The balance between finality and fairness in retroactive application of changes in the law is a “thorny”1×1. Witt v. State, 387 So. 2d 922, 924 (Fla. 1980) (per curiam). issue that has particular significance in the area of capital punishment, where retroactivity is not a question “of guilt or innocence but, rather, of life or death.”2×2. Asay v. State, 210 So. 3d 1, 33 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part); see also Matthew R. Doherty, Note, The Reluctance Towards Retroactivity: The Retroactive Application of Laws in Death Penalty Collateral Review Cases, 39 Val. U. L. Rev. 445, 471–73 (2004). To address this issue, the U.S. Supreme Court has articulated, and many states have adopted, the Teague v. Lane3×3. 489 U.S. 288 (1989). retroactivity standard. But states may adopt retroactivity standards that are “more generous” than the federal test,4×4. Jason M. Zarrow & William H. Milliken, Retroactivity, the Due Process Clause, and the Federal Question in Montgomery v. Louisiana, 68 Stan. L. Rev. Online 42, 43 (2015); see also Danforth v. Minnesota, 552 U.S. 264 (2008). and Florida has retained its Witt v. State5×5. 387 So. 2d 922. test on this basis. Recently, in Asay v. State,6×6. 210 So. 3d 1. the Florida Supreme Court (Court) applied Witt and held that the U.S. Supreme Court’s ruling that Florida must commit capital-sentencing factfinding to a jury7×7. Hurst v. Florida, 136 S. Ct. 616, 619 (2016). does not apply retroactively to a certain class of cases.8×8. Asay, 210 So. 3d at 22. The class consists of those cases decided before Ring v. Arizona, 536 U.S. 584 (2002), which held that a jury must find all the facts required to impose the death penalty upon a defendant, id. at 609. However, the Witt test is “malleable,” “nebulous,”9×9. Johnson v. State, 904 So. 2d 400, 415 (Fla. 2005) (Cantero, J., concurring). and hindered by its indeterminacy, belying its characterization as supporting “expansive retroactivity.”10×10. Id. at 409 (majority opinion) (per curiam). Therefore, Florida should consider aligning with federal practice and adopting the more determinate Teague retroactivity standard.
On July 17, 1989, Mark Asay, acting with racial motivation, shot and killed two men.11×11. Asay v. State, 580 So. 2d 610, 610–12 (Fla. 1991) (per curiam). Testimony indicated that Asay had swastika and white supremacist tattoos and that he used racially derogatory language when referring to the murders. See id. at 612. A jury found Asay guilty of two counts of first-degree murder,12×12. Id. at 611–12. and the penalty-phase jury voted nine to three to recommend death.13×13. Asay, 210 So. 3d at 7. Until Hurst v. State, 202 So. 3d 40 (Fla. 2016), jury unanimity was not required to recommend capital punishment. The trial court adhered to the jury’s recommendations and sentenced Asay to death for each conviction.14×14. Asay, 580 So. 2d at 612. Thereafter, Asay’s case wound through the Florida and federal court systems for nearly thirty years.15×15. See Asay, 580 So. 2d 610; Asay v. Florida, 502 U.S. 895 (1991); Asay v. State, 769 So. 2d 974 (Fla. 2000) (per curiam); Asay v. Moore, 828 So. 2d 985 (Fla. 2002) (per curiam); Asay v. State, 892 So. 2d 1011 (Fla. 2004) (unpublished table decision); McNeil v. Asay, 558 U.S. 1007 (2009); Asay v. Sec’y, Fla. Dep’t of Corr., No. 3:05-cv-147-J-32, 2014 WL 1463990 (M.D. Fla. Apr. 14, 2014); see also Asay, 210 So. 3d at 7–10.
The current case arises from Asay’s second successive postconviction motion, filed on January 27, 2016.16×16. Asay, 210 So. 3d at 10. The Florida circuit court summarily denied Asay’s claims and his motion for a stay of execution, and Asay appealed to the Court, stating four claims17×17. Id. The four claims were: (1) Asay’s death sentence is unconstitutional under [Hurst] because a judge, rather than a jury, made certain findings to make Asay eligible for a sentence of death; (2) the circuit court erred in denying an evidentiary hearing as to Asay’s newly discovered evidence, Brady, and Strickland claims; (3) Asay was denied due process when the circuit court considered extra record material and conducted an ex parte hearing with the State; and (4) Asay was denied due process, equal protection, and his right to effective collateral representation under Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988), when his death warrant was signed while no registry counsel was in place and had not been in place for over a decade. Id. and filing a petition for a writ of habeas corpus.18×18. Id. Asay’s petition first raised the same issue as his third claim. Id. The petition also contended that Asay was entitled to relief under Florida law, which mandates that “at least ten jurors agree with the recommendation of death before a sentence of death can be imposed.” Id. at 10–11 (citing Act of Mar. 7, 2016, ch. 2016-13, 2016 Fla. Laws 231, invalidated by Perry v. State, 210 So. 3d 630 (Fla. 2016) (per curiam)).
The Court affirmed and denied Asay’s habeas petition.19×19. Id. at 29. In a per curiam opinion, the Court held that Hurst v. Florida20×20. 136 S. Ct. 616 (2016). has no retroactive application to cases that were final when the U.S. Supreme Court decided Ring v. Arizona21×21. 536 U.S. 584 (2002). in 2002.22×22. Asay, 210 So. 3d at 11. The Court also denied Asay relief on his Brady/Strickland, id. at 22–25, extra record material and ex parte hearing, id. at 25–27, and Spalding claims, id. at 27–29. In Mosley v. State, 209 So. 3d 1248 (Fla. 2016) (per curiam), the Court held that Hurst applies retroactively to defendants whose sentences became final after Ring, id. at 1276, a question left open in Asay. In reaching this conclusion, the Court first addressed its decision in Johnson v. State,23×23. 904 So. 2d 400 (Fla. 2005) (per curiam). which held that Ring, the case from which Hurst derived, does not apply retroactively.24×24. Asay, 210 So. 3d at 15. Finding the Johnson Court to have improperly relied on reasoning derivative of the Teague test, which departs entirely from the criteria in Florida’s Witt test, the Court determined that Johnson’s retroactivity analysis is no longer binding and that it must analyze the retroactivity of Hurst without recourse to that precedent.25×25. Id. at 15–16. Under Witt, which established an intricate analytical framework that attempts to balance the needs for finality and individualized justice,26×26. Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (per curiam). the Court does not retroactively apply a change in the law “unless the change: (a) emanates from [the] Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.”27×27. Id. at 931 (emphasis omitted). The third prong can be satisfied in one of two ways28×28. Id. at 929. : a change can either remove the state’s regulatory power over certain conduct or ability to inflict certain penalties, or, alternatively, meet a magnitude threshold under the test established by the U.S. Supreme Court in Stovall v. Denno29×29. 388 U.S. 293 (1967). and Linkletter v. Walker.30×30. 381 U.S. 618 (1965). The Stovall/Linkletter test, in turn, incorporates three factors: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.”31×31. Witt, 387 So. 2d at 926 (citing Stovall, 388 U.S. at 297; Linkletter, 381 U.S. 618).
The Court quickly determined that Hurst satisfies the first two requirements under Witt.32×32. Asay, 210 So. 3d at 17. Turning then to the Stovall/Linkletter test to evaluate Witt’s third prong, the Court first addressed the purpose to be served by the new rule, finding that protecting the right to a jury weighed in favor of retroactivity.33×33. Id. at 17–18. The Court next analyzed the second and “most important factor”: reliance on the old rule.34×34. Id. at 18. Reviewing the evolution of Florida’s capital punishment procedures, the Court found that it had — until Ring — significantly relied on the U.S. Supreme Court’s decisions indicating the constitutionality of Florida’s death penalty system.35×35. Id. at 19–20. Therefore, the second factor weighed “heavily” against reconsidering pre-Ring cases in light of Hurst.36×36. Id. at 20.
The third and final factor that the Court analyzed was “the effect of applying the new rule on the administration of justice.”37×37. Id. Framing its discussion as whether retroactive application would “burden [Florida’s] judicial machinery . . . beyond any tolerable limit,” the Court focused on judicial economy and accuracy.38×38. Id. (quoting Ferguson v. State, 789 So. 2d 306, 312 (Fla. 2001)). It explained that roughly forty-five percent of defendants currently on death row have sentences that were final pre-Ring and noted the substantial time gap between the occurrence of the crimes and a potential resentencing.39×39. Id. at 20–21. Because reopening these defendants’ cases would immensely burden the courts — requiring gathering evidence and witnesses decades after conviction, without improving “the accuracy or reliability of penalty phase proceedings”40×40. Id. at 21 (quoting Johnson v. State, 904 So. 2d 400, 412 (Fla. 2005) (per curiam)). — the Court determined that this factor also “heavily” weighed against pre-Ring retroactivity.41×41. Id. at 22. Consequently, the Court concluded that Hurst did not apply retroactively to death sentences that became final before the issuance of Ring and therefore denied Asay relief.42×42. See id.
Asay generated five nonmajority opinions, two of which addressed the advisability of retaining the Witt test.43×43. The three remaining opinions addressed different concerns. Chief Justice Labarga concurred to specify that Asay does not apply to “defendants whose death sentences were imposed based upon . . . a judicial override.” Id. at 29 (Labarga, C.J., concurring). Justice Pariente concurred in part and dissented in part, concluding that fairness outweighed finality here under a Witt analysis, thereby leading to full Hurst retroactivity. Id. at 33 (Pariente, J., concurring in part and dissenting in part). Justice Perry dissented, contending first that “retroactivity is a binary,” id. at 37 (Perry, J., dissenting), and second that fairness justifies the burden resentencing pre-Ring capital defendants would place on the judiciary, id. at 37–41. Justice Polston concurred, writing separately to advocate for abandoning the Witt test in favor of the federal Teague analysis.44×44. Id. at 29–30 (Polston, J., concurring). Justice Polston cited to Justice Cantero’s concurring opinion in Johnson, 904 So. 2d at 413 (Cantero, J., concurring), but did not offer further arguments for his view. Justice Lewis concurred in the result but disagreed with the Court’s broader reasoning.45×45. Asay, 210 So. 3d at 30 (Lewis, J., concurring). In his view, the correct retroactivity test would focus on claim preservation.46×46. Id. at 30–31. Therefore, the Court should hear the constitutional claims of defendants who had “preserved challenges to the lack of jury factfinding and unanimity in Florida’s capital sentencing procedure at the trial level and on direct appeal” before Ring.47×47. Id. at 30.
As Asay exemplifies, the Witt test is eminently complicated, “malleable,” and “nebulous,”48×48. Johnson, 904 So. 2d at 415 (Cantero, J., concurring). requiring analysis of a multifactor and multilayer standard that strains the limits of judicial capacity and fosters numerous opportunities for operational disagreements.49×49. See Asay, 210 So. 3d 1 (including a majority opinion and two separate opinions by two individual justices disagreeing on the correct application of Witt). Therefore, the Florida Supreme Court should consider abandoning the Witt test to align with current federal practice and adopt the Teague standard, which presumes that retroactivity does not apply unless a new rule of constitutional law removes the government’s power to prohibit certain conduct or announces a “watershed”50×50. Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion). rule of criminal procedure.51×51. See id. at 307. The Court has claimed and reaffirmed, without detailed analysis and without offering any other justification for its continued use of Witt, that Witt “provides more expansive retroactivity standards than those adopted in Teague.”52×52. Johnson, 904 So. 2d at 409; see also Asay, 210 So. 3d at 15. However, in practice, Witt has not fulfilled this assertion of expansiveness and has been hindered by its indeterminacy. Conversely, adopting the Teague standard would promote determinacy by allowing Florida to benefit from federal and state explications of the standard and allow for easier implementation due to its rigidity and more demanding requirements. Finally, while commentators have criticized the retroactivity rules set forth in Teague and proposed a number of alternatives,53×53. See, e.g., Christopher N. Lasch, The Future of Teague Retroactivity, or “Redressability,” After Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev. 1, 43 (2009); Eric Schab, Commentary, Departing from Teague: Miller v. Alabama’s Invitation to the States to Experiment with New Retroactivity Standards, 12 Ohio St. J. Crim. L. 213, 227 (2014). the lack of consensus counsels in favor of Florida adopting the determinate Teague standard now and developing it incrementally to fit the needs of the state.
While the Court has claimed that Witt enables more expansive retroactivity than does Teague, Witt fails to achieve that objective — belying the one rationale the Court has offered for keeping it. Compared with Teague, whose watershed exception applies only to fundamental liberties,54×54. See Palko v. Connecticut, 302 U.S. 319, 324–25 (1937) (describing the freedoms that “the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge,” id. at 324, as those “implicit in the concept of ordered liberty,” id. at 325). Witt incorporates the less restrictive factors of purpose, reliance, and effect on the administration of justice.55×55. Johnson, 904 So. 2d at 409 (citing Witt v. State, 387 So. 2d 922, 926 (Fla. 1980) (per curiam)). But Witt does not necessarily enable greater retroactivity in practice,56×56. Compare Falcon v. State, 162 So. 3d 954, 956 (Fla. 2015) (determining that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively under Witt), with Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016) (determining that Miller applies retroactively under Teague); Hernandez v. State, 124 So. 3d 757, 759 (Fla. 2012) (per curiam) (concluding that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively under Witt), with Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013) (concluding that Padilla does not apply retroactively under Teague); Chandler v. Crosby, 916 So. 2d 728, 731 (Fla. 2005) (per curiam) (holding that Crawford v. Washington, 541 U.S. 36 (2004), does not apply retroactively under Witt), with Whorton v. Bockting, 549 U.S. 406, 409 (2007) (holding that Crawford does not apply retroactively under Teague). and indeed, at times does so less than Teague — a point exemplified by Asay. The Asay Court concluded that under Witt, Hurst does “not apply retroactively to cases that were final when Ring was decided.”57×57. Asay, 210 So. 3d at 11. Conversely, the Delaware Supreme Court, applying Teague and relying on its watershed rule of criminal procedure exception to nonretroactivity,58×58. Powell v. State, 153 A.3d 69, 74–75 (Del. 2016) (per curiam). found that its decision interpreting Hurst to invalidate the Delaware death penalty statute “must be applied retroactively.”59×59. Id. at 76. Therefore, Teague is not inevitably narrower than Witt, despite the statements of the Court claiming otherwise.60×60. While Florida has continued to reaffirm its interpretation of the Witt test as “expansive,” Johnson, 904 So. 2d at 409; Asay, 210 So. 3d at 15, and has refused to abandon it, the state has never explicitly stated a goal of “more retroactivity” that adopting Teague would frustrate.
Moreover, the “redundant, incomplete, and unclear” nature of multiprong tests61×61. Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir. 1986) (Posner, J.). like Witt renders Witt indeterminate. The test is based on the Stovall/Linkletter standard that courts and scholars have criticized62×62. Francis X. Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va. L. Rev. 1557, 1558 (1975). as “unfair and inconsistent,”63×63. Schab, supra note 53, at 231. focusing on the multifactor test’s unpredictability64×64. See Desist v. United States, 394 U.S. 244, 256–58 (1969) (Harlan, J., dissenting) (noting the “doctrinal confusion” that resulted from Linkletter, id. at 258); Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421, 452 (1993). and lack of guidance concerning how to resolve tensions among its criteria.65×65. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1742 (1991). A plurality of the U.S. Supreme Court implicitly adopted these criticisms in renouncing Stovall/Linkletter in favor of Teague.66×66. Teague v. Lane, 489 U.S. 288, 302–03 (1989) (plurality opinion). Though Witt is not an exact copy of Stovall/Linkletter, it only exacerbates the problem by incorporating another level of multifactor analysis.
Compared to the three-stage multifactor balancing test mandated by Witt, Teague’s rigid requirements are much more determinate. Teague states “that new rules of constitutional law should . . . not apply retroactively to post-conviction cases unless (1) they place conduct beyond the power of the government to proscribe, or (2) they announce a ‘watershed’ rule of criminal procedure that is ‘implicit in the concept of ordered liberty.’”67×67. Johnson v. State, 904 So. 2d 400, 408 (Fla. 2005) (per curiam) (quoting Teague, 489 U.S. at 311 (plurality opinion)). While applying these exceptions to specific fact patterns still requires careful examination, Teague and its progeny establish guidelines for what types of constitutional rulings fall into each category.68×68. See, e.g., Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016) (holding that the U.S. Supreme Court’s invalidation of mandatory life sentences without parole for juvenile offenders was a substantive rule of constitutional law that applied retroactively); Teague, 489 U.S. at 313 (plurality opinion) (holding that watershed rules of criminal procedure are “those new procedures without which the likelihood of an accurate conviction is seriously diminished”). Clear precedent establishing the boundaries of the Teague standard will aid the administration of justice in Florida, thereby significantly diminishing the intracourt disagreements engendered by the Witt test.
Adopting Teague would further alleviate Witt’s indeterminacy concerns. Even though states are not constitutionally bound to implement Teague when reviewing their own criminal convictions,69×69. Danforth v. Minnesota, 552 U.S. 264, 282 (2008) (holding that states, in this context, have the authority to fashion their own remedies for constitutional violations that would be “deemed ‘nonretroactive’ under Teague”). twenty-eight “state supreme courts, as well as the District of Columbia, have adopted the Teague standard at least to cases stemming from a federal constitutional right,” with the “vast majority” of those jurisdictions having adopted Teague for “all questions of retroactivity.”70×70. Windom v. State, 886 So. 2d 915, 943 & n.28 (Fla. 2004) (Cantero, J., specially concurring). Thus, by adopting Teague, the standard that the majority of states and the U.S. Supreme Court itself apply, Florida would benefit from the courts’ explanations of the standard. Defendants would be better able to craft their challenges and predict the Court’s legal reasoning if they could analyze federal and state precedents implementing the same standard as Florida.71×71. Cf., e.g., Richardson v. N.C. Dep’t of Corr., 478 S.E.2d 501, 505 (N.C. 1996) (applying federal equal protection law to interpret the state constitution’s equal protection clause). While the greater body of precedent implementing the Teague standard may beneficially illuminate its contours as compared to Witt, courts have sometimes disagreed about the correct application of Teague. Compare, e.g., State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013) (holding that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively under Teague), with Chambers v. State, 831 N.W.2d 311, 331 (Minn. 2013) (holding that Miller does not apply retroactively under Teague), overruled by Jackson v. State, 883 N.W.2d 272, 279 (Minn. 2016).
However, Teague itself has “prompted scathing criticism” from scholars72×72. Lasch, supra note 53, at 27. who have charged that differentiating between substantive and procedural changes in law is impossible73×73. Doherty, supra note 2, at 481; see also Schab, supra note 53, at 230; The Supreme Court, 2015 Term — Leading Cases, 130 Harv. L. Rev. 307, 382–85 (2016). and that Teague’s exceptions are too narrow.74×74. Fallon & Meltzer, supra note 65, at 1817; see also Lasch, supra note 53, at 28. Nevertheless, these criticisms should not deter Florida from updating its retroactivity analysis. For all its shortcomings, Teague replaced a standard that the U.S. Supreme Court abandoned long ago as inconsistent and unfair.75×75. See Teague v. Lane, 489 U.S. 288, 302–03 (1989) (plurality opinion). While federal law has continued to evolve and refine its retroactivity standard, responding to criticism76×76. See Beytagh, supra note 62, at 1558. and to changing social mores,77×77. See, e.g., Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (determining the retroactivity of Miller v. Alabama, 567 U.S. 460 (2012), which held that a mandatory sentence of life without parole for a juvenile offender was a cruel and unusual punishment under the Eighth Amendment). Florida’s retroactivity analysis has not changed, becoming ever more disconnected from federal standards.78×78. See Windom v. State, 886 So. 2d 915, 944 (Fla. 2004) (Cantero, J., specially concurring) (noting that, at the time, Florida had not “addressed Teague in the fourteen years since it was decided”). Furthermore, scholars have not reached a consensus regarding the best alternative to Teague,79×79. Cf., e.g., Lasch, supra note 53, at 43 (advocating for full retroactivity of all new constitutional rules); Schab, supra note 53, at 231 (describing a “line of cases” model of retroactivity); Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203 (1998); Note, Rethinking Retroactivity, 118 Harv. L. Rev. 1642, 1644 (2005) (arguing that, under Teague, courts should place more emphasis on whether a rule increases the probability of a correct conviction). and the U.S. Supreme Court has shown no signs of abandoning the doctrine.80×80. See Montgomery, 136 S. Ct. 718 (applying Teague to determine retroactivity). Therefore, rather than wait for a new theory of retroactivity to develop, Florida should adopt the Teague standard now and incrementally develop it to fit the needs of the state.81×81. Incremental change accords with the Blackstonian view that would “tend to restrain a court from adopting new law that is neither reflective of current community standards nor adequately foreshadowed by prior judicial developments.” Paul J. Mishkin, The Supreme Court, 1964 Term — Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 70 (1965).
Fundamental notions of justice require courts to balance “finality of decisions” against “fairness and uniformity in individual cases.”82×82. Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (per curiam). As Asay demonstrates, the indeterminacy of Florida’s Witt test obstructs this goal. The test requires courts to undertake a complicated multifactor analysis infused with malleability and foments implementation disagreements. Conversely, adopting the prevailing federal Teague standard would remedy these difficulties, providing for greater determinacy without necessarily diminishing the retroactive effect given to new constitutional rules. In recognition of the deficiencies of Witt, Florida should revise its retroactivity standards and adopt Teague.