Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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Queen v. City of Bowling Green

Docket: 18-5840

Opinion Date: April 22, 2020

Judge: Bush

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Queen, a Bowling Green firefighter, 2011-2016, was subject to harassment because he is an atheist. According to Queen, he was forced to participate in Bible studies; his co-workers and supervisors badgered him regarding his sexuality and regularly disparaged minorities. In 2012, Queen complained to his supervisor, Rockrohr, who “responded in hostility.” Rockrohr later told Queen that he had discussed the matter with the fire chief and they both believed that Queen “needed to get employment somewhere else.” Queen apologized. Queen’s employment conditions did not improve. Queen was intentionally tripped while retrieving his gear and was regularly subject to disparaging remarks. Stress and anxiety caused Queen to take a leave of absence. While on leave, Queen received many phone calls from his supervisors asking why he was absent. Queen resigned and filed suit under the Kentucky Civil Rights Act, alleging hostile work environment based on religion and gender, constructive discharge, retaliation, and violations of the Family and Medical Leave Act. The district court granted the defendants summary judgment on hostile work environment based on religion and gender and the FMLA claims. On interlocutory appeal, the Sixth Circuit affirmed the denial of qualified immunity to the city on the claims for hostile work environment based on religion and for retaliation and denial of qualified immunity to Rockrohr for the retaliation claim.

United States v. Dowl

Docket: 19-2469

Opinion Date: April 22, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

Dowl pleaded guilty to presenting false tax returns, 18 U.S.C. 286. He received a sentence of 30 months of imprisonment plus 24 months of supervised release. On supervised release, Dowl was charged with four new state crimes; failing to inform his probation officer that he had police contact; communicating with his co-defendant despite instructions to the contrary; failing to make payments on his restitution, fine, or special assessment; and failing to get a job. At a hearing, the court reviewed the evidence and allowed Dowl to tell his side of the story. The court deferred judgment on three of the four new state criminal law violations and dismissed the fourth and found Dowl gainfully employed. Dowl had failed to notify his probation officer about police contact, impermissibly communicated with his co-defendant, and did not pay his fines. After considering the 18 U.S.C. 3553(a) sentencing factors, the court returned Dowl to prison for 11 months, giving Dowl and his attorney the opportunity to raise any objections. Dowl had none. The Sixth Circuit affirmed, rejecting Dowl’s argument that the court committed reversible error by not directly addressing him to solicit an allocution. The court employed the “plain error” standard because Dowl did not raise any objection during his revocation hearing.