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RETROACTIVE APPLICATION OF THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 TO PENDING CASES: REWRITING A POORLY WRITTEN CONGRESSIONAL STATUTE
Cite as 75 Wash. U. L.Q. 1707
On April 24, 1996, President Clinton signed into law the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("the Act"). This Act significantly alters the statutory structure
governing the availability of habeas corpus relief. Signed into law on the first anniversary of the Oklahoma
City Bombing, the Act is intended to "deter
terrorism, provide justice for victims, [and] provide for an effective death
penalty," among other purposes.
Section 107 of the Act establishes specific habeas corpus procedures for use in
capital cases.§ To apply, the cases must
originate in states that comply with the Act's prescribed rules for appointment
and funding of counsel.
Sections 101, 102, 104 and 106 of Title I amend existing statutory provisions that dictate the federal courts' consideration
of state prisoners' habeas petitions. Section
101 creates a one-year statute of limitations to apply for a writ for habeas
corpus. Section 106 requires a certificate of
appealability issued by a three-judge panel before a prisoner may file a second
or successive motion for a writ of habeas corpus. Section 102 requires a certificate of appealability,
issued by a three-judge appellate panel, before a prisoner may appeal the state
court's final order in a habeas corpus proceeding. The amendment to Section 2254 limits the situations in
which a court may grant a writ of habeas corpus; however, direct petition to the Supreme Court is still
One controversy concerning this Act involves whether to apply the new
provisions to cases pending at the time of the Act's enactment. In drafting the
Act, Congress only set an "Effective Date" for Chapter 154. The remainder of the Act does not address its
applicability to pending cases.
The federal circuits were split as to whether the provisions of the Act applied
to cases pending at the time of its enactment. Those courts holding that the Act did apply reasoned that the structure of the Act
required a consolidated approach to the habeas corpus sections in order to
achieve their congressional purpose. In
addition, they reasoned that a court should apply the law in effect at the time
it renders its decision. Finally, because
there has never been a guarantee of a fixed statutory framework, applying the
Act to pending cases would not have an unfair retroactive effect.
Courts holding that the Act did not apply to pending cases advanced two lines
of reasoning. One group reasoned that if the Act were applied to pending cases,
there would be a retroactive effect that would change the standard of review
and affect the quantum of protection that courts afford the defendant. A second group reasoned that Congress
expressly and clearly stated that the sections of the Act were not to apply
retroactively. Until very recently, the
Supreme Court had not addressed this issue; however, in June, 1997, the Court
resolved this split.
This Note seeks to explain the circuit split, trace its development, and
evaluate both the Supreme Court's resolution of this conflict among the
circuits and the congressional legislation that caused the confusion. Part II.A
of this Note examines some of the theoretical bases for the aversion to
retroactive application of legislation. Part II.B of this Note examines the
Court's reaction to, and adoption of, some of the theoretical aversions
discussed previously in Part II.A. Part II.C retraces the Supreme Court's
development of the two conflicting canons of construction concerning
application of retroactive legislation. Part III of this Note explains in
detail the Supreme Court's attempt to resolve the confusion concerning the two
canons of construction by developing one test to determine whether to apply
legislation to cases pending at the time of its enactment. Part IV examines the
circuit split, looking specifically at three groups of cases that used the same
Supreme Court test yet still adopted three contrary holdings. Part V of this
Note evaluates the Supreme Court's interpretation of the Act, and proposes new
legislation to relieve the confusion created by the poorly written
A. Theoretical Bases for the Aversion to Retroactive Legislation
A rule-based legal system provides "grounds upon which persons can rely on one
another and rightly object when their expectations are not fulfilled." Relying on one another to obey rules is
difficult when those rules are either unclear or are modified in their
application to actions committed in the past when the law was different. This
illustrates the initial indignity that gave rise to the bias against
retroactive application of laws.
Commentators suggest that the American bias against ex post facto laws stems from the abuse of such laws in England
before and during the American colonization, as well as from abuse in America in the early stages of
American colonization. This explains the
express prohibition of ex post facto laws that the Framers included in the
Constitution. Ex post facto laws,
characterized by retroactive application, were regarded as subversive to
justice and open to easy abuse. It was
understood that the retroactive application was not implemented for a general
purpose, but to affect one person or one situation in particular. When law is
expected to apply to everyone equally, individualization is distasteful. In
addition, "[i]ndividuals enjoy more freedom of action when legal obligations
On the other hand, the ability of the government to apply a law retroactively
is not without support. In Cromwell v. McLean, the court stated that retroactively applied law is not
necessarily objectionable in itself. If
the legislature has the power to act prospectively, it may also do so
retroactively. Essentially, this doctrine represents the belief that
retroactive application of a law does not render the law automatically void.
Retroactive application allows the courts and the legislatures to personalize
law that should not be personalized. This seems to be one aspect that makes
retroactive application distasteful.
However, the legislature may make prospective laws with specific groups of
people in mind, having the same personalized effect. In addition, one could
argue that the new law should apply because in time, the legislature will
become more enlightened and more informed about the law.
Lack of notice is an important factor in the aversion to retroactively applied
laws. However, some commentators suggest
that the importance of notice is overstated, arguing that many people never truly know the exact law,
never consult law books, and never seek advice from an attorney. Even
prospectively applied laws, however, may apply to those who have no practical
In sum, retroactively applied laws, however disliked, may not be an inherent
violation of people's rights. Yet, the
determination is neither easily nor automatically made.
B. The Supreme Court's Adoption of the Theoretical Aversions to Retroactive
Early in the development of the aversion to retroactive application of
legislation, the United States Supreme Court held that because this retroactive
application was contrary to basic rules of jurisprudence, "in the absence of an
express command or `necessary implication' to the contrary, [the court] will
presume that a law is designed to act prospectively." Thus, new legislation is applied from the date of its
enactment, if no other date is accorded the legislation. Subsequent decisions relied upon the premise that it
would be unjust to apply a law that was neither known of nor written at the
time of the action. However, a law
generally only applied retroactively if it deprived one of a vested right. The Supreme Court frequently wrote in dictum
that not all retroactive laws were necessarily unjust. On the other hand, laws that affected criminal rights
were more frequently deemed unjust.
Though the Supreme Court has not been able to establish a clear test to
determine whether retroactively applied legislation is valid, it has evaluated this question using three
factors. One such factor is the extent to
which the public interest is served by the enactment of the legislation. Another factor is the extent to which the
asserted pre-enactment right is abrogated.
Finally, to determine validity, the nature of the right affected by a
retroactive statute is also taken into consideration. Courts are less likely to alter rights against the
government, such as criminal rights, retroactively. All of these factors play a part in courts' adjudication
of the validity of retroactively applied statutes.
While courts may disagree as to the factors courts will consider in determining
retroactive applicability, most do agree that it is more difficult to
rationalize retroactive changes in criminal legislation. Even the modern approach to the retroactive applicability
of legislation tends to recognize that criminal legislation is unworthy of
retroactive application, depending on
whether the changes are substantive or procedural. However, courts are willing to take a more lenient
approach to retroactive legislation in the areas of taxation, property, and
The core of the Ex Post Facto Clause protects against criminalizing an action
that was not considered a crime when committed, or increasing the severity of
the crime's classification. When
confronted with legislation that increases an offender's sentence, the Supreme
Court has consistently refused to apply the new legislation to cases pending at
the time of the legislation's enactment.
In addition, the Court has refused to apply new legislation that imposes
greater legal obstacles to an early release. One theory attempting to explain this refusal suggests
that defendants rely on the current laws when choosing to act in violation of
that law. However, this theory has its
strongest support when referring to criminalizing an act that previously was
not considered a crime. A stronger theory
about the difference in treatment focuses on the liberty interest in the
criminal context versus the civil context.
Finally, it has been theorized that the true reason for the Supreme Court's
more diligent protection of criminal rights lies in the realization that the
political process is less likely to listen to the criminal `lobbyists' and more
likely to concern itself with the interest groups that have more clout. Whatever the reason, it is evident that the
Court scrutinizes retroactive application more carefully when dealing with
Courts have adopted most of the general interpretations of retroactive
legislation. In doing so, they have relied upon the reasons against
retroactivity to explain those factors considered in their evaluation. Courts continue to use the above factors and
to apply the canons of statutory construction developed by the Supreme Court
when making decisions about retroactive legislation. Arguably two contradictory canons emerged out of the case
law addressing retroactive legislation.
C. Case Law Development of the Two Conflicting Canons of Construction
"Where it is claimed that a law is to have a retrospective[] operation, such must be clearly the intention, evidenced
in the law and its purposes, or the court will presume that the lawmaking power
is acting for the future only and not for the past. . . ." The court articulated this first canon, applying it to
retroactive legislation determination, in White v. United States. The Court created a presumption against
retroactive application of new legislation that may be overturned only by a
demonstration of express congressional intent. This canon developed out of the general dislike for
retroactively applied legislation.
However, Thorpe v. Housing Authority of Durham challenged this first
canon. The new canon requires a court to
apply the law in effect at the time it renders its decision. This canon is not easily reconciled with the previous
Supreme Court canon presuming only prospective application of laws. In Thorpe, the Court stated that the
new HUD regulation, when applied retroactively to Thorpe's case, would give
additional constitutional protections to the evicted tenant. Further, requiring
a simple explanation of reasons before eviction would place no hardship on the
local housing authority. The Court cited
other cases in support of its holding,
including United States v. Schooner Peggy. In Thorpe, the Court expanded its holding in
Schooner Peggy, holding that appellate courts should apply the
law in effect at the time they render their decision. The Court's decision in Bradley v. Richmond School
Board further supported this new canon.
In Schooner Peggy, the United
States captured a French ship, the Peggy, during hostilities with France. The issue before the Court was whether a new
treaty should apply even though the capture occurred and the adjudication began
before the new law was in effect. The
Court decided that the Peggy should be returned to France, holding that when a
law changes before an appellate court disposes of an appeal, the appellate
court should apply the new law retroactively to the case. The Court recognized the special constitutional status of
treaties, and that this status allowed treaties to supersede the vested rights
of citizens. The actual holding of
Schooner Peggy appears ambiguous and has been explained in various ways
In Bradley v. Richmond School Board, the Supreme Court added a new element to the newest canon
of construction concerning retroactively applied legislation: the law in effect
at the time the court renders its decision is used only as long as doing so
will not result in manifest injustice.
However, an express statutory direction from Congress will also determine the
applicable law. The Court rationalized
that in Thorpe, it applied the law in effect at the time of the suit to
prevent a manifest injustice. In addition,
the Bradley Court enumerated three factors that courts should consider
when deciding whether a statute will have a retroactive effect that results in
a manifest injustice. Applying these
factors, the Court decided that the new section of the act at issue would not
burden the school board and that the school board would not incur new
constitutional duties; thus the new section would apply to the pending case. Accordingly, if applying the law in effect
would result in manifest injustice, the law in effect should not be applied.
Over fifteen years later, the first canon reappeared in Bowen v. Georgetown
University Hospital. This case
addressed an administrative agency's power to promulgate retroactive cost
limiting regulations after Congress gave the agency the power to make such
regulations. The Court found that while
the Act authorized the agency to promulgate regulations, it did not expressly
delegate the authority to apply these regulations retroactively. Because there was no express grant of authority, the
Court held that the regulations could not be applied to existing cases. In its reasoning, the Court recognized the
presumption against retroactivity absent express congressional intent, thus
reemphasizing the original canon.
One year later, in Kaiser v. Bonjorno, the Court supported the
Bowen decision and its presumption against retroactivity. In Kaiser, the Court stated that it did not need
to consider the retroactivity issue in-depth because Congress had expressly
addressed this issue in the Act. However,
the Court observed that previous courts had digressed because they discontinued
the presumption against retroactive application of legislation. The Kaiser Court cited other cases supporting its
return to the original canon of statutory construction governing retroactive
application. In addition, the Court found
fault with the Thorpe and Bradley decisions. The concurring opinion stated that in order to eliminate
past confusion and conform with longstanding precedent, the original canon
should be adopted. Subsequent cases have
maintained the uncertainty surrounding retroactivity because numerous courts
support each canon and collectively are unable to choose one canon over the
III. THE SUPREME COURT ATTEMPTS TO RESOLVE THE CONFLICTING CANONS OF
When the Supreme Court decided Landgraf v. USI Film Products, it appeared that the dichotomy had been
resolved because the Court promulgated a test for determining whether or not to
apply a new law to pending cases. In
Landgraf, the Court held that the new damage provisions in the Civil
Rights Amendments of 1991 did not apply retroactively to a pending case.
After describing the legislative history of the 1991 Amendments and addressing the plain language arguments raised by
Landgraf, the Court turned to the issue
of retroactivity and the conflicting canons of construction. The Court began its analysis by noting that there was
no tension between the holdings in Bradley and Bowen. The Court discussed the history of the
canons of construction and the various
constitutional provisions against retroactive application of legislation. Additionally, the Court explained the
apprehension toward retroactivity,
while also noting some of the positive aspects of retroactively applied
Before setting out the new test, the Court cited other decisions that defined
retroactivity. Justice Story's early
definition was one cited explanation.
According to the Court, the most important question to be asked when
determining whether a statute should operate retroactively is whether the new
provision attaches new legal consequences to events completed before its
enactment. In conjunction with this
determination of the effect of retroactive application on vested rights, the
Court noted that "[b]ecause rules of procedure regulate secondary conduct
rather than primary conduct, the fact that a new procedural rule was instituted
after the conduct giving rise to the suit does not make application of the rule
at trial retroactive."
Having explained the definition of retroactivity, the Court then set out its
new test to determine if legislation should be applied retroactively. First, a court must determine whether
Congress expressly prescribed the reach of the legislation. If so, the express provision is considered
determinative and the inquiry ends.
However, if Congress does not make an express statement, then a court, using Justice Story's explanation of
retroactivity, must determine whether the new statute would have a retroactive
effect. If the statute impairs the
rights a party possessed when he acted, increases a party's liability for past
conduct, or imposes new duties with respect to transactions already completed,
the statue operates retroactively.
Absent clear congressional intent, a statute will not be applied
retroactively. The Court went on to
conclude that if the new damage provisions would operate retroactively, the
parties' planning would be impacted.
Therefore, the Court held that the 1991 Act would not be applied to cases
pending at the time of the enactment.
In Landgraf, the Supreme Court appeared to reconcile the conflicting
decisions in Bowen, Bradley, and Thorpe. However, the lower courts' attempts to apply
Landgraf to the issue concerning the retroactive application of the
Anti-Terrorism and Effective Death Penalty Act had merely perpetuated the
circuit split on retroactivity and the application of new statutes to pending
IV. THE CIRCUITS ATTEMPT TO APPLY THE SUPREME COURT TEST TO THE
ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT AND CONFUSION ENSUES
Applying the Landgraf test articulated by the Supreme Court, the United
States District Court for the District of Idaho held in Leavitt v.
Arave that the Act applied to
pending cases. In Leavitt, the
court evaluated the plain language, the
structure, and the legislative history
of the Act. From this evaluation, the
court concluded that Congress had not expressly stated its intent regarding
Applying the second part of the Landgraf test, the court reasoned that
there is no common law doctrine that creates a vested right for a state
prisoner to obtain habeas corpus review under the habeas laws in effect at the
time of trial and sentencing.
Therefore, according to the court, the Act only addressed the court's powers
and did not affect parties' vested rights. The court defined the Act as remedial in nature, giving prospective-type relief, and not operating retroactively as
defined by the second part of the Landgraf test. Because the relief is prospective in nature and does
not impair the vested rights of a party, courts should apply the law in effect
at the time they render their decision.
Therefore, the court held that the Act does apply to cases that were pending
when the Act was ratified.
Other courts also addressing the issue of whether the Act applies to pending
cases have concluded similarly. In
Zuern v. Tate, the United Stated
District Court for the District Court of Ohio noted a distinction between
primary conduct and secondary conduct.
The court reasoned that applying new procedural rules at trials for acts
occurring before the rule was enacted do not raise retroactivity concerns. The court held that the changes in habeas
procedures do not regulate primary conduct and do not operate retroactively
when applied to pending cases.
Therefore, the Act was applied to the pending case.
On the other hand, some courts applying the Landgraf test have
determined that the Act does not apply to pending cases. Some of these cases
use only the first prong of the Landgraf test to reach their
conclusion. In Warner v. United
States, a district court in
Arkansas refused to consider whether the Act applied to the case pending when
the Act was signed into law. The court
instead used the Landgraf test to conclude that because Congress did not
expressly state that the statute applied retroactively, it does not apply to
A district court in Illinois reached a similar decision in United States v.
Trevino. The court held that
because Congress specifically mandated that the new Chapter 154, which concerned only capital cases,
applied to pending cases, the remainder of the Act applied only
prospectively. Again, the court
utilized the first prong of the Landgraf test, holding that Congress clearly stated that the Act would
not apply to pending cases. However,
the court then went on to say that even if the expression was not clear,
application to pending cases would operate retroactively. But, the court did not explain this statement
concerning the second prong of the Landgraf test, supporting its holding
by finding that Congress expressed its clear intent against application of the
Act to pending cases.
One other group of cases applies the second prong of the Landgraf test to reach the conclusion that the Act does
not apply to pending cases. In
United States v. Barnett, a
district court in Illinois held that the Act did not apply to pending cases. The court reasoned that because the
standard of review by which federal courts analyze habeas petitions is narrowed
by one of the amended sections of the Act, the Act affects the quantum of
protection courts give the rights of the defendant. According to the second part of the Landgraf
test, application of the Act to pending cases operates retroactively. Therefore, the court decided that the Act
cannot be applied to pending cases.
The Landgraf decision and the test it promulgated for determining
whether a new act should apply to pending cases apparently did not resolve the
conflict between the canons of construction. The courts applying the
Landgraf test still could not agree on whether the Anti-Terrorism and
Effective Death Penalty Act should apply to cases pending when the Act was
V. THE SUPREME COURT'S DECISION
In the midst of the confusion among the circuit courts regarding how to apply
the amended provisions of the Act, the Supreme Court agreed to hear a case
concerning the retroactive application of the non-capital provisions of the
Act. The Supreme Court agreed that the
Landgraf test should be applied.
The Court began and ended with the first prong of the Landgraf test, holding that the amended provisions did
not apply to pending cases because Congress had clearly expressed its intent
that the provisions not apply. Thus,
the Court did not need to determine whether these provisions should apply
retroactively under the second prong of Landgraf.
Most important than the Court's decision and rationale is the fact that the
Court was unable to resolve the ambiguities that its decision created. The Court acknowledged not only that the
ambiguities existed, but also that it could not clear up these ambiguities with
its decision. Instead, the Court
explained thee ambiguities by stating that the Act was not Congress' best
The Supreme Court resolved the circuit split and chose to follow the line of
cases holding that Congress had expressed its clear intent, using only step one
of the Landgraf test.
In Landgraf, the Supreme Court developed the definitive test for
determining whether to apply a new statute to pending cases. However, the application of this test has
proved problematic. In an attempt to
determine which circuit decision best comports with the Landgraf test,
the Supreme Court decided Lindh.
Did the Supreme Court make the right choice?
A. Evaluation of the Supreme Court's Decision Using the Landgraf Test<
The first prong of the Landgraf test requires a court to consider
whether Congress expressly stated its intentions concerning retroactive
application of a statute. If Congress
clearly expressed its intentions, then this statement controls the statute's
application, and the court's inquiry ends. This was the Supreme Court's position in
Lindh. The court at this stage
evaluates the language, structure, and legislative history of the statute.
The plain language of the Act is not dispositive of Congress' intent. For
instance, Congress expressly states in the introduction to the new Chapter 154,
which is not at issue, that the new chapter applies to pending cases. However, there is no similar statement in
the introductions to any of the amended sections of the Act at issue,
specifically sections 2244, 2253, and 2254. The Supreme Court states that the
express inclusion of this statement in the introduction of Chapter 154 means
that Congress expressly excluded this from any section in which a similar
statement does not appear. Therefore,
Congress did not intend to apply the sections at issue to pending cases.
However, this reasoning is flawed because it interprets Congress' silence as an
express statement of intent. Although silence may lead the court in one
direction or another, silence is not dispositive of the Congress' intent. The
only clear statement of congressional intent regarding the sections of the Act
at issue would be a statement similar to the one at the beginning of Chapter
154. The same clear meaning cannot be derived from the lack of such a
statement. Therefore, the plain language of the Act does not demonstrate
Congress' intent regarding the application of the Act to pending cases.
The Act's structure may be evaluated in conjunction with its plain language to
determine if Congress expressed its intent. Through this evaluation, it appears that Congress
intended that the legislation would work together with the other sections in
order to achieve the congressional purpose. Many of the provisions in the new Chapter 154, not at
issue, depend upon the application of the amended sections at issue.
This statutory interaction suggests that Congress intended the whole Act to
take effect on the same date. It would be difficult to apply Chapter 154 to
pending cases while not applying the other amended sections to these same
pending cases. If Congress intended the amended sections of 2244 and 2254 to
apply only to those cases that fall under Chapter 154, it would have written
the Act differently. On the other hand,
this evaluation of the Act's structure merely leads to an unsubstantiated
inference as to Congress' intent when writing the Act. This is by no means a
clear statement of congressional intent. Therefore, because the statutory
structure does not provide it, there is no clear expression of congressional
The Supreme Court found that it could rationalize most of the interaction by
creating different functions for the problematic sections, which would allow the Court to eliminate almost all of
the interaction ambiguities except for one. Therefore, the Supreme Court blames the poorly written
statute. It appears that because the
Supreme Court had to make these assumptions in order to rationalize the
ambiguities, it cannot then say that the congressional intent was clear. Thus
far it appears that neither the structure of the Act nor its language clearly
states any congressional intent regarding application of the amended sections
to pending cases.
The remaining factor to consider in the first prong of the Landgraf test
is the legislative history of the Act. Most of the arguments concerning the Act
centered around the habeas corpus provisions. However, these arguments focused on whether or not the
habeas corpus provisions should even be included in the Act. The arguments did not address the application of the
provisions to pending cases. The legislative history does support the concept
of structural interaction. Congress viewed the amendments and Chapter 154 as a
consolidated approach to the goal of habeas reform. Most of the discussion about the habeas corpus portion
of the Act debates the consequences of habeas corpus reform and does not
distinguish between the amended provisions and Chapter 154. This suggests that
the two cannot be separated into provisions that do and do not apply to pending
cases. This is merely an implication and cannot be adopted as a clear
expression of congressional intent.
When analyzing the Act under the first prong of the Landgraf test, it
appears that Congress failed to make a clear statement of intent in either the
plain language, the structure, or the legislative history of the Act. Thus, it appears that the Supreme Court
either made the wrong choice or was forced into making an unlikely choice by
the poorly written statute.
B. Rewriting the "Pig's Ear" of Statutory Drafting<
The Supreme Court states that the Act as written is not like a silk purse but
more like a pig's ear. Congress must
rewrite the Act so that it is more understandable. The rewrite should take into consideration the
Landgraf test that would be applied to determine the Act's
1. The Problems and the Rewrite Under Landgraf Step One<
Congress' error in drafting this Act is that it did not clearly in express any
intent as to the Act's application to pending cases. Prong one of the Landgraf test evaluates and
follows the clear intent of Congress. The easiest way for Congress to remedy
this poorly written Act is to state its intent clearly so that courts will need
only the first prong of the Landgraf test to determine the Act's
application to pending cases.
Another problem with the Act is the interaction between its sections. Stating an effective date for one set of
provisions that interact with another set of provisions with no effective date
adds to the statutory confusion. A rewrite of the Act would have to explain the
interaction more exactly.
The new act would have the same Chapter 154 and amended Chapter 153 provisions.
The effective date provision for Chapter 154 would be removed as it is written
now, to be inserted later. After the Chapter 153 and Chapter 154 provisions are
explained, a new section should be added. This section should explain in detail
the interaction between Chapter 153 and Chapter 154. The explanation should
include examples of situations where both Chapters would be used. After this
detailed explanation of how these provisions interact, the Act should have
another section dealing with application to pending cases.
In this new section, Congress should clearly state how both of the Chapters
should be applied, including their interaction. Congress could say that for all
capital cases using this system under either Chapter 154 itself, or in
conjunction with Chapter 153, the Act does apply to pending cases. In another
paragraph of this new section, the Act could explain that for all non-capital
cases using this whole system whether or not there is any interaction between
Chapters, the Act does not apply to pending cases.
This simple rewrite assures that the congressional intent is clear and
therefore only prong one of the Landgraf test needs to be applied.
Congress clearly states when the chapters are to be applied. This remedies the
largest problem with the Act as it is written now. In addition, the rewrite explains the interaction
between provisions and includes this in the effective date provisions, thus
remedying Congress' second largest problem with the Act as it is written now.
2. Why Avoid Step Two of the Landgraf Test?
Under prong two of the Landgraf test, it must be determined whether
applying the Act to pending cases would have a retroactive effect. That is, would application of the Act
impair rights a party possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to transactions already
completed. If the Act would do any of these things, it will not be applied to
pending cases. In Lindh, the Supreme Court avoided this issue by
deciding that Congress had expressed its clear intent that the amended
provisions did not apply to pending cases. The Court was prudent in avoiding the problems with the
second part of the Landgraf test.
There are various interpretations on how to use step two of the Landgraf
test to determine whether the application of a statute will have a retroactive
effect. For example, the Landgraf Court makes significant use of the
substantive/procedural theory. Under
this theory, those laws that only effect procedural rights or secondary conduct
do not have a retroactive effect. They do not impair vested rights or primary
conduct nor do they add unexpected liability for already completed acts.
Using this test, application of the Act to pending cases would appear to have
no retroactive effect. The changes in the habeas corpus proceedings are mostly
procedural, concerning statute of limitations on filing deadlines, the procedures for allowing a habeas
corpus petition into the Supreme Court through the three-judge panel, and the situations in which a court may
grant a writ of habeas corpus.
Another approach under the second prong of the Landgraf test and the
determination of a statute's retroactive effect is to evaluate the general
category of rights affected. Under this theory, criminal changes are allowed
less often than civil because applying criminal changes to pending cases more
often results in the loss or alteration of a vested right. As support, this theory uses reliance, interest in
liberty, and interest group protection.
Under this theory, the criminal procedural changes would likely be found to
operate retroactively. One could argue that the prisoners relied on the fact
that they did not have a statute of limitations period for their claims and
therefore waited to file them. By relying on this belief, these prisoners may
have lost their ability to file their claims. If a prisoner may be released on
a writ of habeas corpus, but is not given the opportunity to initiate habeas
proceedings due to the application of the statute of limitations or the
three-judge panel to his pending case, his liberty interest is violated. In
addition, there are probably not many interest groups protecting the rights of
the incarcerated, while many are protecting the rights of civil litigants. These criminal changes would appear to
operate retroactively more so than civil changes. Under this theory, the
amended criminal provisions would not be applied to the pending cases.
These various theories lead to different outcomes depending upon whether, under
the second prong of the Landgraf test, the Act would operate
retroactively if applied to pending cases. Not only do the theories lead to
different results, but the circuit courts could not uniformly choose one way to
apply prong two of this test. These
difficulties illustrate that step two of the Landgraf test is not only
awkward to apply, but its application should be avoided. Any rewrite must
remove step two of the Landgraf test from the analysis of the Act. Thus,
as explained earlier, a congressional rewrite must only use prong one of
Landgraf, thereby expressing a clear intent as to application of the Act
to pending cases.
The courts are constantly divided over when a new statute can be applied to
pending cases. The Supreme Court contributed to this confusion by developing
two opposing canons of construction used to decide this issue. After creating
the confusion, the Court attempted to rectify the situation by presenting the
lower courts with the Landgraf test, ostensibly the definitive answer to
the question of whether to apply a new statute to pending cases. However, when
the lower courts tried to apply the Landgraf test, confusion ensued. The
result was a three-way circuit split concerning the application of the
Anti-Terrorism and Effective Death Penalty Act to pending cases. The Supreme
Court's attempt to resolve the confusion failed because of the poorly written
The Anti-Terrorism and Effective Death Penalty Act must be rewritten to avoid
further confusion. The second prong of the Landgraf test has proven too
difficult for circuit courts to apply, therefore any rewrite must avoid this
prong in any statutory analysis. Prong one of the test is a simple, easy-to-use
test that looks only to congressional intent. Congress failed to state any
clear intent in the Act. The problems with both the circuit courts' application
of the Landgraf test and the Supreme Court's interpretation of the
effective date of the Act in conjunction with the interaction of the statute
would be solved if Congress rewrote the Act to state its clear intent.
Robin C. Trueworthy
[1.] Pub. L. No. 104-132, 110 Stat. 1214
(codified as amended at 28 U.S.C. §§ 2241-2266 (1997)).
[2.] Originally, the writ of habeas corpus was
available on a limited basis only to those who were in the custody of the
United States authorities, specifically federal prisoners. See Judiciary
Act of 1789 ch. 20, § 14, 1 Stat. 73, 81-82 (current version at 28
U.S.C. § 2241(a) (1997)); Dallin H. Oaks, The "Original" Writ of
Habeas Corpus in the Supreme Court, 1962 SUP. CT. REV. 153. The Judiciary
Act of 1867 expanded appellate jurisdiction, allowing habeas corpus appeals to
go directly to the Supreme Court once the final decision has been rendered by
the circuit court. For more information on the history of habeas corpus
limitations, see The Goldwater Institute and the Federalist Society:
Federalism and Judicial Mandates, 28 ARIZ. ST. L.J. 17, 141-45 (1996);
WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 126-56 (1980).
[3.] The bill, introduced shortly after the
1995 Oklahoma City bombing, lingered in Congress for almost a year before the
President finally signed it into law one year after the bombing. Tom C. Smith,
Crime Legislation Passes in Election Year, 11-SUM CRIM. JUST. 50 (1996).
The bill had bipartisan support ranging from Senator Bob Dole to President
Clinton. Thomas C. Martin, The Comprehensive Terrorism Prevention Act of
1995, 20 SETON HALL LEGIS. J. 201, 205 (1996). The impetus for the bill was
the desire for a plan to combat terrorism; thus the bill's legislative history
is replete with references to various plans regarding terrorism. See id.
at 211-33. Perhaps one of the more controversial sections of the bill, however,
was the portion mandating habeas corpus reform. See id. at 233. Many of
those opposed to habeas reform were concerned about its general inclusion in
the terrorism bill. "Many of the stories we hear during this debate rely on
their persuasive power on the grief and rage many of us feel after a brutal
murder. . . . Grief and rage are not good foundations for making
good policy. . . ." Id. at 233, 234, n.162. Moreover,
opponents of habeas reform were also concerned that the executions of innocent
people would be facilitated by the changes in capital crime procedures. See
id. Defenders reiterated that habeas reform should be included in the
terrorism bill because of the abuse of the appeals processes. See id. at
233, 234 n.164. Yet, none of this legislative debate concerned the issue of the
Act's application to pending cases. For more information on the legislative
history of the Act, see id. at 201-40.
[4.] 110 Stat. 1214. One of the reasons
underlying the enactment of this legislation was that scheduled executions were
subject to lengthy delays due to extended inmate appeals. Motivated by the
Oklahoma City bombing, this legislation also includes regulations, such as
those that render terrorism a federal offense, expand the role of the Federal
Bureau of Investigations ("FBI") in solving terrorist crimes, and impose the
death penalty for terrorist crimes. See White House Fact Sheet on
Terrorism, 1996 U.S. Newswire, Sept. 24, 1996, available in 1996 WL
12123033. The new law also requires immigration officials to detain and deport
any non-citizen who previously has been convicted of any crime. Further, the
law eliminates waivers of deportation. For more information concerning the
various other provisions of the Act, see Martin, supra note 3.
[5.] Pub. L. No. 104-132, § 107, 110
Stat. 1214, 1221 (codified as amended at 28 U.S.C. § 2261 (1997)).
This new chapter is enacted not merely to limit habeas corpus relief, but also
to ensure adequacy of counsel to those in need of representation. Essentially,
the new chapter requires death-row inmates to file their petitions for writ of
habeas corpus within 180 days of the final denial of their state appeals.
See 28 U.S.C. § 2263 (1997). Previously, there was no filing
deadline. This chapter also states that if the death row inmate fails to
challenge his conviction in an initial habeas corpus petition, no other appeals
can be filed unless approved by a three-judge court of appeals. 28 U.S.C.
2244(b). This limitation applies to all general habeas corpus petitions, not
just those of death-row inmates.
[6.] See 28 U.S.C. § 2261(b)
[7.] See 28 U.S.C. §§
2244(101), (106), 2253(102) and 2254(104) (1997).
[8.] This is not limited to capital cases.
[9.] See 28 U.S.C.
§ 2244(d)(1) (1997).
[10.] Section 2244(b)(1) states that "a claim
presented in a second or successive habeas corpus application under
§ 2254 that was presented in a prior application shall be
[11.] 28 U.S.C. § 2244(b)(3)(E)
(1997); 110 Stat. 1214, 1221. The petitioner cannot seek Supreme Court review
of the three-judge panel's decision. See id.
[12.] 28 U.S.C. § 2254(d) (1997).
This amended section only allows habeas relief if the adjudication of the claim
resulted in a decision that was contrary to, or involved an unreasonable
application of, a clearly established federal law as determined by the Supreme
Court, or if the adjudication resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in a
state court proceeding. See id. Before this new law, prisoners could
obtain relief under a wide range of precedents set by lower federal courts, or
on the basis of state court rulings not yet evaluated by tested the United
States Supreme Court.
[13.] Felker v. Turpin, 116 S. Ct. 2333
(1996). This case also tested the constitutionality of habeas corpus reform.
The Court upheld the changes as constitutional. See id. at 2335. For an
explanation of habeas corpus reform changes, see Smith, supra note 3.
[14.] Chapter 154 governs the procedures
applicable specifically to capital cases. "Chapter 154 of Title 28, United
States Code (as added by subsection (a)) shall apply to cases pending on or
after the date of enactment of this Act." 28 U.S.C. § 2261 (1997)
(see Historical and Statutory Notes).
[15.] See infra notes 16-21 and
accompanying text. Furthermore, in one case, the court was unable to decide
whether to apply the Act retroactively. To alleviate this conflict, the court
applied both the Act and pre-Act habeas corpus law. The court then used the law
that proved the least damaging to the defendant. See Cockrum v. Johnson,
934 F. Supp. 1417, 1424 (E.D. Tex. 1996).
[16.] Lennox v. Evans, 87 F.3d 431 (10th Cir.
1996); Leavitt v. Arave, 927 F. Supp. 394 (D. Idaho 1996); Zuern v. Tate, 938
F. Supp. 468 (S.D. Ohio 1996).
[17.] See, e.g., Leavitt, 927
F. Supp. at 397.
[18.] See Lennox, 87 F.3d at
[19.] See Leavitt, 927 F. Supp. at
[20.] See United States v. Barnett,
No. 96 C 1274, 1996 WL 400016 (N.D. Ill. July 15, 1996).
[21.] See Warner v. United States, 926
F. Supp. 1387 (E.D. Ark. 1996); United States v. Trevino, No. 96 C 828 1996 WL
252570 (N.D. Ill. May 10, 1996).
[22.] See infra notes 163-71 and
[23.] JOHN RAWLS, A THEORY OF JUSTICE 235
(1971). For a general discussion of the principle of the rule of law, see LON
FULLER, THE MORALITY OF LAW (1964).
[24.] The phrase "ex post facto" includes and
describes all retroactive laws.
[25.] See Cummings v. Missouri, 71
U.S. 277, 323 (1866) (detailing abuse in England).
[26.] Bryant Smith, Retroactive Laws and
Vested Rights, 6 TEX. L. REV. 409, 412 (1928). Interestingly, there is some
suggestion that this bias against retroactive legislation truly saw its start
in Ancient Greece with the dilemma of Timokrates and the Athenian Ambassadors.
For more information, see Elmer E. Smead, The Rule Against Retroactive
Legislation: A Basic Principle of Jurisprudence, 20 MINN. L. REV. 775, 775
(1936) (citing VINOGRADOFF, OUTLINES OF HISTORICAL JURISPRUDENCE 139, 140).
[27.] U.S. CONST. art. 1, § 9, cl.
3 and § 10, cl. 1.
[28.] See Smith, supra note 26,
[29.] Harold J. Krent, The Puzzling
Boundary Between Criminal and Civil Retroactive Lawmaking, 84 GEO. L.J.
2143, 2144 (1996).
[30.] 123 N.Y. 474 (1890). In this case, the
plaintiff and defendant were arguing over who had rightful title to the land in
controversy. In addition to deciding whether title had in fact passed, the
court also addressed whether a newly written law perfected the title that the
tax-sales attempted, but failed, to transfer. See id. at 488-89. The
court decided that the legislature did not have the right to take land from one
and give it to another under the guise of confirming a sale when no title had
actually passed from the owner to the purchaser. See id. at 489. The
court noted that there were situations where the legislature could cure a
defect from a prior statute, but this was not one of them. See id. at
490. The court held that the legislative power did not reach to the transfer of
title simply by attempting to confirm a void sale. See id. at 493.
[31.] Specifically, the court stated that
[I]f the thing omitted and which constitutes the defect be of such a nature
that the legislature might by prior statute have dispensed with it, or if
something had been done, or done in a particular way, which the legislature
might have made immaterial, the omission of irregular act may be cured by a
Id. at 490.
[32.] Retroactivity alone is not grounds for
an objection. Laws are not unconstitutional unless there are other objections
to their application. Smith, supra note 26, at 415. Scott Pearson
suggests that the Nuremberg trials exemplify a positive retroactive application
of a statute. The need to punish justified the application of newer laws to
those who acted pursuant to the positive law in Nazi Germany. Scott M. Pearson,
Canons, Presumptions and Manifest Injustice: Retroactivity of the Civil
Rights Act of 1991, 3 S. CAL. INTERDISC. L.J. 461, 476 (1991).
[33.] See Smith, supra note 26,
[34.] See id. at 417, n.26.
[35.] The argument here is that one cannot
regulate her own conduct according to the law if there is no notice of the law
and of what conduct the law prohibits.
[36.] See Smith, supra note 26,
[37.] This is to say that there are those
who, having never read law books, are not aware of laws and therefore have no
notice of them even when those laws are only applied prospectively.
On the other hand, laws of a retroactive nature, affecting the rights of
individuals, not adverse to equitable principles and highly promotive of the
general good, have often been passed and as often approved . . . I very much
question whether there is an existing government in which laws of a retroactive
nature and effect, impairing vested rights, but promotive of justice and the
general good, have not been passed.
Smead, supra note 26, at 785, n.36 (citing Goshen v. Stonington, 4 Conn.
[39.] Bryant Smith explains a methodology to
determine the validity of retroactive legislation. According to Smith, one
needs to make an allowance for the automatic prejudice against this form of
legislation, and then realize that the retroactive legislation cannot be judged
in a vacuum, but rather must be judged as it appears in each circumstance.
Smith, supra note 26, at 421.
[40.] United States v. Schooner Peggy, 5 U.S.
103 (1801). For an explanation of this case, see infra notes 77-82 and
[41.] When the circuit split over retroactive
application of the Act is analyzed, this canon of construction conflicts with
another canon of statutory construction. See infra notes 69-74 and
[42.] In Dash v. Van Kleeck, for
example, the prosecution sought to utilize a statute providing the sheriff with
a defense when a prisoner escaped. 7 Johns, 477, 503 (N.Y. 1811); see also
Smead, supra note 26, at 782-83. Yet this statute was not enacted
until after the escape occurred and trial had commenced. Chief Justice Story
noted that applying the law would defeat the plaintiff's suit already commenced
concerning a right that had already vested. In addition, the plaintiff would
then have to incur costs of trial. See id.
[43.] Justice Story was one of the first to
recognize the two different meanings of retroactive laws. In a circuit court
case he asked, "[i]s it [the term retrospective laws] confined to statutes,
which are enacted to take effect from a time anterior to their passage, or does
it embrace all statutes, which, though operating only from their passage,
affect vested rights and past transactions?" Id. at 782 (citing Society
for the Propagation of the Gospel in Foreign Parts v. Wheeler, 2 Gall. C.C.
105, 139 (1814)). He determined that retroactive laws encompassed the latter
definition. Otherwise, the purpose of the restriction to protect rights would
be lost. Protection of rights must include vested rights, and should not be
limited to the time frame of the retroactive statue. See id. See
also Ray A. Brown, Vested Rights and the Portal-to-Portal Act, 46
MICH. L. REV. 723 (1948) and Pearson, supra note 32, at 474 (short
synopsis of the various definitions used to explain retroactivity).
[44.] See Smead, supra note 26,
[45.] See Miller v. Florida, 482 U.S.
423 (1987); Weaver v. Graham, 450 U.S. 24 (1981); Williams v. Lee, 33 F.3d 1010
(8th Cir. 1994); United States v. Parriett, 974 F.2d 523 (4th Cir. 1992);
Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967). See also infra
notes 57-58 and accompanying text.
[46.] In Kaiser Aluminum & Chemical
Corp. v. Bonjorno, the Court noted the "apparent tension" between the
doctrines used to decide whether to apply a new statute to pending cases. 494
U.S. 827, 828, 837 (1990).
[47.] For a more in-depth explanation of
these factors, see Charles B. Hochman, The Supreme Court and the
Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692
[48.] If public interest is of great
importance, retroactive application may be easier to accept. If there is no
discernible public purpose underlying the retroactive application of a law,
courts will be even less inclined to enforce the law. See FHA v. The
Darlington, Inc., 358 U.S. 84, 93 (1958) (Harlan, J., dissenting). On the other
hand, if the statute serves to remedy legitimate public concerns, courts will
be more lenient towards the retroactive legislation. See Veix v. Sixth
Ward Bldg. & Loan Ass'n, 310 U.S. 32, 39-40 (1940). However, when standing
alone this element concerning the nature of the public interest may not be
sufficient to sway a judge.
[49.] Presumably, the legislature may alter
or modify existing rights, but may not totally abolish the right itself.
See League v. Texas, 184 U.S. 156, 158 (1902). However, the Court has
not been satisfied in relying solely on the clear abrogation or extinguishing
of rights. In Lynch v. United States, 292 U.S. 571, 582-83 (1934), the Court
recognized that the modification of a substantial part of a remedy, or all of a
remedy, may have the effect of removing the right entirely. See also
Smith, supra note 26, at 244.
[50.] If the right has been completely
vested, a court may be less likely to enforce a retroactive statute to remove
that right. However, Charles B. Hochman points out that case law does not
support this contention. See Hochman, supra note 47, at 717. To
support this conclusion, Hochman cites Louisville & Nat'l R.R. Co. v.
Mottley, 219 U.S. 467 (1911), and Battaglia v. General Motors Corp., 169 F.2d
254 (2d Cir. 1948).
[51.] "[D]ue to the suspicion with which the
same entity's entering into and later altering a contract is viewed, it seems
that the Court has tended to apply a stricter standard to statutes
retroactively affecting rights against the government." Hochman, supra
note 47, at 724. This concerns not only criminal rights, but also statutory
gratuities and penalties against the government. See id.
[52.] See Smead, supra note 26,
at 791-92 n.51. See also Stephen R. Munzer, A Theory of Retroactive
Legislation, 61 TEX. L. REV. 425, 462-70 (1982).
[53.] "[S]tatutes affecting limitation
periods and criminal procedure are harder to justify. . . ."
Munzer, supra note 52, at 462.
[54.] The courts' decisions concerning the
applicability of retroactive legislation that alter criminal procedure are
inconsistent. Compare Thompson v. Utah, 170 U.S. 343 (1898) (using an
8-man jury instead of a 12-man jury deprived the defendant of a constitutional
right guaranteed at the time of the commitment of the crime), overruled by
Collins v. Youngblood, 497 U.S. 37, 51 (1990) and Kring v. Missouri,
107 U.S. 221 (1883) (altering the effect of a guilty plea violated ex post
facto clause disadvantaging defendant), overruled by Collins v.
Youngblood, 497 U.S. 37, 50 (1990) with Hopt v. Utah, 110 U.S. 574,
587-90 (1884) (upholding a change that allowed a convicted felon to testify,
thereby convicting the defendant based on testimony that was inadmissible at
the time the crime was committed) and Thompson v. Missouri, 171 U.S. 380
(1898) (upholding a change allowing comparative handwriting samples to be
[55.] For a more detailed explanation of why
these areas support a more lenient approach as to retroactive application of
the laws, see Munzer, supra note 52, at 445-61.
[56.] Under Article 1 of the United States
Constitution, neither Congress nor any State shall pass any "ex post facto
Law." U.S. CONST. art. 1, § 9, cl. 3; U.S. CONST. art. 1,
§ 10, cl. 1. Justice Chase explained his understanding of the "ex
post facto" phrase in Calder v. Bull, 3 Dall. 386 (1798). Included within the
ambit of this clause was any legislation that made illegal an action that once
was legal, all laws that aggravate a crime and make it more serious than it was
when committed, those laws that increase the punishment, and all laws that
alter the rules of evidence and give defendants less protection than the law
required when the offense was committed. Courts have generally used this
understanding to explain the "ex post facto" clause. See Miller v.
Florida, 482 U.S. 423, 429 (1987).
[57.] For example, Miller v. Florida
involved a newly enacted sentencing guideline that increased the punishment.
See Miller, 482 U.S. at 425-26. The increased punishment was not
automatically given to the convicted defendant; rather, under the new scheme, a
judge was more likely to find a reason to impose the harsher penalty. See
id. at 426. The Court reasoned that because the new legislation
disadvantaged the offender, it could not be applied retroactively to cases
pending at the time the Act was passed. See id. at 435.
[58.] See Weaver v. Graham, 450 U.S.
24 (1981). The Court would not apply the state's change in its good-time credit
policy retroactively because it "constricts the inmate's opportunity to earn
early release." Id. at 35-36. The new legislation made it more difficult
for prisoners to accumulate credits. See id. See also Williams v.
Lee, 33 F.3d 1010 (8th Cir. 1994) (legislation enhancing penalty for parole
violations could not be applied retroactively); United States v. Parriett, 974
F.2d 523 (4th Cir. 1992) (refusal to apply retroactively a statute enhancing
the penalty for drug use during supervised release); Greenfield v. Scafati, 277
F. Supp. 644 (D. Mass. 1967) (refusing to apply similar good-time credit
changed retroactively). But see United States v. Reese, 71 F.3d 582 (6th
Cir. 1995) (upholding the retroactive application of similar provisions that
enhanced the penalty for drug use during supervised release), cert.
denied, 116 S. Ct. 2529 (1996). On the other hand, courts are more lenient
in the application of retroactive law-making in the civil context. See e.g.,
United States v. Carlton, 512 U.S. 26 (1994) (limiting the availability of
tax deductions for proceeds of sales of stock to employee stock ownership
plans); General Motors Corp. v. Romein, 503 U.S. 181 (1992) (upholding the
retroactive application of patent system statute); United States v. Darusmont,
449 U.S. 292 (1981) (upholding the retroactive application of a new minimum tax
provision); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988)
(upholding retroactive application of a new environmental statute imposing
liability on handlers and transporters of hazardous waste); Battaglia v.
General Motors Corp., 169 F.2d 254 (2d Cir. 1948) (upholding retroactive
application of statute expanding liability of employers for work performed by
employees during World War II).
[59.] The reliance theory is based on the
idea that individuals should be able to rely on existing law when planning
their affairs and conduct. See id. Krent, supra note 29, at 2160.
Reliance largely depends upon notice, which in reality is a fiction. Everyone
is not clearly on notice of that which is against the law and that which is
not. See id. at 2161. Criminal law, however, does not demand notice, as
"ignorance of the law is no excuse if the conduct is mala in se." Id.
[60.] It would be unfair to impose on someone
a law making their actions illegal when they were legal at the time the person
decided to act. See id. However, when the accused knew that the action
was illegal and the only alteration is the sentence for the crime, the
rationale is less clear. See id. at 2162. It is unlikely that the
accused accurately knew the exact sentence that could be imposed for the crime
before committing it. See id. It is also unlikely that the accused, if
caught, heavily contemplated the sentence. See id. It appears that few
criminals think they will be caught; therefore, fair notice and reliance as to
sentencing are unattainable. See id. Most Courts of Appeals have
rejected the reliance theory because it involves a costly case-by-case analysis
of the parties' expectations. See Pearson, supra note 32, at
[61.] The loss of a large amount of money due
to a retroactively applied law may seem unfair, but the loss of the years spent
in prison is a greater loss of liberty. See id. Krent, supra note
29, at 2166. The liberty interest is stronger in the criminal context than in
the civil. See id. On the other hand, the reliance interest appears
stronger in the civil context than the criminal. See id. at 2166-67.
See supra note 60 and accompanying text.
[62.] Under this theory, those affected by
criminal laws are less likely to have support in the political process and in
the legislature. These individuals are less likely to exist in the same social
circles as politicians. See Krent, supra note 29, at 2168. On the
other hand, those involved in civil litigation are more likely to have the
wealth and social status necessary to influence legislation that concerns civil
laws. See id. at 2174. Legislators more often enact criminal laws to
appease public opinion and to win the next election. Here, the criminal
defendant cannot find adequate protection from the legislature because of
natural self-serving interests. See id. at 2169-74.
[63.] See supra Part II.A and
[64.] See infra notes 67 and 71
and accompanying text.
[65.] In this context, the word retrospective
is synonymous with retroactive.
[66.] White v. United States, 191 U.S. 545,
[67.] This case concerned retroactive
application of a Navy personnel act that modified officers' compensation.
See id. at 549. Under the Act, officers appointed from civil life were
credited with five years' service. See id. at 550. The Court held that
this section would not apply retroactively to those hired before the enactment
because Congress did not expressly intend to apply the section retroactively.
See id. at 555. This canon was fully supported by precedent developed
from approximately 1806. See United States v. Heth, 7 U.S. 399, 413
(1806) (holding that unless no other meaning can be attached to the statutes'
words, they will not be taken to have retroactive application) and Murray v.
Gibson, 56 U.S. 421, 423 (1853). The case law subsequent to White v. United
States also supported the first canon of construction. See Miller v.
United States, 294 U.S. 435 (1935); Shwab v. Doyle, 258 U.S. 529 (1922); Union
Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190 (1913); United States
Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells
Co., 209 U.S. 306 (1908). This canon is also briefly mentioned earlier in this
Note. See supra notes 40-41 and accompanying text.
[68.] This is an example of the Court
utilizing its dislike of retroactive application of legislation to create the
first canon of construction.
[69.] 393 U.S. 268 (1969). Thorpe, a
low-income housing tenant, was evicted from her federally-assisted housing
shortly after she was elected president of the tenants' association. See
id. at 270-71. The housing authority refused to give any reasons for
Thorpe's eviction. See id. at 271. The housing authority won the suit
for summary eviction. See id. at 271-72. While the Supreme Court was
considering Thorpe's claim, the Department of Housing and Urban Development
created a regulation that prohibited local authorities from evicting tenants
without first providing reasons for the eviction and giving tenants an
opportunity to respond. See id. at 268, 272. After the North Carolina
court refused to apply the new advisory retroactively, the Supreme Court
reversed, holding that the new regulation must be applied because it was in
effect at the time of the state court's decision. In so holding, the Court
created a new canon of construction. See id. at 273-74.
[70.] See Thorpe, 393 U.S. at 281.
[71.] Under the first canon, if the law is
changed directly after an individual commits a crime but just prior to trial,
the new law would not apply. Because the crime took place before the passage of
the new law, there is a presumption against retroactive application. The second
canon, on the other hand, would apply the new law because it was in effect at
the time of the trial. Clearly, the two are irreconcilable.
[72.] See Thorpe, 393 U.S. at 283.
[73.] See, e.g., Ziffrin, Inc. v.
United States, 318 U.S. 73 (1943); Vandenbark v. Owens-Illinois Glass Co., 311
U.S. 538 (1941); Carpenter v. Wabash Ry. Co., 309 U.S. 23 (1940); United States
v. Chambers, 291 U.S. 217 (1934); United States v. Schooner Peggy, 5 U.S. 103
[74.] For a detailed explanation of this
case, see infra notes 77-82 and accompanying text.
[75.] See Thorpe, 393 U.S. at 281.
[76.] 416 U.S. 696 (1974). For a detailed
explanation of this case, see infra notes 83-89 and accompanying
[77.] 5 U.S. 103 (1801).
[78.] The circuit court overruled the
district court and found that the Peggy, upon capture, was the lawful prize of
the United States. See Schooner Peggy, 5 U.S. at 104-07. While the case
was pending on appeal, the two countries entered into a treaty that required
the U.S. to return to France any French property that had not yet been
definitively condemned. See id. at 107-08.
[79.] See id. at 107-08.
[80.] See id. at 110.
[81.] See Schooner Peggy, 5 U.S. at
[82.] Some commentators suggest that the
Court has continually adopted a broadened interpretation of Schooner
Peggy, increasing its scope. Kristine N. McAlister, Recent Development,
Retroactive Application of the Civil Rights Act of 1991, 45 VAND. L.
REV. 1319, 1327-31 (1992). For more information and opinions concerning the
Court's expansion of the decision in Schooner Peggy, see Pearson,
supra note 32, at 494-95.
[83.] 416 U.S. 696 (1974). The plaintiffs
sought attorney's fees and litigation expenses incurred during a drawn-out
school desegregation class action suit. See id. at 705-06. The district
court awarded the fees even though there was no statute in effect explicitly
authorizing them to do so. See id. at 708-09. The court of appeals
reversed because there was no congressional provision awarding such fees. While
this case was pending, Congress enacted section 718 of Title VII of the
Emergency School Aid Act that explicitly authorized the award of attorney's
fees and expenses. The court of appeals would not apply the new section to the
pending case. See id. at 710. The Supreme Court overruled this decision
and applied the new section of the Act to the pending case. See Bradley
v. Richmond School Board, 416 U.S. 696, 715-16 (1973).
[84.] The Bradley Court quoted to
Schooner Peggy, stating "`It is true that in mere private cases between
individuals, a court will and ought to struggle hard against a construction
which will, by a retrospective operation, affect the rights of parties, but in
great national concerns . . . the court must decide according to existing laws.
. . ." 416 U.S. at 712 (citing Schooner Peggy, 5 U.S. at 110 n.16).
[85.] "Where Congress has expressly provided
. . . that legislation was to be given only prospective effect, the
courts, in the absence of any attendant constitutional problem, generally have
followed that lead." Bradley, 416 U.S. at 716 n.21.
[86.] See Bradley, 416 U.S. at 716-17
(citing Greene v. U.S., 376 U.S. 149 (1964)).
[87.] See Bradley, 416 U.S. at 717.
The first factor was the nature and identity of the parties. See id.
Private disputes between private parties require more thought before applying a
new statute to the pending case. The second factor was the nature of the
parties' rights. See id. at 720. The court should not apply a new
statute to a pending case if its application will deprive a person of a right
that had matured or become unconditional. See id. The final factor was
the impact the change in the law had upon the aforementioned rights. See
id. Thus, if the new statute would impose a new or unanticipated obligation
upon a party without notice or opportunity to be heard, the statute should not
be applied to the pending case. See id.
[88.] See id. at 724.
[89.] See id. at 716-17. The Court
also cited to cases holding similarly that if manifest injustice would result
from the change in the law, the new law will not be applied. See id. at
720. See, e.g., Greene v. United States, 376 U.S. 149, 160
(1964); Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164 (1944);
Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913).
Although this premise may have existed prior to Bradley v. Richmond School
Board, Bradley did clarify the previous holdings, building upon the canon
developed in Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969).
See, e.g. Kaiser Aluminum Chemical Corp. v. Bonjorno, 494 U.S. 827,
840-41 (1990) (Scalia, J., concurring).
[90.] 488 U.S. 204 (1988).
[91.] The Secretary of Health and Human
Services gained the power to promulgate regulations that established the amount
that the government would reimburse health care providers for providing
Medicare services. See id. at 205-06. The Secretary then issued
regulations revising the method for computing these expenses. See id. at
206. These new regulations were invalidated by the district court only to be
reinstituted three years later through the proper channels. See id. at
206-07. The Secretary then applied these regulations retroactively to all cases
arising after the date of their original release. See id. at 207. The
issue is this case was whether the Secretary had the ability to apply these
regulations retroactively. The Court held that the regulations could not be
applied retroactively. See id. at 213-14.
[92.] See id. at 213.
[93.] See id. at 213-14. The Bowen
Court reasoned that retroactivity was not favored in the law. See
id. at 208. The Court stated that rules will not be applied retroactively
unless the express language of the Act so requires. See id. In addition,
the Act's legislative history addressed retroactive application. See id.
at 214. The Court interpreted these discussions as disfavoring
[94.] See id. at 208.
[95.] 494 U.S. 827 (1990). In this suit, the
plaintiffs were granted judgment against the defendant based on defendant's
monopolization of the market for aluminum pipe fabrications. See id. at
829. The district court entered a judgment on August 22, 1979. See id.
at 830. The district court then reconsidered the damages and, on retrial,
awarded the plaintiffs a lower amount. See id. While the case was
pending, Congress enacted a bill that altered the date on which damages should
be calculated. See id. at 831-32. The issue was whether the new
provision applied to the pending case for calculation of damages. See
id. at 834.
[96.] The Court realized that the damages
could not be calculated from the original entry of judgment because the
district court found those damages unsupported. See id. at 836. In
addition, both versions of the statute refer to the date judgment was entered,
which was not until the district court finalized its decision. See id.
[97.] See id. at 841 (Scalia, J.,
concurring). In this case, the majority based its holding on other grounds
without addressing the conflicting canons of statutory construction. See id.
In his concurring opinion, however, Justice Scalia delineates the two
canons and explains that the original is the correct canon to apply. See
[98.] See Miller v. United States, 294
U.S. 435 (1935); Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S.
190 (1913); United States v. Fidelity & Guaranty Co. v. United States ex
rel. Struthers Wells Co., 209 U.S. 306 (1908); White v. United States, 191 U.S.
[99.] In his concurring opinion, Justice
Scalia explained that the Thorpe Court misapplied the Schooner
Peggy decision. See Kaiser, 494 U.S. at 845-48. He also explained
that the Bradley Court amplified the confusion of Thorpe. See
id. at 848-51.
[100.] See Kaiser, 494 U.S. at 858.
[101.] Courts that have applied the
Bradley-Thorpe canon include: F.D.I.C. v. Wright, 942 F.2d 1089
(7th Cir. 1991); United States v. Peppertree Apartments, 942 F.2d 1555 (11th
Cir. 1991); Scarboro v. First American Nat'l Bank of Nashville, 619 F.2d 621
(6th Cir. 1980); Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414
(E.D.N.Y. 1988). Courts that have applied the Bowen canon include:
Wagner Seed Co. v. Bush, 946 F.2d 918 (D.C. Cir. 1991); DeVargas v. Mason &
Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990); Nelson v. Ada, 878 F.2d
277 (9th Cir. 1989) (citing Bruner v. United States, 343 U.S. 112 (1952)). The
Court in Bennett v. New Jersey did not specifically adopt Bowen,
but did refuse to apply the Bradley holding. 470 U.S. 632, 638 (1985).
For other opinions on how to resolve the Bradley-Bowen split, see Riza
De Jesus, Comment, Retroactive Application of the Torture Victim Protection
Act to Redress Philippine Human Rights Violations, 2 PAC. RIM L. &
POL'Y J. 319, 336-38 (1993); Michelle A. Estrin, Note, Retroactive
Application of the Civil Rights Act of 1991 to Pending Cases, 90 MICH. L.
REV. 2035, 2041-42 (1992); Linda Urbanik, Comment, Executive Veto,
Congressional Compromise, and Judicial Confusion: The 1991 Civil Rights
Act--Does It Apply Retroactively?, 24 LOY. U. CHI. L.J. 109, 137-38
[102.] 114 S. Ct. 1483 (1994).
[103.] See George Clemon Freeman,
Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS.
LAW. 663 (1995) and Leonard Charles Presberg, The Civil Rights Act of
1991, Retroactivity, and Continuing Violations: The Effect of Landgraf v.
USI Film Products and Rivers v. Roadway Express, 28 U. RICH. L. REV.
1363 (1994). These articles assume that the Landgraf decision resolved
the conflict between the two canons concerning retroactivity of statutes.
[104.] Barbara Landgraf worked at USI Film
Products. During her employment, a fellow employee subjected Landgraf to
repeated "inappropriate remarks and physical contact." Landgraf, 114 S.
Ct. at 1488. However, her supervisor ignored Landgraf's complaints. Although
the personnel manager initiated remedial action, Landgraf resigned. See
id. Landgraf brought suit on July 21, 1989, after the EEOC determined that
she had been the victim of sexual harassment that created a hostile work
environment. See id. The district court found that there was harassment,
but Landgraf was not constructively discharged. See id. While her case
was pending on appeal, Congress passed the Civil Rights Act of 1991. See
id. This Act significantly expanded the monetary relief available to
plaintiffs who previously would only be entitled to backpay. Under the Act, the
plaintiff could now recover compensatory and punitive damages, in addition to
backpay. See id. at 1488-91. Landgraf argued on appeal that the new
damage and jury trial provisions should apply to her case. See id. at
1488. The Fifth Circuit refused to apply the Act retroactively. Agreeing with
the district court, the Fifth Circuit concluded that "it would be unjust to
apply this kind of additional and unforeseeable obligation to conduct occurring
before the effective date of the Act." Id. at 1439.
[105.] The Court noted that the legislation
previously had been vetoed by the President partly because of unfair
retroactivity rules. See id. at 1492. In 1990, Congress passed a
comprehensive civil rights bill that expressly mandated the application of many
provisions, including sections pertaining to damages in cases of intentional
employment discrimination, to cases arising before the bill's enactment. See
id. Yet, the new act did not expressly provide for retroactive application,
which the Court interpreted as a sign that Congress did not intend to include
retroactivity in the 1991 version. "The absence of comparable language in the
1991 Act cannot realistically be attributed to oversight or to unawareness of
the retroactivity issue." Id. The Court further noted that this was not
dispositive because there was no way to determine exactly where the
congressional compromise between retroactivity and prospectivity occurred.
See id. The Court reasoned that the legislators merely agreed to
disagree on the issue of retroactive application and therefore omitted any
references to it in the 1991 version of the Act. See id. at 1496.
However, Justice Scalia, in his concurring opinion, stated that "[n]o
legislative history can do that, [give a clear congressional statement of
intent] but only the text of the statute itself." Id. at 1522 (Scalia,
[106.] Landgraf argued that the
introductory language from one section of the Act, which states that "[e]xcept
as otherwise specifically provided, this Act and the amendments made by this
Act shall take effect upon enactment" referred to two sections that provide for
prospective relief. See id. at 1493. All other sections then, were to be
applied retroactively. See id. The Court reasoned that Congress most
likely did not write such a detailed introductory statement if it only applied
to two small sections of the Act. See id. at 1494. The Court noted that
Landgraf "places extraordinary weight on two comparatively minor and narrow
provisions in a long and complex statute." Id. at 1493. The Court
decided that the language did not express Congress' true intent concerning
retroactive application of the statute. See id. at 1494. Landgraf's
argument would "require us to assume that Congress chose a surprisingly
indirect route to convey an important and easily expressed message concerning
the Act's effect on pending cases." Id. at 1495. The Court noted that
the legislative history supported its conclusion concerning the plain language
of the Act. See id. Landgraf "gives new insights into how
ambiguities in statutory language are to be resolved and what inferences may or
may not be drawn from statements as to retroactive effect or prospective effect
in other provisions of the act in question." Freeman, supra note 103, at
[107.] The Court acknowledged both the
presumption against statutory retroactivity and the canon that a court should
apply the law in effect at the time it renders its decision, even if the law
was enacted after the events giving rise to the suit occurred. See
Landgraf, 114 S. Ct. at 1501.
[108.] The Court recognized that while they
previously noted an `apparent tension' between the two canons, "[o]ur opinion
in Bowen did not purport to overrule Bradley or to limit its
reach." Id. at 1496-97. The Court explained that in Thorpe, the
new pre-eviction hearing procedures were procedural rules that did not affect
either party's obligations under the lease agreement. See id. at
1502-03. The new procedures were seen as "essential to remove a serious
impediment to the successful protection of constitutional rights.'" Id.
at 1503. Further, the Court noted that Bradley is compatible with other
decisions that disfavor retroactive application of new statutes. See id.
at 1503. When the Bradley majority stated that a court is to apply the
law in effect at the time it renders its decision unless to do so would result
in manifest injustice, it did not overrule the presumption against
retroactivity. See id. The issue in Bradley concerned attorney's
fees, which the Court reasoned are "uniquely separable from the cause of action
to be proved at trial." Id. Because there was no new or unforeseeable
obligation imposed upon the parties, the new attorney's fees could apply.
[109.] Most of the history discussed by the
majority opinion referred to the presumption against retroactive legislation.
"[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our
Republic." Id. at 1497. The presumption against retroactivity ensures
that individuals know what the law is, and that only the law in effect at the
time of the individual's conduct is applied to the case. See id.
According to the Court this is the only way people know the true consequences
of their actions before acting. See id. Justice Stevens continued by
pointing out that the Supreme Court has continually refused to give retroactive
effect to a statute that effects or burdens private rights unless Congress had
expressly required the retroactive application. See id. Stevens
concluded that retroactive application was not mandated because Congress did
not express its intent to apply the legislation retroactively. See id.
at 1499-1500. The Court noted that the presumption against retroactivity is
often applied in those cases that concern contractual or property rights.
However, the presumption is not limited to these cases. See id. at
[110.] The Court mentioned the Ex Post
Facto Clause, Article I, § 10, cl. 1, which directly prohibits
retroactive application of penal legislation. See id. at 1497. This
Clause prevents Congress from enacting vindictive legislation. The Court also
noted the Fifth Amendment's Takings Clause, which prevents the government from
confiscating vested property rights from private persons, except for "public
use" and upon payment of "just compensation." See id. In addition, the
Bills of Attainder, Article 1, §§ 9-10, "prohibit legislatures
from singling out disfavored persons and meting out summary punishment for past
conduct." Id. Finally, the Due Process Clause protects interests in
fair notice that would be compromised by retroactive legislation. See
[111.] Much of the opposition to
retroactively applied legislation stems from the fear of vindictive and
personalized legislation designed to dole out retribution upon specific
individuals or groups. The Court explained that the constitutional provisions
that protect against such vindictive legislation clearly depict the
apprehension against vindictive legislation. See id. at 1497. The Court
continued by mentioning other cases where this apprehension is evident, such as
Richmond v. J.A. Croson Co., 488 U.S. 469, 513-14 (1989) and James v. United
States, 366 U.S. 213, 247 n.3 (1961). See Landgraf, 114 S. Ct. at 1498,
[112.] "Retroactivity provisions often
serve entirely benign and legitimate purposes, whether to respond to
emergencies, to correct mistakes, to prevent circumvention of a new statute in
the interval immediately preceding its passage, or simply to give comprehensive
effect to a new law Congress considers salutary." Id. at 1498.
Therefore, the Court reasoned that a clear expression of Congress' intent is
necessary to determine how a new statute ought to be applied. See id.
See Krent, supra note 29, at 2156 for specific examples of
retroactive enactments upheld by the courts.
[113.] The Court began by mentioning
Justice Story's definition of retroactivity. See supra note 43
and accompanying text. The Landgraf Court explained, "A statute does not
operate retrospectively merely because it is applied in a case arising from
conduct antedating the statute's enactment." Landgraf, 114 S. Ct. at
1499 (citing Republic National Bank of Miami v. United States, 113 S. Ct. 554,
[114.] "`[E]very statute, which takes away
or impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past, must be deemed
retrospective. . . .'" Landgraf, 114 S. Ct. at 1499
(citing Calder v. Bull, 3 Dall. 386 (1798) and Dash v. Van Kleek, 7 Johns. 477
[115.] The Court further explained that the
judgment concerning whether the new provision attaches new legal consequences
must be made by examining the nature and extent of the change in the law, and
the connection between the operation of the new rule and the past events.
See Landgraf, 114 S. Ct. at 1499. However, the Court also noted that
even prospective statutes may "unsettle expectations and impose burdens on past
conduct. . . ." Id. For example, new property taxes or
laws banning gambling may affect the expectations of those who previously
acquired the land, or began to construct a gambling casino. See id. at
[116.] Id. at 1502. The Court
further noted that a rule does not automatically apply to pending cases merely
because it is procedural. The Court provides examples, including new rules of
evidence, that would not require an appellate court to remand for a new trial.
See id. at 1502, n.29. Concerns about retroactivity still apply to
procedural rules. See id. According to Leonard Presberg, this premise
renders the Courts' statement concerning procedural rules of primary conduct
unclear. See Presberg, supra note 103, at 1387. In her article,
Riza De Jesus defines procedural and substantive rules more by their effect
than by their appearance. De Jesus, supra note 101, at 329. Substantive
laws are those that "`introduc[e] a new policy and quite radically chang[e] the
existing law.'" Id. (citing Winfree v. Northern Pac. Ry., 227 U.S. 296,
302 (1913)). A procedural, or non-substantive statute is one that "neither
enlarges nor impairs substantive rights but relates to the means and procedures
for enforcement of those rights." Id. at 330 (citing United States v.
Kairys, 782 F.2d 1374, 1381 (7th Cir. 1986)).
[117.] See Landgraf, 114 S. Ct. at
[118.] The Court explained the importance
of clear congressional intent, a premise that had been reiterated in a long
line of cases. See id. at 1499 n.24. "[O]ur search for clear
congressional intent authorizing retroactivity was consistent with the approach
taken in decisions spanning two centuries." Id. at 1500. A clear
demonstration of congressional intent indicates that Congress considered the
issues surrounding retroactive application of a new statute and has come to a
definitive conclusion concerning the possible unfairness of retroactive
application. See id. Also, such clear intent gives "legislators a
predictable background rule against which to legislate." Id. See
id. at 1505, where the Court explained this part of the Landgraf
test concerning the clear congressional intent. "Landgraf, therefore,
leaves open the question of whether Congress must offer a clear statement as to
a statute's retroactivity or if the Court may find retroactivity using other
methods of statutory interpretation." Presberg, supra note 103, at
[119.] Landgraf, 114 S. Ct. at
[120.] Leonard Charles Presberg interprets
the clear expression of congressional intent requirement as another test, which
he termed the Clear Statement Test. This test involves a court's analysis of
the statute's plain language. Even though it used a Clear Statement Test, the
Court still evaluated the legislative history of the Act. Yet, as Presberg
points out, the Court did not address the issue of deference to the agency's
interpretation of the statute. See Presberg, supra note 103, at
1372-77. In his article, Scott Pearson pointed out the positive and negative
aspects of the Clear Statement Test. Pearson, supra note 32, at 514-18.
On the one hand, the Clear Statement Test leaves little room to question
congressional intent. See id. at 515. Moreover, this test promotes
legislative and judicial efficiency. See id. On the other hand, this
test has been criticized because it requires all of the existing decisions to
be remanded while Congress attempts to reconsider its intent in enacting
numerous pieces of legislation. This is obviously not a realistic possibility.
See id. at 517-18.
[121.] Justice Story's definition of
retroactivity states that "every statute, which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new
duty, or attaches a new disability, in respect to transactions or
considerations already past, must be deemed
retrospective. . . ." Landgraf, 114 S. Ct. at 1499.
See supra note 43 and accompanying text.
[122.] See id. at 1505.
[123.] See id.
[124.] The Court first noted that there was
no express statement of congressional intent in the Act. See id. at
1505. Concerns with retroactive application of the compensatory damage
provisions include the risk of unfair surprise to the defendant. In addition,
one of the purposes of the compensatory damage provision, creating an incentive
for managers to take precautionary measures to prevent a violation of the
employment discrimination statues, would not be served by applying this new Act
to actions already taken. See id. at 1506 n.35. The Court also noted
that the jury trial requirement, a simple procedural change, would apply to
pending cases if the section introducing jury trials did only that. But,
because of the inclusion of compensatory damages in the provisions, they would
not apply to pending cases. See id. at 1505. Justice Blackmun's dissent
pointed out a flaw in the vested rights test used by the majority in concluding
that the compensatory damages provision should not be applied to pending cases.
"`There is no such thing as a vested right to do wrong,'" therefore no
expectations will be unsettled by this new provision. Id. at 1510
(quoting Freeborn v. Smith, 2 Wall. 160, 175 (1865)).
[125.] The Court stated that the
presumption against retroactivity applied here. See Landgraf, 114 S. Ct.
at 1508. Further, the Court concluded that "[b]ecause we have found no clear
evidence of congressional intent that § 102 of the Civil Rights Act
of 1991 should apply to cases arising before its enactment, we conclude that
the judgment of the Court of Appeals must be affirmed." Id.
[126.] See supra notes 69-75,
83-89, 90-94 and accompanying text for explanation of these precedent cases.
For more information on the interpretation of the Court's decision in
Landgraf, see Freeman, supra note 103.
[127.] 927 F. Supp. 394 (D. Idaho 1996).
[128.] See id. at 396 (restating the
[129.] Petitioner argued that the inclusion
in the new Chapter 154, applicable only to capital cases, specifically those
pending at the time of enactment of the Act, demonstrated Congress' intent that
the other sections at issue in this case should only apply prospectively.
See id. at 396. The court found this argument unpersuasive. See
id. Instead, the court looked at the structure of the Act and its
legislative history to determine whether Congress expressed any intentions
concerning the retroactive application of the statute. See id. at
[130.] The court explained that the
structure of the Act was designed to work to achieve Congress's purpose. See
id. at 397. The court provided examples of statutory interaction between
Chapter 154, which specifically applies to pending cases, and the other
provisions of the Act. See id. Further, the amended statutes, as
`remedial' statutes, would apply to pending cases because that is the norm.
See id. at 398. Therefore, the decision to explicitly apply Chapter 154
to pending cases was merely an attempt by Congress to explain that the new
chapter was intended to take effect similarly to the amended provisions. See
id. The court concluded that these "examples of statutory interaction
strongly suggest that Congress meant for the Act to take effect as a whole."
Id. at 397.
[131.] The court cited to congressional
reports in which the representatives portray the provisions as working in
tandem with each other to eliminate habeas abuse. In addition, the report did
not differentiate between Chapter 154 and the other provisions at issue. See
id. at 397.
[132.] The court considers the legislative
history and the structure of the Act as merely providing insight into Congress'
intent rather then being determinative, therefore the court moves onto the
second part of the Landgraf test. See id. at 398.
[133.] See Leavitt v. Arave, 927 F.
Supp. 394, 398-99 (D. Idaho 1996). "[T]he legislative provisions defining the
writ's operation have never guaranteed a fixed statutory framework." Id.
[134.] The court concluded this after
noting that there was no statutory or common law right at stake. See id.
[135.] "The remedial nature of the writ of
habeas corpus is well established. See, e.g., Peyton v. Rowe, 391 U.S.
54, 56 (1968)." Id. at 398.
[136.] See id.
[137.] See id. at 399. See
supra notes 121-24 and accompanying text for the second part of the
[138.] The court cites language from the
Landgraf decision addressing prospective-relief legislation. "[T]he
application of an intervening statute that affects the `propriety of
prospective relief . . . is not retroactive.'" Id. at 398. The court
interpreted this statement to mean that "a party to a pending case has no
vested right in a statutory scheme that defines the scope of the party's
prospective relief or the court's jurisdiction." Id.
Because the court concludes that application of [the Act] to cases pending . .
would not have retroactive effect, and because the purpose, structure, and
legislative history of the Act indicates Congress intended for the new
legislation to govern existing cases, the court will apply the law now in
effect to the petitioner's pending habeas action.
Id. at 399.
[140.] See, e.g., Lennox v. Evans,
87 F.3d 431 (10th Cir. 1996) (holding that because the new amended provision
requires the same showing for a certificate of appealability as for obtaining a
certificate of probable cause, application of the Act would not impair
defendant's rights and may be applied to pending cases).
[141.] 938 F. Supp. 468 (S.D. Ohio
The changes in habeas procedure made by the Act are in no way regulatory of
primary conduct. That is, they in no way impair any primary rights Mr. Zuern
possessed when he killed Philip Pence, increase his liability for that conduct,
or impose new duties on him for that conduct.
Id. at 474. Although petitioner argued that the only consideration was
whether the new legislation affected any acts committed before its enactment,
the court placed more emphasis on the Landgraf distinction between
primary and secondary conduct, concluding that this legislation only affects
secondary conduct and thus applies to pending cases. See id.
[143.] The court decided that the conduct
affected is only secondary and therefore no retroactivity concerns were raised.
[144.] See id. at 474-75. The court
also recognized that "[i]f every time a man relied on existing law in arranging
his affairs, he were made secure against any change in legal rules, the whole
body of our law would be ossified forever." FULLER, supra note 23, at
60, cited in Landgraf v. USI Film Products, 114 S. Ct. 1483, 1499 n.24
[145.] See Zuern, 938 F. Supp. at
[146.] See supra notes 118-19
and accompanying text regarding the first prong of the Landgraf test.
[147.] 926 F. Supp. 1387 (E.D. Ark.
[148.] "[T]he court need not consider what
effect, if any, the amendments to Section 105 might have in this case."
Id. at 1390 n.4.
[149.] "[D]efendant's motion was filed
prior to the enactment of that legislation, and that legislation does not state
that the revisions in section 105 (as opposed to those of section 107) are to
be applied either retroactively or to cases pending at the time of its
enactment." Id. The court then decided that the precedent case, Bailey
v. United States, 116 S. Ct. 501 (1995), affecting the application of the Act,
may be applied to the pending case.
[150.] No. 96 C 828, 1996 WL 252570 (N.D.
Ill. May 10, 1996).
[151.] See supra note 5 and
[152.] See Trevino, No. 96 C 828,
1996 WL 252570, at *3, n.1. Because Congress did not include the same statement
in the amended provisions as it did in the new provision of Chapter 154, the
court inferred that Congress intended the amended provision to apply only
prospectively. See id.
[153.] See supra notes 118-19
and accompanying text.
[154.] See Trevino, 1996 WL 252570,
at *3 n.1.
[155.] "[W]e believe the Act would have a
truly retroactive effect. . . ." Id.
[156.] See supra notes 121-24
and accompanying text.
[157.] See Boria v. Keane, 90 F.3d
36 (2d Cir. 1996) (reasoning that because the new Act, if applied, would
require a different outcome, the application would operate retroactively);
United States v. Gilmore, No. 95 C 1296, 1996 WL 446888 (N.D. Ill. July 25,
1996); United States v. Page, No. 96 C 2339, 1996 WL 467237 (N.D.
Ill. Aug. 13, 1996) (holding that given Congress' silence on this issue, there
was no direct expression of congressional intent to apply the act to pending
[158.] No. 96 C 1274, 1996 WL 400016 (N.D.
Ill. July 15, 1996).
[159.] See id. 1996 WL 400016, at
[160.] "[T]he amendment to § 2254
does not merely change the manner in which a federal court analyzes the habeas
petition. The amendment narrows the standard of review courts can give to
questions of law and fact decided by state courts." Id.
[161.] See supra notes 121-24
and accompanying text.
[162.] See Barnett, 1996 WL 400016,
[163.] See Lindh v. Murphy, 117 S.
Ct. 2059 (1997). The defendant's case was originally decided before the Act
went into effect. See id. His appeal to the Seventh Circuit was pending
when the Act was signed into effect. See id. The Seventh Circuit held
that, in general, the amended provisions did apply to pending cases. See
id. at 2062. Yet, Congress did not express any clear intent as to whether
to apply these provisions to pending cases. Moreover, there would be no
retroactive effect under the Landgraf test if the provisions were to be
applied to pending cases. See id. For more information concerning the
Circuit court case, see Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996).
[164.] See Lindh, 117 S. Ct. at
2062. The court explained the Landgraf test before giving its
[w]hen a case implicates a federal statute enacted after the events in suit,
the court's first task is to determine whether Congress has expressly
prescribed the statute's proper reach. if Congress has done so, of course,
there is no need to resort to judicial default rules. When, however, the new
statute contains no such express command, the court must determine whether the
new statute would have retroactive effect. . . .
Id. at 2062.
[165.] See supra notes 118-19 and
[166.] See Lindh, 117 S. Ct. at
2063. The Supreme Court based its decision on the enactment date for new
Chapter 154, stating that this section "`shall apply to cases pending on or
after the date of enactment of this Act.'" Id. at 2063 (quoting, 110
Stat. 1226). The Court found tht this implicitly meant that the other added
provisions did not apply to pending cases. "We read this provision of
§ 107(c), expressly applying chapter 154 to all cases pending at
enactment, as indicating implictly that the amendments to chapter 153 were
assumed and meant to apply to the general run of habeas cases only when those
cases had been filed after the date of the Act." Id.
[167.] The Supreme Court sides with the
first group in the circuit split. See supra notes 146-55 and
[168.] The Court explained its decision in
plain terms. The amended provisions and the new provisions were added at the
same time, therefore Congress must have understood that only the new provisions
would apply to pending cases, not the amended provisions. See id. at
2065-66. "Both chapters, therefore, had to have been in mind when
§ 107(c) was added." Id. at 2065.
[169.] See id. at 2067-68. "Why did
§ 2264(b) make an express provision for applying it to chapter 154
cases? No answer leaps out at us." Id. at 2068.
[170.] See id. "All we can say is
that in a world of silk purses and pigs' ears, the Act is not a silk purse of
the art of statutory drafting." Id.
[171.] See supra notes 146-55 and
[172.] See supra note 102 and
[173.] See supra notes 127-62 and
[174.] See supra notes 163-71 and
[175.] See supra notes 118-19 and
[176.] See supra note 119 and
[177.] See supra notes 165-67 and
[178.] See supra notes 129-31 and
[179.] See supra note 14 and
[180.] See supra notes 147-49,
153-54 and accompanying text.
[181.] The structure of the Act can also be
evaluated by looking to the general effect of the language of the new Chapter
154. Section 2261(b) of the Act states that Chapter 154 is only applicable if
the state has established a mechanism for the appointment of competent counsel
in the state's post-conviction hearings. See supra note 5 and
accompanying text. This means that the section only applies to those states
that agree to and do create a system for appointment of counsel that conforms
to the Act's standards. By implication, Chapter 154 would seem to apply
prospectively because these adequate systems would not be in existence yet.
Later, when they are in existence, Chapter 154 would apply. Because of this
implication that the new chapter 154 only applies prospectively, Congress had
to include the statement about application to pending cases to combat that
implication and make their intent more clear. At the same time, the amended
provisions did not need a similar statement of application to pending cases.
These sections do not depend upon the creation of a system based on the Act's
standards. There was no implication that the provisions applied prospectively,
after the creation of a specified system. Therefore, there was no inference for
Congress to overcome by including the statement regarding application to
pending cases. Because this could be interpreted as a remedial statute, fixing
existing problems, and not future ones, Congress could have presumed that the
sections would understandably apply to pending cases. In Lindh v.
Murphy, the Supreme Court correctly points out that this ambiguity could
have been solved by a few words on either side of the issue. 117 S. Ct. 2059,
2065 (1997). Neither of the arguments are strong under this theory for
determining whether to apply the Act to pending cases.
[182.] See supra notes 130-31 and
[183.] In order for a habeas petitioner in
a capital case, which was pending on the date the Act was signed into law, to
renew a stay of execution under Chapter 154, the court of appeals must approve
the filing of a second or successive application under amended
§ 2244. Also, another section of Chapter 154 requires the habeas
court to review the merits of the petitioner's claims under the guidelines of
amended § 2254.
[184.] See supra text accompanying
note 182 for an explanation of this statutory interaction. It would have been
much easier for Congress to merely state in the text of the amended sections
that they only apply to the capital cases. However, there is no language to
this effect within the amended sections.
[185.] See Lindh, 117 S. Ct. at
[186.] See id. at 2068.
[187.] See id.
[188.] See supra note 3.
[189.] See supra note 3.
[190.] See supra note 131 and
[191.] In addition, the civil Rights Act of
1991 had similar plain language and more influential legislative history that
included the refusal by the President to sign the Act into law because of
retroactive sections of the Act. See Landgraf v. USI Film products, 114
S. Ct. 1483, 1491-92 (1994). In Landgraf, the court still concluded that
this was not a clear statement of congressional intent. It seems difficult for
that same Supreme Court to now find that the language and less influential
legislative history of the Anti-Terrorism and Effective Death Penalty Act are
conclusive of congressional intent to apply the amended sections only
[192.] See Lindh, 117 S. Ct. at
[193.] In addition to the Supreme Court's
trouble with the Act, the three-way circuit split also indicates that the Act
is too unclear.
[194.] The Landgraf test is used to
determine whether application of an existing statute to a pending case would
have a retroactive effect. However, the first step is merely to follow any
clear directives given by Congress.
[195.] Although Congress may have thought
they were clear when they wrote an effective date for Chapter 154, the problems
that have been caused by the writing in this Act demonstrate that the addition
of the effective date provision made the Act even less understandable.
[196.] See supra note 183 and
[197.] See supra note 195 and
[198.] See supra note 196 and
[199.] See supra notes 121-24 and
[200.] See supra notes 118-19 and
[201.] See supra note 116 and
[202.] See supra note 9 and
[203.] See supra notes 10-11 and
[204.] See supra note 12 and
[205.] See supra notes 52-56 and
[206.] See supra notes 56-62 and
[207.] See supra note 62 and
[208.] See supra notes 127-62 and
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