Normative Retroactivity

37 Pages Posted: 27 Mar 2016 Last revised: 3 Aug 2017

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: March 26, 2016


When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule. The current retroactivity doctrine relies on a confusing substance-procedure dichotomy. Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question. Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.

This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity. Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations. Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.

Keywords: retroactivity, teague v. lane, montgomery, welch, procedure, substance, habeas, new constitutional rule, collateral appeal

Suggested Citation

Berry, William W., Normative Retroactivity (March 26, 2016). 19 University of Pennsylvania Journal of Constitutional Law 485 (2016)., Available at SSRN:

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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