so it had no particular reason to dis­
cuss whether any part of its holding was required by the
Constitution in addition to the federal habeas statute.
And Danforth held only that Teague’s general rule of
nonretroactivity was an interpretation of the federal ha­
beas statute and does not prevent States from providing
greater relief in their own collateral review courts. The
Danforth majority limited its analysis to Teague’s general
8 MONTGOMERY v. LOUISIANA
Opinion of the Court
retroactivity bar, leaving open the question whether
Teague’s two exceptions are binding on the States as a
matter of constitutional law. 552 U.S., at 278; see also
id., at 277 (“[T]he case before us now does not involve
either of the ‘Teague exceptions’ ”).
In this case, the Court must address part of the question
left open in Danforth. The Court now holds that when a
new substantive rule of constitutional law controls the
outcome of a case, the Constitution requires state collat­
eral review courts to give retroactive effect to that rule.
Teague’s conclusion establishing the retroactivity of new
substantive rules is best understood as resting upon con­
stitutional premises. That constitutional command is, like
all federal law, binding on state courts. This holding is
limited to Teague’s first exception for substantive rules;
the constitutional status of Teague’s exception for water­
shed rules of procedure need not be addressed here.
This Court’s precedents addressing the nature of sub­
stantive rules, their differences from procedural rules, and
their history of retroactive application establish that the
Constitution requires substantive rules to have retroactive
effect regardless of when a conviction became final.
The category of substantive rules discussed in Teague
originated in Justice Harlan’s approach to retroactivity.
Teague adopted that reasoning. See 489 U.S., at 292, 312
(discussing Mackey v. United States, 401 U.S. 667, 692
(1971) (opinion concurring in judgments in part and dis­
senting in part); and Desist v. United States, 394 U.S. 244,
261, n. 2 (1969) (Harlan, J., dissenting)). Justice Harlan
defined substantive constitutional rules as “those that
place, as a matter of constitutional interpretation, certain
kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.”
Mackey, supra, at 692. In Penry v. Lynaugh, decided four
months after Teague, the Court recognized that “the first
exception set forth in Teague should be understood to
Cite as: 577 U. S. ____ (2016) 9
Opinion of the Court
cover not only rules forbidding criminal punishment of
certain primary conduct but also rules prohibiting a cer­
tain category of punishment for a class of defendants
because of their status or offense.” 492 U.S., at 330.
Penry explained that Justice Harlan’s first exception
spoke “in terms of substantive categorical guarantees
accorded by the Constitution, regardless of the procedures
followed.” Id., at 329. Whether a new rule bars States
from proscribing certain conduct or from inflicting a cer­
tain punishment, “[i]n both cases, the Constitution itself
deprives the State of the power to impose a certain pen­
alty.” Id., at 330.
Substantive rules, then, set forth categorical constitu­
tional guarantees that place certain criminal laws and
punishments altogether beyond the State’s power to im­
pose. It follows that when a State enforces a proscription
or penalty barred by the Constitution, the resulting con­
viction or sentence is, by definition, unlawful. Procedural
rules, in contrast, are designed to enhance the accuracy of
a conviction or sentence by regulating “the manner of
determining the defendant’s culpability.” Schriro, 542
U.S., at 353; Teague, supra, at 313. Those rules “merely
raise the possibility that someone convicted with use of
the invalidated procedure might have been acquitted
otherwise.” Schriro, supra, at 352. Even where proce-
dural error has infected a trial, the resulting conviction or
sentence may still be accurate; and, by extension, the
defendant’s continued confinement may still be lawful.
For this reason, a trial conducted under a procedure found
to be unconstitutional in a later case does not, as a general
matter, have the automatic consequence of invalidating a
defendant’s conviction or sentence.
The same possibility of a valid result does not exist
where a substantive rule has eliminated a State’s power to
proscribe the defendant’s conduct or impose a given pun­
ishment. “[E]ven the use of impeccable factfinding proce­
10 MONTGOMERY v. LOUISIANA
Opinion of the Court
dures could not legitimate a verdict” where “the conduct
being penalized is constitutionally immune from punish­
ment.” United States v. United States Coin & Currency,
401 U.S. 715, 724 (1971). Nor could the use of flawless
sentencing procedures legitimate a punishment where the
Constitution immunizes the defendant from the sentence
imposed. “No circumstances call more for the invocation of
a rule of complete retroactivity.” Ibid.
By holding that new substantive rules are, indeed,
retroactive, Teague continued a long tradition of giving
retroactive effect to constitutional rights that go beyond
procedural guarantees. See Mackey, supra, at 692–693
(opinion of Harlan, J.) (“[T]he writ has historically been
available for attacking convictions on [substantive]
grounds”). Before Brown v. Allen, 344 U.S. 443 (1953),
“federal courts would never consider the merits of a consti­
tutional claim if the habeas petitioner had a fair oppor­
tunity to raise his arguments in the original proceeding.”
Desist, 394 U.S., at 261 (Harlan, J., dissenting). Even in
the pre-1953 era of restricted federal habeas, however, an
exception was made “when the habeas petitioner attacked
the constitutionality of the state statute under which he
had been convicted. Since, in this situation, the State had
no power to proscribe the conduct for which the petitioner
was imprisoned, it could not constitutionally insist that he
remain in jail.” Id., at 261, n. 2 (Harlan, J., dissenting)
(citation omitted).
In Ex parte Siebold, 100 U.S. 371 (1880), the Court
addressed why substantive rules must have retroactive
effect regardless of when the defendant’s conviction be­
came final. At the time of that decision, “[m]ere error in
the judgment or proceedings, under and by virtue of which
a party is imprisoned, constitute[d] no ground for the issue
of the writ.” Id., at 375. Before Siebold, the law might
have been thought to establish that so long as the convic­
tion and sentence were imposed by a court of competent
Cite as: 577 U. S. ____ (2016) 11
Opinion of the Court
jurisdiction, no habeas relief could issue. In Siebold,
however, the petitioners attacked the judgments on the
ground that they had been convicted under unconstitu­
tional statutes. The Court explained that if “this position
is well taken, it affects the foundation of the whole pro­
ceedings.” Id., at 376. A conviction under an unconstitu­
tional law
“is not merely erroneous, but is illegal and void, and
cannot be a legal cause of imprisonment. It is true, if
no writ of error lies, the judgment may be final, in the
sense that there may be no means of reversing it. But
. . . if the laws are unconstitutional and void, the Cir­
cuit Court acquired no jurisdiction of the causes.” Id.,
at 376–377.
As discussed, the Court has concluded that the same logic
governs a challenge to a punishment that the Constitution
deprives States of authority to impose. Penry, supra, at
330; see also Friendly, Is Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
151 (1970) (“Broadly speaking, the original sphere for
collateral attack on a conviction was where the tribunal
lacked jurisdiction either in the usual sense or because the
statute under which the defendant had been prosecuted
was unconstitutional or because the sentence was one the
court could not lawfully impose” (footnotes omitted)). A
conviction or sentence imposed in violation of a substan­
tive rule is not just erroneous but contrary to law and, as a
result, void. See Siebold, 100 U.S., at 376. It follows, as a
general principle, that a court has no authority to leave in
place a conviction or sentence that violates a substantive
rule, regardless of whether the conviction or sentence
became final before the rule was announced.
Siebold and the other cases discussed in this opinion, of
course, do not directly control the question the Court now
answers for the first time. These precedents did not in­
12 MONTGOMERY v. LOUISIANA
Opinion of the Court
volve a state court’s postconviction review of a conviction
or sentence and so did not address whether the Constitu­
tion requires new substantive rules to have retroactive
effect in cases on state collateral review. These decisions,
however, have important bearing on the analysis neces­
sary in this case.
In support of its holding that a conviction obtained
under an unconstitutional law warrants habeas relief, the
Siebold Court explained that “[a]n unconstitutional law is
void, and is as no law.” Ibid. A penalty imposed pursuant
to an unconstitutional law is no less void because the
prisoner’s sentence became final before the law was held
unconstitutional. There is no grandfather clause that
permits States to enforce punishments the Constitution
forbids. To conclude otherwise would undercut the Consti­
tution’s substantive guarantees. Writing for the Court in
United States Coin & Currency, Justice Harlan made this
point when he declared that “[n]o circumstances call more
for the invocation of a rule of complete retroactivity” than
when “the conduct being penalized is constitutionally
immune from punishment.” 401 U.S., at 724. United
States Coin & Currency involved a case on direct review;
yet, for the reasons explained in this opinion, the same
principle should govern the application of substantive
rules on collateral review. As Justice Harlan explained,
where a State lacked the power to proscribe the habeas
petitioner’s conduct, “it could not constitutionally insist
that he remain in jail.” Desist, supra, at 261, n. 2 (dissent­
ing opinion).
If a State may not constitutionally insist that a prisoner
remain in jail on federal habeas review, it may not consti­
tutionally insist on the same result in its own postconvic­
tion proceedings. Under the Supremacy Clause of the
Constitution, state collateral review courts have no greater
power than federal habeas courts to mandate that a
prisoner continue to suffer punishment barred by the
Cite as: 577 U. S. ____ (2016) 13
Opinion of the Court
Constitution. If a state collateral proceeding is open to a
claim controlled by federal law, the state court “has a duty
to grant the relief that federal law requires.” Yates, 484
U.S., at 218. Where state collateral review proceedings
permit prisoners to challenge the lawfulness of their con­
finement, States cannot refuse to give retroactive effect to
a substantive constitutional right that determines the
outcome of that challenge.
As a final point, it must be noted that the retroactive
application of substantive rules does not implicate a
State’s weighty interests in ensuring the finality of convic­
tions and sentences. Teague warned against the intru­
siveness of “continually forc[ing] the States to marshal
resources in order to keep in prison defendants whose
trials and appeals conformed to then-existing constitu­
tional standards.” 489 U.S., at 310. This concern has no
application in the realm of substantive rules, for no re­
sources marshaled by a State could preserve a conviction
or sentence that the Constitution deprives the State of
power to impose. See Mackey, 401 U.S., at 693 (opinion of
Harlan, J.) (“There is little societal interest in permitting
the criminal process to rest at a point where it ought
properly never to repose”).
In adjudicating claims under its collateral review proce­
dures a State may not deny a controlling right asserted
under the Constitution, assuming the claim is properly
presented in the case. Louisiana follows these basic Su­
premacy Clause principles in its postconviction proceed­
ings for challenging the legality of a sentence. The State’s
collateral review procedures are open to claims that a
decision of this Court has rendered certain sentences
illegal, as a substantive matter, under the Eighth
Amendment. See, e.g., State v. Dyer, 2011–1758, pp. 1–2
(La. 11/23/11), 77 So. 3d 928, 928–929 (per curiam) (con­
sidering claim on collateral review that this Court’s deci­
sion in Graham v. Florida, 560 U.S. 48, rendered peti­
14 MONTGOMERY v. LOUISIANA
Opinion of the Court
tioner’s life-without-parole sentence illegal). Montgomery
alleges that Miller announced a substantive constitutional
rule and that the Louisiana Supreme Court erred by
failing to recognize its retroactive effect. This Court has
jurisdiction to review that determination.
III
This leads to the question whether Miller’s prohibition
on mandatory life without parole for juvenile offenders
indeed did announce a new substantive rule that, under
the Constitution, must be retroactive.
As stated above, a procedural rule “regulate[s] only the
manner of determining the defendant’s culpability.”
Schriro, 542 U.S., at 353. A substantive rule, in contrast,
forbids “criminal punishment of certain primary conduct”
or prohibits “a certain category of punishment for a class
of defendants because of their status or offense.” Penry,
492 U.S., at 330; see also Schriro, supra, at 353 (A sub­
stantive rule “alters the range of conduct or the class of
persons that the law punishes”). Under this standard, and
for the reasons explained below, Miller announced a sub­
stantive rule that is retroactive in cases on collateral
review.
The “foundation stone” for Miller’s analysis was this
Court’s line of precedent holding certain punishments
disproportionate when applied to juveniles. 567 U. S., at
___, n. 4 (slip op., at 8, n. 4). Those cases include Graham
v. Florida, supra, which held that the Eighth Amendment
bars life without parole for juvenile nonhomicide offend­
ers, and Roper v. Simmons, 543 U.S. 551, which held that
the Eighth Amendment prohibits capital punishment for
those under the age of 18 at the time of their crimes.
Protection against disproportionate punishment is the
central substantive guarantee of the Eighth Amendment
and goes far beyond the manner of determining a defend­
ant’s sentence. See Graham, supra, at 59 (“The concept of
Cite as: 577 U. S. ____ (2016) 15
Opinion of the Court
proportionality is central to the Eighth Amendment”);
see also Weems v. United States, 217 U.S. 349, 367
(1910); Harmelin v. Michigan, 501 U.S. 957, 997–998
(1991) (KENNEDY, J., concurring in part and concurring in
judgment).
Miller took as its starting premise the principle estab­
lished in Roper and Graham that “children are constitu­
tionally different from adults for purposes of sentencing.”
567 U. S., at ___ (slip op., at 8) (citing Roper, supra, at
569–570; and Graham, supra, at 68). These differences
result from children’s “diminished culpability and greater
prospects for reform,” and are apparent in three primary
ways:
“First, children have a ‘lack of maturity and an un­
derdeveloped sense of responsibility,’ leading to reck­
lessness, impulsivity, and heedless risk-taking. Sec­
ond, children ‘are more vulnerable to negative
influences and outside pressures,’ including from their
family and peers; they have limited ‘control over their
own environment’ and lack the ability to extricate
themselves from horrific, crime-producing settings.
And third, a child’s character is not as ‘well formed’ as
an adult’s; his traits are ‘less fixed’ and his actions
less likely to be ‘evidence of irretrievable depravity.’ ”
567 U. S., at ___ (slip op., at 8) (quoting Roper, supra,
at 569–570; alterations, citations, and some internal
quotation marks omitted).
As a corollary to a child’s lesser culpability, Miller rec­
ognized that “the distinctive attributes of youth diminish
the penological justifications” for imposing life without
parole on juvenile offenders. 567 U. S., at ___ (slip op., at
9). Because retribution “relates to an offender’s blame­
worthiness, the case for retribution is not as strong with a
minor as with an adult.” Ibid. (quoting Graham, supra, at
71; internal quotation marks omitted). The deterrence
16 MONTGOMERY v. LOUISIANA
Opinion of the Court
rationale likewise does not suffice, since “the same charac­
teristics that render juveniles less culpable than adults—
their immaturity, recklessness, and impetuosity—make
them less likely to consider potential punishment.” 567
U. S., at ___–___ (slip op., at 9–10) (internal quotation
marks omitted). The need for incapacitation is lessened,
too, because ordinary adolescent development diminishes
the likelihood that a juvenile offender “ ‘forever will be a
danger to society.’ ” Id., at ___ (slip op., at 10) (quoting
Graham, 560 U.S., at 72). Rehabilitation is not a satisfac­
tory rationale, either. Rehabilitation cannot justify the
sentence, as life without parole “forswears altogether the
rehabilitative ideal.” 567 U. S., at ___ (slip op., at 10)
(quoting Graham, supra, at 74).
These considerations underlay the Court’s holding in
Miller that mandatory life-without-parole sentences for
children “pos[e] too great a risk of disproportionate pun­
ishment.” 567 U. S., at ___ (slip op., at 17). Miller re­
quires that before sentencing a juvenile to life without
parole, the sentencing judge take into account “how chil­
dren are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
Ibid. The Court recognized that a sentencer might
encounter the rare juvenile offender who exhibits such
irretrievable depravity that rehabilitation is impossible
and life without parole is justified. But in light of “chil­
dren’s diminished culpability and heightened capacity for
change,” Miller made clear that “appropriate occasions for
sentencing juveniles to this harshest possible penalty will
be uncommon.” Ibid.
Miller, then, did more than require a sentencer to con­
sider a juvenile offender’s youth before imposing life with­
out parole; it established that the penological justifications
for life without parole collapse in light of “the distinctive
attributes of youth.” Id., at ___ (slip op., at 9). Even if a
court considers a child’s age before sentencing him or her
Cite as: 577 U. S. ____ (2016) 17
Opinion of the Court
to a lifetime in prison, that sentence still violates the
Eighth Amendment for a child whose crime reflects “ ‘un­
fortunate yet transient immaturity.’ ” Id., at ___ (slip op.,
at 17) (quoting Roper, 543 U.S., at 573). Because Miller
determined that sentencing a child to life without parole is
excessive for all but “ ‘the rare juvenile offender whose
crime reflects irreparable corruption,’ ” 567 U. S., at ___
(slip op., at 17) (quoting Roper, supra, at 573), it rendered
life without parole an unconstitutional penalty for “a class
of defendants because of their status”—that is, juvenile
offenders whose crimes reflect the transient immaturity of
youth. Penry, 492 U.S., at 330. As a result, Miller an­
nounced a substantive rule of constitutional law. Like
other substantive rules, Miller is retroactive because it
“ ‘necessarily carr[ies] a significant risk that a defend-
ant’ ”—here, the vast majority of juvenile offenders—
“ ‘faces a punishment that the law cannot impose upon
him.’ ” Schriro, 542 U.S., at 352 (quoting Bousley v. United
States, 523 U.S. 614, 620 (1998)).
Louisiana nonetheless argues that Miller is procedural
because it did not place any punishment beyond the
State’s power to impose; it instead required sentencing
courts to take children’s age into account before condemn­
ing them to die in prison. In support of this argument,
Louisiana points to Miller’s statement that the decision
“does not categorically bar a penalty for a class of offend­
ers or type of crime—as, for example, we did in Roper or
Graham. Instead, it mandates only that a sentencer
follow a certain process—considering an offender’s youth
and attendant characteristics—before imposing a particu­
lar penalty.” Miller, supra, at ___ (slip op., at 20). Miller,
it is true, did not bar a punishment for all juvenile offend­
ers, as the Court did in Roper or Graham. Miller did bar
life without parole, however, for all but the rarest of juve­
nile offenders, those whose crimes reflect permanent
incorrigibility. For that reason, Miller is no less substan­
18 MONTGOMERY v. LOUISIANA
Opinion of the Court
tive than are Roper and Graham. Before Miller, every
juvenile convicted of a homicide offense could be sentenced
to life without parole. After Miller, it will be the rare
juvenile offender who can receive that same sentence. The
only difference between Roper and Graham, on the one
hand, and Miller, on the other hand, is that Miller drew a
line between children whose crimes reflect transient im­
maturity and those rare children whose crimes reflect
irreparable corruption. The fact that life without parole
could be a proportionate sentence for the latter kind of
juvenile offender does not mean that all other children
imprisoned under a disproportionate sentence have not
suffered the deprivation of a substantive right.
To be sure, Miller’s holding has a procedural component.
Miller requires a sentencer to consider a juvenile offend­
er’s youth and attendant characteristics before determin­
ing that life without parole is a proportionate sentence.
See 567 U. S., at ___ (slip op., at 20). Louisiana contends
that because Miller requires this process, it must have set
forth a procedural rule. This argument, however, con­
flates a procedural requirement necessary to implement a
substantive guarantee with a rule that “regulate[s] only
the manner of determining the defendant’s culpability.”
Schriro, supra, at 353. There are instances in which a
substantive change in the law must be attended by a
procedure that enables a prisoner to show that he falls
within the category of persons whom the law may no
longer punish. See Mackey, 401 U.S., at 692, n. 7 (opinion
of Harlan, J.) (“Some rules may have both procedural and
substantive ramifications, as I have used those terms
here”). For example, when an element of a criminal of­
fense is deemed unconstitutional, a prisoner convicted
under that offense receives a new trial where the govern­
ment must prove the prisoner’s conduct still fits within the
modified definition of the crime. In a similar vein, when
the Constitution prohibits a particular form of punishment
Cite as: 577 U. S. ____ (2016) 19
Opinion of the Court
for a class of persons, an affected prisoner receives a pro­
cedure through which he can show that he belongs to the
protected class. See, e.g., Atkins v. Virginia, 536 U.S. 304,
317 (2002) (requiring a procedure to determine whether a
particular individual with an intellectual disability “fall[s]
within the range of [intellectually disabled] offenders
about whom there is a national consensus” that execution
is impermissible). Those procedural requirements do not,
of course, transform substantive rules into procedural
ones.
The procedure Miller prescribes is no different. A hear­
ing where “youth and its attendant characteristics” are
considered as sentencing factors is necessary to separate
those juveniles who may be sentenced to life without
parole from those who may not. 567 U. S., at ___ (slip op.,
at 1). The hearing does not replace but rather gives effect
to Miller’s substantive holding that life without parole is
an excessive sentence for children whose crimes reflect
transient immaturity.
Louisiana suggests that Miller cannot have made a
constitutional distinction between children whose crimes
reflect transient immaturity and those whose crimes
reflect irreparable corruption because Miller did not re­
quire trial courts to make a finding of fact regarding a
child’s incorrigibility. That this finding is not required,
however, speaks only to the degree of procedure Miller
mandated in order to implement its substantive guaran­
tee. When a new substantive rule of constitutional law is
established, this Court is careful to limit the scope of any
attendant procedural requirement to avoid intruding more
than necessary upon the States’ sovereign administration
of their criminal justice systems. See Ford v. Wainwright,
477 U.S. 399, 416–417 (1986) (“[W]e leave to the State[s]
the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sen­
tences”). Fidelity to this important principle of federalism,
20 MONTGOMERY v. LOUISIANA
Opinion of the Court
however, should not be construed to demean the substan­
tive character of the federal right at issue. That Miller did
not impose a formal factfinding requirement does not
leave States free to sentence a child whose crime reflects
transient immaturity to life without parole. To the con­
trary, Miller established that this punishment is dispro­
portionate under the Eighth Amendment.
For this reason, the death penalty cases Louisiana cites
in support of its position are inapposite. See, e.g., Beard v.
Banks, 542 U.S. 406, 408 (2004) (holding nonretroactive
the rule that forbids instructing a jury to disregard miti­
gating factors not found by a unanimous vote); O’Dell v.
Netherland, 521 U.S. 151, 153 (1997) (holding nonretroac­
tive the rule providing that, if the prosecutor cites future
dangerousness, the defendant may inform the jury of his
ineligibility for parole); Sawyer v. Smith, 497 U.S. 227,
229 (1990) (holding nonretroactive the rule that forbids
suggesting to a capital jury that it is not responsible for a
death sentence). Those decisions altered the processes in
which States must engage before sentencing a person to
death. The processes may have had some effect on the
likelihood that capital punishment would be imposed, but
none of those decisions rendered a certain penalty uncon­
stitutionally excessive for a category of offenders.
The Court now holds that Miller announced a substan­
tive rule of constitutional law. The conclusion that Miller
states a substantive rule comports with the principles that
informed Teague. Teague sought to balance the important
goals of finality and comity with the liberty interests of
those imprisoned pursuant to rules later deemed unconsti­
tutional. Miller’s conclusion that the sentence of life
without parole is disproportionate for the vast majority of
juvenile offenders raises a grave risk that many are being
held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not
require States to relitigate sentences, let alone convic­
Cite as: 577 U. S. ____ (2016) 21
Opinion of the Court
tions, in every case where a juvenile offender received
mandatory life without parole. A State may remedy a
Miller violation by permitting juvenile homicide offenders
to be considered for parole, rather than by resentencing
them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013)
(juvenile homicide offenders eligible for parole after 25
years). Allowing those offenders to be considered for
parole ensures that juveniles whose crimes reflected only
transient immaturity—and who have since matured—will
not be forced to serve a disproportionate sentence in viola­
tion of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does
not impose an onerous burden on the States, nor does it
disturb the finality of state convictions. Those prisoners
who have shown an inability to reform will continue to
serve life sentences. The opportunity for release will be
afforded to those who demonstrate the truth of Miller’s
central intuition—that children who commit even heinous
crimes are capable of change.
Petitioner has discussed in his submissions to this Court
his evolution from a troubled, misguided youth to a model
member of the prison community. Petitioner states that
he helped establish an inmate boxing team, of which he
later became a trainer and coach. He alleges that he has
contributed his time and labor to the prison’s silkscreen
department and that he strives to offer advice and serve
as a role model to other inmates. These claims have not
been tested or even addressed by the State, so the Court
does not confirm their accuracy. The petitioner’s sub­
missions are relevant, however, as an example of one
kind of evidence that prisoners might use to demonstrate
rehabilitation.
* * *
Henry Montgomery has spent each day of the past 46
years knowing he was condemned to die in prison. Per­
22 MONTGOMERY v. LOUISIANA
Opinion of the Court
haps it can be established that, due to exceptional circum­
stances, this fate was a just and proportionate punishment
for the crime he committed as a 17-year-old boy. In light
of what this Court has said in Roper, Graham, and Miller
about how children are constitutionally different from
adults in their level of culpability, however, prisoners like
Montgomery must be given the opportunity to show their
crime did not reflect irreparable corruption; and, if it did
not, their hope for some years of life outside prison walls
must be restored.
The judgment of the Supreme Court of Louisiana is
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Cite as: 577 U. S. ____ (2016) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–280
_________________
HENRY MONTGOMERY, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA
[January 25, 2016]
JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
The Court has no jurisdiction to decide this case, and
the decision it arrives at is wrong. I respectfully dissent.
I. Jurisdiction
Louisiana postconviction courts willingly entertain
Eighth Amendment claims but, with limited exceptions,
apply the law as it existed when the state prisoner was
convicted and sentenced. Shortly after this Court an-
nounced Teague v. Lane, 489 U.S. 288 (1989), the Louisi-
ana Supreme Court adopted Teague’s framework to govern
the provision of postconviction remedies available to state
prisoners in its state courts as a matter of state law. Tay-
lor v. Whitley, 606 So. 2d 1292 (1992). In doing so, the
court stated that it was “not bound” to adopt that federal
framework. Id., at 1296. One would think, then, that it is
none of our business that a 69-year-old Louisiana prison-
er’s state-law motion to be resentenced according to Miller
v. Alabama, 567 U. S. ___ (2012), a case announced almost
half a century after his sentence was final, was met with a
firm rejection on state-law grounds by the Louisiana
Supreme Court. But a majority of this Court, eager to
reach the merits of this case, resolves the question of our
jurisdiction by deciding that the Constitution requires
state postconviction courts to adopt Teague’s exception for
2 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
so-called “substantive” new rules and to provide state-law
remedies for the violations of those rules to prisoners
whose sentences long ago became final. This conscription
into federal service of state postconviction courts is noth-
ing short of astonishing.
A
Teague announced that federal courts could not grant
habeas corpus to overturn state convictions on the basis of
a “new rule” of constitutional law—meaning one an-
nounced after the convictions became final—unless that
new rule was a “substantive rule” or a “watershed rul[e] of
criminal procedure.” 489 U.S., at 311. The Teague pre-
scription followed from Justice Harlan’s view of the “retro-
activity problem” detailed in his separate opinion in Desist
v. United States, 394 U.S. 244, 256 (1969) (dissenting
opinion), and later in Mackey v. United States, 401 U.S.
667, 675 (1971) (opinion concurring in judgment in part
and dissenting in part). Placing the rule’s first exception
in context requires more analysis than the majority has
applied.
The Court in the mid-20th century was confounded by
what Justice Harlan called the “swift pace of constitu-
tional change,” Pickelsimer v. Wainwright, 375 U.S. 2, 4
(1963) (dissenting opinion), as it vacated and remanded
many cases in the wake of Gideon v. Wainwright, 372
U.S. 335 (1963). Justice Harlan called upon the Court to
engage in “informed and deliberate consideration” of
“whether the States are constitutionally required to apply
[Gideon’s] new rule retrospectively, which may well re-
quire the reopening of cases long since finally adjudicated
in accordance with then applicable decisions of this
Court.” Pickelsimer, supra, at 3. The Court answered
that call in Linkletter v. Walker, 381 U.S. 618 (1965).
Linkletter began with the premise “that we are neither
required to apply, nor prohibited from applying, a decision
Cite as: 577 U. S. ____ (2016) 3
SCALIA, J., dissenting
retrospectively” and went on to adopt an equitable rule-by-
rule approach to retroactivity, considering “the prior his-
tory of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation.” Id., at 629.
The Linkletter framework proved unworkable when the
Court began applying the rule-by-rule approach not only
to cases on collateral review but also to cases on direct
review, rejecting any distinction “between convictions now
final” and “convictions at various stages of trial and direct
review.” Stovall v. Denno, 388 U.S. 293, 300 (1967). It
was this rejection that drew Justice Harlan’s reproach in
Desist and later in Mackey. He urged that “all ‘new’ rules
of constitutional law must, at a minimum, be applied to all
those cases which are still subject to direct review by this
Court at the time the ‘new’ decision is handed down.”
Desist, supra, at 258 (dissenting opinion). “Simply 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 constitute an indefen-
sible departure from th[e] model of judicial review.”
Mackey, supra, at 679.
The decision in Griffith v. Kentucky, 479 U.S. 314
(1987), heeded this constitutional concern. The Court
jettisoned the Linkletter test for cases pending on direct
review and adopted for them Justice Harlan’s rule of
redressability: “[F]ailure to apply a newly declared consti-
tutional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication.” 479
U.S., at 322 (emphasis added). We established in Griffith
that this Court must play by our own “old rules”—rules we
have settled before the defendant’s conviction and sen-
tence become final, even those that are a “clear break from
existing precedent”—for cases pending before us on direct
appeal. Id., at 323. Since the Griffith rule is constitution-
4 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
ally compelled, we instructed the lower state and federal
courts to comply with it as well. Ibid.
When Teague followed on Griffith’s heels two years
later, the opinion contained no discussion of “basic norms
of constitutional adjudication,” Griffith, supra, at 322, nor
any discussion of the obligations of state courts. Doing
away with Linkletter for good, the Court adopted Justice
Harlan’s solution to “the retroactivity problem” for cases
pending on collateral review—which he described not as a
constitutional problem but as “a problem as to the scope of
the habeas writ.” Mackey, supra, at 684 (emphasis added).
Teague held that federal habeas courts could no longer
upset state-court convictions for violations of so-called
“new rules,” not yet announced when the conviction be-
came final. 489 U.S., at 310. But it allowed for the previ-
ously mentioned exceptions to this rule of nonredressabil-
ity: substantive rules placing “certain kinds of primary,
private individual conduct beyond the power of the crimi-
nal law-making authority to proscribe” and “watershed
rules of criminal procedure.” Id., at 311. Then in Penry v.
Lynaugh, 492 U.S. 302 (1989), the Court expanded this
first exception for substantive rules to embrace new rules
“prohibiting a certain category of punishment for a class of
defendants because of their status or offense.” Id., at 330.
Neither Teague nor its exceptions are constitutionally
compelled. Unlike today’s majority, the Teague-era Court
understood that cases on collateral review are fundamen-
tally different from those pending on direct review because
of “considerations of finality in the judicial process.” Shea
v. Louisiana, 470 U.S. 51, 59–60 (1985). That line of
finality demarcating the constitutionally required rule in
Griffith from the habeas rule in Teague supplies the an-
swer to the not-so-difficult question whether a state post-
conviction court must remedy the violation of a new sub-
stantive rule: No. A state court need only apply the law as
it existed at the time a defendant’s conviction and sen-
Cite as: 577 U. S. ____ (2016) 5
SCALIA, J., dissenting
tence became final. See Griffith, supra, at 322. And once
final, “a new rule cannot reopen a door already closed.”
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
541 (1991) (opinion of Souter, J.). Any relief a prisoner
might receive in a state court after finality is a matter of
grace, not constitutional prescription.
B
The majority can marshal no case support for its con-
trary position. It creates a constitutional rule where none
had been before: “Teague’s conclusion establishing the
retroactivity of new substantive rules is best understood
as resting upon constitutional premises” binding in both
federal and state courts. Ante, at 8. “Best understood.”
Because of what? Surely not because of its history and
derivation.
Because of the Supremacy Clause, says the majority.
Ante, at 12. But the Supremacy Clause cannot possibly
answer the question before us here. It only elicits another
question: What federal law is supreme? Old or new? The
majority’s champion, Justice Harlan, said the old rules
apply for federal habeas review of a state-court conviction:
“[T]he habeas court need only apply the constitutional
standards that prevailed at the time the original proceed-
ings took place,” Desist, 394 U.S., at 263 (dissenting opin-
ion), for a state court cannot “toe the constitutional mark”
that does not yet exist, Mackey, 401 U.S., at 687 (opinion
of Harlan, J.). Following his analysis, we have clarified
time and again—recently in Greene v. Fisher, 565 U. S.
___, ___–___ (2011) (slip op., at 4–5)—that federal habeas
courts are to review state-court decisions against the law
and factual record that existed at the time the decisions
were made. “Section 2254(d)(1) [of the federal habeas
statute] refers, in the past tense, to a state-court adjudica-
tion that ‘resulted in’ a decision that was contrary to, or
‘involved’ an unreasonable application of, established law.
6 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
This backward-looking language requires an examination
of the state-court decision at the time it was made.” Cul-
len v. Pinholster, 563 U.S. 170, 181–182 (2011). How can
it possibly be, then, that the Constitution requires a state
court’s review of its own convictions to be governed by
“new rules” rather than (what suffices when federal courts
review state courts) “old rules”?
The majority relies on the statement in United States v.
United States Coin & Currency, 401 U.S. 715 (1971), that
“ ‘[n]o circumstances call more for the invocation of a rule
of complete retroactivity’ ” than when “ ‘the conduct being
penalized is constitutionally immune from punishment.’ ”
Ante, at 9–10 (quoting 401 U.S., at 724). The majority
neglects to mention that this statement was addressing
the “circumstances” of a conviction that “had not become
final,” id., at 724, n. 13 (emphasis added), when the “rule
of complete retroactivity” was invoked. Coin & Currency,
an opinion written by (guess whom?) Justice Harlan,
merely foreshadowed the rule announced in Griffith, that
all cases pending on direct review receive the benefit of
newly announced rules—better termed “old rules” for such
rules were announced before finality.
The majority also misappropriates Yates v. Aiken, 484
U.S. 211 (1988), which reviewed a state habeas petition-
er’s Fourteenth Amendment claim that the jury instruc-
tions at his trial lessened the State’s burden to prove every
element of his offense beyond a reasonable doubt. That
case at least did involve a conviction that was final. But
the majority is oblivious to the critical fact that Yates’s
claim depended upon an old rule, settled at the time of his
trial. Id., at 217. This Court reversed the state habeas
court for its refusal to consider that the jury instructions
violated that old rule. Ibid. The majority places great
weight upon the dictum in Yates that the South Carolina
habeas court “ ‘ha[d] a duty to grant the relief that federal
law requires.’ ” Ante, at 13 (quoting Yates, supra, at 218).
Cite as: 577 U. S. ____ (2016) 7
SCALIA, J., dissenting
It is simply wrong to divorce that dictum from the facts it
addressed. In that context, Yates merely reinforces the
line drawn by Griffith: when state courts provide a forum
for postconviction relief, they need to play by the “old
rules” announced before the date on which a defendant’s
conviction and sentence became final.
The other sleight of hand performed by the majority is
its emphasis on Ex parte Siebold, 100 U.S. 371 (1880).
That case considered a petition for a federal writ of habeas
corpus following a federal conviction, and the initial issue
it confronted was its jurisdiction. A federal court has no
inherent habeas corpus power, Ex parte Bollman, 4
Cranch 75, 94 (1807), but only that which is conferred
(and limited) by statute, see, e.g., Felker v. Turpin, 518
U.S. 651, 664 (1996). As Siebold stated, it was forbidden
to use the federal habeas writ “as a mere writ of error.”
100 U.S., at 375. “The only ground on which this court, or
any court, without some special statute authorizing it,
[could] give relief on habeas corpus to a prisoner under
conviction and sentence of another court is the want of
jurisdiction in such court over the person or the cause, or
some other matter rendering its proceedings void.” Ibid.
Turning to the facts before it, the Court decided it was
within its power to hear Siebold’s claim, which did not
merely protest that the conviction and sentence were
“erroneous” but contended that the statute he was con-
victed of violating was unconstitutional and the conviction
therefore void: “[I]f the laws are unconstitutional and void,
the Circuit Court acquired no jurisdiction of the causes.”
Id., at 376–377. Siebold is thus a decision that expands
the limits of this Court’s power to issue a federal habeas
writ for a federal prisoner.
The majority, however, divines from Siebold “a general
principle” that “a court has no authority to leave in place a
conviction or sentence that violates a substantive rule,
regardless of whether the conviction or sentence became
8 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
final before the rule was announced.” Ante, at 11. That is
utterly impossible. No “general principle” can rationally
be derived from Siebold about constitutionally required
remedies in state courts; indeed, the opinion does not even
speak to constitutionally required remedies in federal
courts. It is a decision about this Court’s statutory power
to grant the Original Writ, not about its constitutional
obligation to do so. Nowhere in Siebold did this Court
intimate that relief was constitutionally required—or as
the majority puts it, that a court would have had “no
authority” to leave in place Siebold’s conviction, ante, at
11.
The majority’s sorry acknowledgment that “Siebold and
the other cases discussed in this opinion, of course, do not
directly control the question the Court now answers for
the first time,” ibid., is not nearly enough of a disclaimer.
It is not just that they “do not directly control,” but that
the dicta cherry picked from those cases are irrelevant;
they addressed circumstances fundamentally different
from those to which the majority now applies them. In-
deed, we know for sure that the author of some of those
dicta, Justice Harlan, held views that flatly contradict the
majority.
The majority’s maxim that “state collateral review
courts have no greater power than federal habeas courts to
mandate that a prisoner continue to suffer punishment
barred by the Constitution,” ante, at 12–13, begs the ques-
tion rather than contributes to its solution. Until today,
no federal court was constitutionally obliged to grant relief
for the past violation of a newly announced substantive
rule. Until today, it was Congress’s prerogative to do
away with Teague’s exceptions altogether. Indeed, we had
left unresolved the question whether Congress had al-
ready done that when it amended a section of the habeas
corpus statute to add backward-looking language govern-
ing the review of state-court decisions. See Antiterrorism
Cite as: 577 U. S. ____ (2016) 9
SCALIA, J., dissenting
and Effective Death Penalty Act of 1996, §104, 110 Stat.
1219, codified at 28 U.S. C. §2254(d)(1); Greene, 565 U. S,
at ___, n. (slip op., at 5, n.). A maxim shown to be more
relevant to this case, by the analysis that the majority
omitted, is this: The Supremacy Clause does not impose
upon state courts a constitutional obligation it fails to
impose upon federal courts.
C
All that remains to support the majority’s conclusion is
that all-purpose Latin canon: ipse dixit. The majority
opines that because a substantive rule eliminates a State’s
power to proscribe certain conduct or impose a certain
punishment, it has “the automatic consequence of invali-
dating a defendant’s conviction or sentence.” Ante, at 9.
What provision of the Constitution could conceivably
produce such a result? The Due Process Clause? It surely
cannot be a denial of due process for a court to pronounce
a final judgment which, though fully in accord with federal
constitutional law at the time, fails to anticipate a change
to be made by this Court half a century into the future.
The Equal Protection Clause? Both statutory and (in-
creasingly) constitutional laws change. If it were a denial
of equal protection to hold an earlier defendant to a law
more stringent than what exists today, it would also be a
denial of equal protection to hold a later defendant to a
law more stringent than what existed 50 years ago. No
principle of equal protection requires the criminal law of
all ages to be the same.
The majority grandly asserts that “[t]here is no grandfa-
ther clause that permits States to enforce punishments the
Constitution forbids.” Ante, at 12 (emphasis added). Of
course the italicized phrase begs the question. There most
certainly is a grandfather clause—one we have called
finality—which says that the Constitution does not re-
quire States to revise punishments that were lawful when
10 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
they were imposed. Once a conviction has become final,
whether new rules or old ones will be applied to revisit the
conviction is a matter entirely within the State’s control;
the Constitution has nothing to say about that choice. The
majority says that there is no “possibility of a valid result”
when a new substantive rule is not applied retroactively.
Ante, at 9. But the whole controversy here arises because
many think there is a valid result when a defendant has
been convicted under the law that existed when his convic-
tion became final. And the States are unquestionably
entitled to take that view of things.
The majority’s imposition of Teague’s first exception
upon the States is all the worse because it does not adhere
to that exception as initially conceived by Justice Harlan—
an exception for rules that “place, as a matter of constitu-
tional interpretation, certain kinds of primary, private
individual conduct beyond the power of the criminal law-
making authority to proscribe.” Mackey, 401 U.S., at 692
(emphasis added). Rather, it endorses the exception as
expanded by Penry, to include “rules prohibiting a certain
category of punishment for a class of defendants because
of their status or offense.” 492 U.S., at 330. That expan-
sion empowered and obligated federal (and after today
state) habeas courts to invoke this Court’s Eighth
Amendment “evolving standards of decency” jurisprudence
to upset punishments that were constitutional when im-
posed but are “cruel and unusual,” U. S. Const., Amdt. 8,
in our newly enlightened society. See Trop v. Dulles, 356
U.S. 86, 101 (1958). The “evolving standards” test con-
cedes that in 1969 the State had the power to punish
Henry Montgomery as it did. Indeed, Montgomery could
at that time have been sentenced to death by our yet
unevolved society. Even 20 years later, this Court reaf-
firmed that the Constitution posed no bar to death sen-
tences for juveniles. Stanford v. Kentucky, 492 U.S. 361
(1989). Not until our People’s “standards of decency”
Cite as: 577 U. S. ____ (2016) 11
SCALIA, J., dissenting
evolved a mere 10 years ago—nearly 40 years after Mont-
gomery’s sentence was imposed—did this Court declare
the death penalty unconstitutional for juveniles. Roper v.
Simmons, 543 U.S. 551 (2005). Even then, the Court
reassured States that “the punishment of life imprison-
ment without the possibility of parole is itself a severe
sanction,” implicitly still available for juveniles. Id., at
572. And again five years ago this Court left in place this
severe sanction for juvenile homicide offenders. Graham
v. Florida, 560 U.S. 48, 69 (2010). So for the five decades
Montgomery has spent in prison, not one of this Court’s
precedents called into question the legality of his sen-
tence—until the People’s “standards of decency,” as per-
ceived by five Justices, “evolved” yet again in Miller.
Teague’s central purpose was to do away with the old
regime’s tendency to “continually force the States to mar-
shal resources in order to keep in prison defendants whose
trials and appeals conformed to then-existing constitu-
tional standards.” 489 U.S., at 310. Today’s holding
thwarts that purpose with a vengeance. Our ever-evolving
Constitution changes the rules of “cruel and unusual
punishments” every few years. In the passage from
Mackey that the majority’s opinion quotes, ante, at 13,
Justice Harlan noted the diminishing force of finality (and
hence the equitable propriety—not the constitutional
requirement—of disregarding it) when the law punishes
nonpunishable conduct, see 401 U.S., at 693. But one
cannot imagine a clearer frustration of the sensible policy
of Teague when the ever-moving target of impermissible
punishments is at issue. Today’s holding not only fore-
closes Congress from eliminating this expansion of Teague
in federal courts, but also foists this distortion upon the
States.
II. The Retroactivity of Miller
Having created jurisdiction by ripping Teague’s first
12 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
exception from its moorings, converting an equitable rule
governing federal habeas relief to a constitutional com-
mand governing state courts as well, the majority proceeds
to the merits. And here it confronts a second obstacle to
its desired outcome. Miller, the opinion it wishes to im-
pose upon state postconviction courts, simply does not
decree what the first part of the majority’s opinion says
Teague’s first exception requires to be given retroactive
effect: a rule “set[ting] forth categorical constitutional
guarantees that place certain criminal laws and punish-
ments altogether beyond the State’s power to impose.”
Ante, at 9 (emphasis added). No problem. Having distorted
Teague, the majority simply proceeds to rewrite Miller.
The majority asserts that Miller “rendered life without
parole an unconstitutional penalty for ‘a class of defend-
ants because of their status’—that is, juvenile offenders
whose crimes reflect the transient immaturity of youth.”
Ante, at 17. It insists that Miller barred life-without-
parole sentences “for all but the rarest of juvenile offend-
ers, those whose crimes reflect permanent incorrigibility.
For that reason, Miller is no less substantive than are
Roper and Graham.” Ante, at 17–18. The problem is that
Miller stated, quite clearly, precisely the opposite: “Our
decision does not categorically bar a penalty for a class of
offenders or type of crime—as, for example, we did in
Roper or Graham. Instead, it mandates only that a sen-
tencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing a
particular penalty.” 567 U. S., at ___ (slip op., at 20)
(emphasis added).
To contradict that clear statement, the majority opinion
quotes passages from Miller that assert such things as
“mandatory life-without-parole sentences for children
‘pos[e] too great a risk of disproportionate punishment’ ”
and “ ‘appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.’ ” Ante, at 16
Cite as: 577 U. S. ____ (2016) 13
SCALIA, J., dissenting
(quoting Miller, supra, at ___ (slip op., at 17)). But to say
that a punishment might be inappropriate and dispropor-
tionate for certain juvenile offenders is not to say that it is
unconstitutionally void. All of the statements relied on by
the majority do nothing more than express the reason why
the new, youth-protective procedure prescribed by Miller is
desirable: to deter life sentences for certain juvenile of-
fenders. On the issue of whether Miller rendered life-
without-parole penalties unconstitutional, it is impossible
to get past Miller’s unambiguous statement that “[o]ur
decision does not categorically bar a penalty for a class of
offenders” and “mandates only that a sentencer follow a
certain process . . . before imposing a particular penalty.”
567 U. S., at ___ (slip op., at 20). It is plain as day that the
majority is not applying Miller, but rewriting it.1
And the rewriting has consequences beyond merely
making Miller’s procedural guarantee retroactive. If,
indeed, a State is categorically prohibited from imposing
life without parole on juvenile offenders whose crimes do
not “reflect permanent incorrigibility,” then even when the
procedures that Miller demands are provided the constitu-
tional requirement is not necessarily satisfied. It remains
available for the defendant sentenced to life without pa-
role to argue that his crimes did not in fact “reflect per-
manent incorrigibility.” Or as the majority’s opinion puts
it: “That Miller did not impose a formal factfinding re-
quirement does not leave States free to sentence a child[2]
——————
1 It is amusing that the majority’s initial description of Miller is the
same as our own: “[T]he Court held that a juvenile convicted of a
homicide offense could not be sentenced to life in prison without parole
absent consideration of the juvenile’s special circumstances in light of
the principles and purposes of juvenile sentencing.” Ante, at 1. Only 15
pages later, after softening the reader with 3 pages of obfuscating
analysis, does the majority dare to attribute to Miller that which Miller
explicitly denies.
2 The majority presumably regards any person one day short of voting
age as a “child.”
14 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that this pun-
ishment is disproportionate under the Eighth Amend-
ment.” Ante, at 20.
How wonderful. Federal and (like it or not) state judges
are henceforth to resolve the knotty “legal” question:
whether a 17-year-old who murdered an innocent sheriff ’s
deputy half a century ago was at the time of his trial
“incorrigible.” Under Miller, bear in mind, the inquiry is
whether the inmate was seen to be incorrigible when he
was sentenced—not whether he has proven corrigible and
so can safely be paroled today. What silliness. (And how
impossible in practice, see Brief for National District
Attorneys Assn. et al. as Amici Curiae 9–17.) When in
Lockett v. Ohio, 438 U.S. 586, 608 (1978), the Court im-
posed the thitherto unheard-of requirement that the sen-
tencer in capital cases must consider and weigh all “rele-
vant mitigating factors,” it at least did not impose the
substantive (and hence judicially reviewable) requirement
that the aggravators must outweigh the mitigators; it
would suffice that the sentencer thought so. And, fairly
read, Miller did the same. Not so with the “incorrigibility”
requirement that the Court imposes today to make Miller
retroactive.
But have no fear. The majority does not seriously ex-
pect state and federal collateral-review tribunals to en-
gage in this silliness, probing the evidence of “incorrigibil-
ity” that existed decades ago when defendants were
sentenced. What the majority expects (and intends) to
happen is set forth in the following not-so-subtle invita-
tion: “A State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole,
rather than by resentencing them.” Ante, at 21. Of
course. This whole exercise, this whole distortion of Mil-
ler, is just a devious way of eliminating life without parole
for juvenile offenders. The Court might have done that
Cite as: 577 U. S. ____ (2016) 15
SCALIA, J., dissenting
expressly (as we know, the Court can decree anything),
but that would have been something of an embarrassment.
After all, one of the justifications the Court gave for de-
creeing an end to the death penalty for murders (no mat-
ter how many) committed by a juvenile was that life with-
out parole was a severe enough punishment. See Roper,
543 U.S., at 572. How could the majority—in an opinion
written by the very author of Roper—now say that pun-
ishment is also unconstitutional? The Court expressly
refused to say so in Miller. 567 U. S., at ___ (slip op., at
17). So the Court refuses again today, but merely makes
imposition of that severe sanction a practical impossibil-
ity. And then, in Godfather fashion, the majority makes
state legislatures an offer they can’t refuse: Avoid all the
utterly impossible nonsense we have prescribed by simply
“permitting juvenile homicide offenders to be considered
for parole.” Ante, at 21. Mission accomplished.
Cite as: 577 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–280
_________________
HENRY MONTGOMERY, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA
[January 25, 2016]
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA’s dissent. I write separately to
explain why the Court’s resolution of the jurisdictional
question, ante, at 5–14, lacks any foundation in the Con-
stitution’s text or our historical traditions. We have juris-
diction under 28 U.S. C. §1257 only if the Louisiana Su-
preme Court’s decision implicates a federal right. That
condition is satisfied, the Court holds, because the Consti-
tution purportedly requires state and federal postconvic-
tion courts to give “retroactive effect” to new substantive
constitutional rules by applying them to overturn long-
final convictions and sentences. Ante, at 8. Because our
Constitution and traditions embrace no such right, I re-
spectfully dissent.
I
“[O]ur jurisprudence concerning the ‘retroactivity’ of
‘new rules’ of constitutional law is primarily concerned,
not with the question whether a constitutional violation
occurred, but with the availability or nonavailability of
remedies.” Danforth v. Minnesota, 552 U.S. 264, 290–291
(2008). Accordingly, the issue in this case is not whether
prisoners who received mandatory life-without-parole
sentences for crimes they committed decades ago as juve-
niles had an Eighth Amendment right not to receive such
a sentence. Rather, the question is how, when, and in
2 MONTGOMERY v. LOUISIANA
THOMAS, J., dissenting
what forum that newfound right can be enforced. See
ibid.
The Court answers that question one way: It says that
state postconviction and federal habeas courts are consti-
tutionally required to supply a remedy because a sentence
or conviction predicated upon an unconstitutional law is a
legal nullity. See ante, at 8–14. But nothing in the Con-
stitution’s text or in our constitutional tradition provides
such a right to a remedy on collateral review.
A
No provision of the Constitution supports the Court’s
holding. The Court invokes only the Supremacy Clause,
asserting that the Clause deprives state and federal post-
conviction courts alike of power to leave an unconstitu-
tional sentence in place. Ante, at 12–13. But that leaves
the question of what provision of the Constitution supplies
that underlying prohibition.
The Supremacy Clause does not do so. That Clause
merely supplies a rule of decision: If a federal constitu-
tional right exists, that right supersedes any contrary
provisions of state law. See Art. VI, cl. 2 (“This Constitu-
tion, and the Laws of the United States which shall be
made in Pursuance thereof . . . shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding”). Accordingly, as
we reaffirmed just last Term, the Supremacy Clause is no
independent font of substantive rights. Armstrong v.
Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015)
(slip op., at 3).
Nor am I aware of any other provision in the Constitu-
tion that would support the Court’s new constitutional
right to retroactivity. Of the natural places to look—
Article III, the Due Process Clauses of the Fifth and Four-
teenth Amendments, and the Equal Protection Clause of
Cite as: 577 U. S. ____ (2016) 3
THOMAS, J., dissenting
the Fourteenth Amendment—none establishes a right to
void an unconstitutional sentence that has long been final.
To begin, Article III does not contain the requirement
that the Court announces today. Article III vests “[t]he
judicial Power” in this Court and whatever inferior courts
Congress creates, Art. III, §1, and “extend[s]” that power
to various “Cases . . . and Controversies,” Art. III, §2.
Article III thus defines the scope of federal judicial power.
It cannot compel state postconviction courts to apply new
substantive rules retroactively.
Even if the Court’s holding were limited to federal
courts, Article III would not justify it. The nature of “judi-
cial power” may constrain the retroactivity rules that
Article III courts can apply.* But even our broad modern
precedents treat Article III as requiring courts to apply
new rules only on direct review. Thus in Griffith v. Ken-
tucky, 479 U.S. 314 (1987), the Court suggested—based
on Justice Harlan’s views—that “after we have 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.” Id., at 322–323. But, as Jus-
tice Harlan had explained, that view of Article III has no
force on collateral review: “While the entire theoretical
underpinnings of judicial review and constitutional su-
premacy dictate that federal courts having jurisdiction on
direct review adjudicate every issue of law . . . fairly impli-
cated by the trial process below and properly presented on
appeal, federal courts have never had a similar obligation
on habeas corpus.” Mackey v. United States, 401 U.S.
667, 682 (1971) (opinion concurring in judgment in part
and dissenting in part).
——————
* For instance, Article III courts cannot arrive at a holding, refuse to
apply it to the case at hand, and limit its application to future cases
involving yet-to-occur events. The power to rule prospectively in this
way is a quintessentially legislative power. See Harper v. Virginia
Dept. of Taxation, 509 U.S. 86, 106–110 (1993) (SCALIA, J., concurring).
4 MONTGOMERY v. LOUISIANA
THOMAS, J., dissenting
The Court’s holding also cannot be grounded in the Due
Process Clause’s prohibition on “depriv[ations] . . . of life,
liberty, or property, without due process of law.” Amdts. V
and XIV, §1. Quite possibly, “ ‘[d]ue process of law’ was
originally used as a shorthand expression for governmen-
tal proceedings according to the ‘law of the land’ as it
existed at the time of those proceedings.” In re Winship,
397 U.S. 358, 378 (1970) (Black, J., dissenting) (emphasis
added); accord, Johnson v. United States, 576 U. S.
___, ___ (2015) (THOMAS, J., concurring in judgment)
(slip op., at 17). Under that understanding, due process
excluded any right to have new substantive rules apply
retroactively.
Even if due process required courts to anticipate this
Court’s new substantive rules, it would not compel courts
to revisit settled convictions or sentences on collateral
review. We have never understood due process to require
further proceedings once a trial ends. The Clause “does
not establish any right to an appeal . . . and certainly does
not establish any right to collaterally attack a final judg-
ment of conviction.” United States v. MacCollom, 426
U.S. 317, 323 (1976) (plurality opinion); see Pennsylvania
v. Finley, 481 U.S. 551, 557 (1987) (“States have no obli-
gation to provide [postconviction] relief ”). Because the
Constitution does not require postconviction remedies, it
certainly does not require postconviction courts to revisit
every potential type of error. Cf. Martinez v. Court of
Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 165–
166 (2000) (SCALIA, J., concurring in judgment) (“Since a
State could . . . subject its trial-court determinations to no
review whatever, it could a fortiori subject them to review
which consists of a nonadversarial reexamination of con-
victions by a panel of government experts”).
Nor can the Equal Protection Clause justify requiring
courts on collateral review to apply new substantive rules
retroactively. That Clause prohibits a State from “de-
Cite as: 577 U. S. ____ (2016) 5
THOMAS, J., dissenting
ny[ing] to any person within its jurisdiction the equal
protection of the laws.” Amdt. XIV, §1. But under our
precedents “a classification neither involving fundamental
rights nor proceeding along suspect lines . . . cannot run
afoul of the Equal Protection Clause if there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose.” Armour v. Indianapo-
lis, 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quota-
tion marks omitted; ellipsis in original).
The disparity the Court eliminates today—between
prisoners whose cases were on direct review when this
Court announced a new substantive constitutional rule,
and those whose convictions had already become final—is
one we have long considered rational. “[T]he notion that
different standards should apply on direct and collateral
review runs throughout our recent habeas jurisprudence.”
Wright v. West, 505 U.S. 277, 292 (1992); see Brecht v.
Abrahamson, 507 U.S. 619, 633–635 (1993). Thus, our
precedents recognize a right to counsel on direct review,
but not in collateral proceedings. Compare Douglas v.
California, 372 U.S. 353, 355–358 (1963) (courts must
provide counsel on an initial direct appeal), with Finley,
supra, at 555 (no such right on habeas). The Fourth
Amendment also applies differently on direct and collat-
eral review. Compare Mapp v. Ohio, 367 U.S. 643, 654–
660 (1961) (courts on direct review must exclude evidence
obtained in violation of the Fourth Amendment), with
Stone v. Powell, 428 U.S. 465, 489–496 (1976) (no relitiga-
tion of such claims on collateral review).
These distinctions are reasonable. They reflect the
“significant costs” of collateral review, including disrup-
tion of “the State’s significant interest in repose for con-
cluded litigation.” Wright, supra, at 293 (internal quota-
tion marks omitted). Our equal protection precedents,
therefore, do not compel a uniform rule of retroactivity in
direct and collateral proceedings for new substantive
6 MONTGOMERY v. LOUISIANA
THOMAS, J., dissenting
constitutional rules.
B
The Court’s new constitutional right also finds no basis
in the history of state and federal postconviction proceed-
ings. Throughout our history, postconviction relief for
alleged constitutional defects in a conviction or sentence
was available as a matter of legislative grace, not constitu-
tional command.
The Constitution mentions habeas relief only in the
Suspension Clause, which specifies that “[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety
may require it.” Art. I, §9, cl. 2. But that Clause does not
specify the scope of the writ. And the First Congress, in
prescribing federal habeas jurisdiction in the 1789 Judici-
ary Act, understood its scope to reflect “the black-letter
principle of the common law that the writ was simply not
available at all to one convicted of crime by a court of
competent jurisdiction.” Bator, Finality in Criminal Law
and Federal Habeas Corpus for State Prisoners, 76 Harv.
L. Rev. 441, 466 (1963). Early cases echoed that under-
standing. E.g., Ex parte Watkins, 3 Pet. 193, 202 (1830)
(“An imprisonment under a judgment cannot be unlawful,
unless that judgment be an absolute nullity; and it is not a
nullity if the court has general jurisdiction of the subject,
although it should be erroneous”).
For nearly a century thereafter, this Court understood
the Judiciary Act and successor provisions as limiting
habeas relief to instances where the court that rendered
the judgment lacked jurisdiction over the general category
of offense or the person of the prisoner. See Wright, supra,
at 285 (recounting history). Federal habeas courts thus
afforded no remedy for a claim that a sentence or convic-
tion was predicated on an unconstitutional law. Nor did
States. Indeed, until 1836, Vermont made no provision for
Cite as: 577 U. S. ____ (2016) 7
THOMAS, J., dissenting
any state habeas proceedings. See Oaks, Habeas Corpus
in the States 1776–1865, 32 U. Chi. L. Rev. 243, 250
(1965). Even when States allowed collateral attacks in
state court, review was unavailable if the judgment of
conviction was rendered by a court with general jurisdic-
tion over the subject matter and the defendant. Id., at
261–262.
The Court portrays Ex parte Siebold, 100 U.S. 371
(1880), as a departure from this history and as the genesis
of a constitutional principle that “a conviction obtained
under an unconstitutional law warrants habeas relief.”
Ante, at 12. But Siebold—a case construing the scope of
federal habeas review under the 1789 Judiciary Act—does
not support the Court’s position. Ante, at 7–8 (SCALIA, J.,
dissenting). Siebold did not imply that the Constitution
requires courts to stop enforcing convictions under an
unconstitutional law. Rather, Siebold assumed that pris-
oners would lack a remedy if the federal habeas statute
did not allow challenges to such convictions. 100 U.S., at
377 (“It is true, if no writ of error lies, the judgment may
be final, in the sense that there may be no means of re-
versing it”).
Moreover, when Congress authorized appeals as a mat-
ter of right in federal criminal cases, the Court renounced
Siebold and stopped entertaining federal habeas chal-
lenges to the constitutionality of the statute under which a
defendant was sentenced or convicted. See Bator, supra,
at 473–474, and n. 77. If the Constitution prevented
courts from enforcing a void conviction or sentence even
after the conviction is final, this Court would have been
incapable of withdrawing relief.
The Court’s purported constitutional right to retroactiv-
ity on collateral review has no grounding even in our mod-
ern precedents. In the 1950’s, this Court began recogniz-
ing many new constitutional rights in criminal proceed-
ings. Even then, however, the Court did not perceive any
8 MONTGOMERY v. LOUISIANA
THOMAS, J., dissenting
constitutional right for prisoners to vacate their convic-
tions or sentences on collateral review based on the
Court’s new interpretations of the Constitution. To the
contrary, the Court derived Miranda warnings and the
exclusionary rule from the Constitution, yet drew the line
at creating a constitutional right to retroactivity. E.g.,
Linkletter v. Walker, 381 U.S. 618, 629 (1965) (“[T]he
Constitution neither prohibits nor requires retrospective
effect. As Justice Cardozo said, ‘We think the Federal
Constitution has no voice upon the subject’ ”).
Only in 1987, in Griffith v. Kentucky, 479 U.S. 314, did
this Court change course and hold that the Constitution
requires courts to give constitutional rights some retroac-
tive effect. Even then, Griffith was a directive only to
courts on direct review. It held that “a new rule for the
conduct of criminal prosecutions is to be applied retroac-
tively to all cases, state or federal, pending on direct re-
view or not yet final.” Id., at 328. It said nothing about
what happens once a case becomes final. That was re-
solved in Teague v. Lane, 489 U.S. 288 (1989)—which
announced the narrow exceptions to the rule against
retroactivity on collateral review—but which did so by
interpreting the scope of the federal habeas writ, not the
Constitution.
II
A
Not only does the Court’s novel constitutional right lack
any constitutional foundation; the reasoning the Court
uses to construct this right lacks any logical stopping
point. If, as the Court supposes, the Constitution bars
courts from insisting that prisoners remain in prison when
their convictions or sentences are later deemed unconsti-
tutional, why can courts let stand a judgment that wrongly
decided any constitutional question?
The Court confronted this question when Siebold and
Cite as: 577 U. S. ____ (2016) 9
THOMAS, J., dissenting
other cases began expanding the federal habeas statute to
encompass claims that a sentence or conviction was con-
stitutionally void. But the Court could not find a satisfac-
tory answer: “A judgment may be erroneous and not void,
and it may be erroneous because it is void. The distinc-
tions . . . are very nice, and they may fall under the one
class or the other as they are regarded for different pur-
poses.” Ex parte Lange, 18 Wall. 163, 175–176 (1874).
The lack of any limiting principle became apparent as
the Court construed the federal habeas statute to supply
jurisdiction to address prerequisites to a valid sentence or
conviction (like an indictment). See Bator, 76 Harv.
L. Rev., at 467–468, and n. 56, 471. As Justice Bradley,
Siebold’s author, later observed for the Court: “It is diffi-
cult to see why a conviction and punishment under an
unconstitutional law is more violative of a person’s consti-
tutional rights, than an unconstitutional conviction and
punishment under a valid law.” In re Nielsen, 131 U.S.
176, 183 (1889).
I doubt that today’s rule will fare any better. By refash-
ioning Siebold as the foundation of a purported constitu-
tional right, the Court transforms an unworkable doctrine
into an immutable command. Because Justice Bradley’s
dicta in Siebold was a gloss on the 1789 Judiciary Act,
Congress could at least supply a fix to it. But the Court’s
reinvention of Siebold as a constitutional imperative
eliminates any room for legislative adjustment.
B
There is one silver lining to today’s ruling: States still
have a way to mitigate its impact on their court systems.
As the Court explains, States must enforce a constitutional
right to remedies on collateral review only if such pro-
ceedings are “open to a claim controlled by federal law.”
Ante, at 13. State courts, on collateral review, thus must
provide remedies for claims under Miller v. Alabama, 567
10 MONTGOMERY v. LOUISIANA
THOMAS, J., dissenting
U. S. ___ (2012), only if those courts are open to “claims
that a decision of this Court has rendered certain sentenc-
es illegal . . . under the Eighth Amendment.” See ante,
at 13.
Unlike the rule the Court announces today, this limita-
tion at least reflects a constitutional principle. Only when
state courts have chosen to entertain a federal claim can
the Supremacy Clause conceivably command a state court
to apply federal law. As we explained last Term, private
parties have no “constitutional . . . right to enforce federal
laws against the States.” Armstrong, 575 U. S., at ___
(slip op., at 4). Instead, the Constitution leaves the initial
choice to entertain federal claims up to state courts, which
are “tribunals over which the government of the Union has
no adequate control, and which may be closed to any claim
asserted under a law of the United States.” Osborn v.
Bank of United States, 9 Wheat. 738, 821 (1824).
States therefore have a modest path to lessen the bur-
dens that today’s decision will inflict on their courts.
States can stop entertaining claims alleging that this
Court’s Eighth Amendment decisions invalidated a sen-
tence, and leave federal habeas courts to shoulder the
burden of adjudicating such claims in the first instance.
Whatever the desirability of that choice, it is one the
Constitution allows States to make.
* * *
Today’s decision repudiates established principles of
finality. It finds no support in the Constitution’s text, and
cannot be reconciled with our Nation’s tradition of consid-
ering the availability of postconviction remedies a matter
about which the Constitution has nothing to say. I re-
spectfully dissent.