The balance between finality and fairness in retroactive application of changes in the law is a “thorny”1 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 To address this issue, the U.S. Supreme Court has articulated, and many states have adopted, the Teague v. Lane3 retroactivity standard. But states may adopt retroactivity standards that are “more generous” than the federal test,4 and Florida has retained its Witt v. State5 test on this basis. Recently, in Asay v. State,6 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 does not apply retroactively to a certain class of cases.8 However, the Witt test is “malleable,” “nebulous,”9 and hindered by its indeterminacy, belying its characterization as supporting “expansive retroactivity.”10 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 A jury found Asay guilty of two counts of first-degree murder,12 and the penalty-phase jury voted nine to three to recommend death.13 The trial court adhered to the jury’s recommendations and sentenced Asay to death for each conviction.14 Thereafter, Asay’s case wound through the Florida and federal court systems for nearly thirty years.15
The current case arises from Asay’s second successive postconviction motion, filed on January 27, 2016.16 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 and filing a petition for a writ of habeas corpus.18
The Court affirmed and denied Asay’s habeas petition.19 In a per curiam opinion, the Court held that Hurst v. Florida20 has no retroactive application to cases that were final when the U.S. Supreme Court decided Ring v. Arizona21 in 2002.22 In reaching this conclusion, the Court first addressed its decision in Johnson v. State,23 which held that Ring, the case from which Hurst derived, does not apply retroactively.24 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 Under Witt, which established an intricate analytical framework that attempts to balance the needs for finality and individualized justice,26 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 The third prong can be satisfied in one of two ways28: 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 and Linkletter v. Walker.30 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
The Court quickly determined that Hurst satisfies the first two requirements under Witt.32 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 The Court next analyzed the second and “most important factor”: reliance on the old rule.34 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 Therefore, the second factor weighed “heavily” against reconsidering pre-Ring cases in light of Hurst.36
The third and final factor that the Court analyzed was “the effect of applying the new rule on the administration of justice.”37 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 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 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 — the Court determined that this factor also “heavily” weighed against pre-Ring retroactivity.41 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
Asay generated five nonmajority opinions, two of which addressed the advisability of retaining the Witt test.43 Justice Polston concurred, writing separately to advocate for abandoning the Witt test in favor of the federal Teague analysis.44 Justice Lewis concurred in the result but disagreed with the Court’s broader reasoning.45 In his view, the correct retroactivity test would focus on claim preservation.46 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
As Asay exemplifies, the Witt test is eminently complicated, “malleable,” and “nebulous,”48 requiring analysis of a multifactor and multilayer standard that strains the limits of judicial capacity and fosters numerous opportunities for operational disagreements.49 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 rule of criminal procedure.51 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 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 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 Witt incorporates the less restrictive factors of purpose, reliance, and effect on the administration of justice.55 But Witt does not necessarily enable greater retroactivity in practice,56 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 Conversely, the Delaware Supreme Court, applying Teague and relying on its watershed rule of criminal procedure exception to nonretroactivity,58 found that its decision interpreting Hurst to invalidate the Delaware death penalty statute “must be applied retroactively.”59 Therefore, Teague is not inevitably narrower than Witt, despite the statements of the Court claiming otherwise.60
Moreover, the “redundant, incomplete, and unclear” nature of multiprong tests61 like Witt renders Witt indeterminate. The test is based on the Stovall/Linkletter standard that courts and scholars have criticized62 as “unfair and inconsistent,”63 focusing on the multifactor test’s unpredictability64 and lack of guidance concerning how to resolve tensions among its criteria.65 A plurality of the U.S. Supreme Court implicitly adopted these criticisms in renouncing Stovall/Linkletter in favor of Teague.66 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 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 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 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 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
However, Teague itself has “prompted scathing criticism” from scholars72 who have charged that differentiating between substantive and procedural changes in law is impossible73 and that Teague’s exceptions are too narrow.74 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 While federal law has continued to evolve and refine its retroactivity standard, responding to criticism76 and to changing social mores,77 Florida’s retroactivity analysis has not changed, becoming ever more disconnected from federal standards.78 Furthermore, scholars have not reached a consensus regarding the best alternative to Teague,79 and the U.S. Supreme Court has shown no signs of abandoning the doctrine.80 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
Fundamental notions of justice require courts to balance “finality of decisions” against “fairness and uniformity in individual cases.”82 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.