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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Winburn v. Nagy

Dockets: 19-2399, 19-2398

Opinion Date: April 23, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Winburn represented himself at his trial for armed robbery, home invasion, and conspiracy. Based on Winburn’s disruptive behavior, the judge removed him from the courtroom and revoked Winburn’s permission to represent himself, then granted a competency evaluation and a mistrial. While Winburn awaited his second trial, the judge permitted Winburn’s stand-by attorney to withdraw because Winburn had sued her and enjoined Winburn from filing complaints or grievances against his new attorney, except to discharge her. Although represented by a new attorney, Winburn moved pro se to dismiss his charges on double jeopardy grounds. The trial judge denied the motion because Winburn’s attorney had not filed it. Winburn filed a habeas petition under 28 U.S.C. 2241 challenging his retrial and another section 2241 petition challenging the injunction. The district judges denied both and declined to issue certificates of appealability. Winburn filed a notice of appeal for one petition and sought a certificate of appealability for the other. The Sixth Circuit held that state pretrial detainees proceeding under section 2241 may not appeal without certificates of appealability and granted Winburn a certificate on the injunction claim. A reasonable jurist could conclude that the unusual order was constitutionally infirm. The court denied relief with respect to double jeopardy. Winburn failed to exhaust his state-court remedies by a motion to dismiss.

Gary B. v. Whitmer

Dockets: 18-1855, 18-1871

Opinion Date: April 23, 2020

Judge: Eric L. Clay

Areas of Law: Civil Rights, Constitutional Law, Education Law

Students at several of Detroit’s worst-performing public schools were subject to poor conditions within their classrooms, missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. In 2016, the plaintiffs filed suit under 42 U.S.C. 1983, claiming that these conditions deprive them of a basic minimum education that provides a chance at foundational literacy, in violation of the due process and equal protection clauses. They sought recognition of a fundamental right to a basic education. They argued that the schools they are forced to attend are schools in name only, so the state cannot justify the restriction on their liberty imposed by compulsory attendance. They sued state officials, rather than local entities, based on the state’s general supervision of all public education and the state’s specific interventions in Detroit’s public schools. The state argued that it recently returned control to local officials. The district court found that the state defendants were the proper parties to sue but dismissed the complaint on the merits. The Sixth Circuit reversed in part. Though the plaintiffs failed to adequately plead their equal protection and compulsory attendance claims, the court reinstated claims that they have been denied a basic minimum education, and have been deprived of access to literacy. Application of the principles in the Supreme Court’s education cases to a substantive due process framework demonstrates that a basic minimum education should be recognized as a fundamental right.