2005 Articles

Rethinking Retroactivity

Jackson, Robert J.

Under the stringent test set forth in Teague v. Lane defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that new constitutional rule be "implicit in the concept of ordered liberty"3 for it to be applied to criminal cases decided before its pronouncement Once rule of criminal procedure is characterized as "new" Teague prohibits the rules invocation in habeas proceedings unless the rule both "assure that no man has been incarcerated under procedure which creates an impermissibly large risk that the innocent will be convicted"5 and "alter our understanding of the bedrock procedural elements that vitiate the fairness of particular conviction."