Griffith v. Kentucky

Delivered the opinion of the Court.

These cases, one state and one federal, concern the retrospective application of Batson v. Kentucky, 476 U. S. 79 (1986).

In Batson, 476 U. S., at 96-98, this Court ruled that a defendant in a state criminal trial could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution’s use of peremptory challenges to strike members of the defendant’s race from the jury venire, and that, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges. In the present cases we consider whether that ruling is applicable to litigation pending on direct state or federal review or not yet final when .Batson was decided. We answer that question in the affirmative.

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A. No. 85-5221. Petitioner Randall Lamont Griffith, a black person, was indicted in 1982 in the Circuit Court of Jefferson County, Ky. (the same court where Batson was tried), on charges of first-degree robbery, theft by unlawful taking, and being a persistent felony offender in the second degree. App. 2. On the first day of trial, the prosecution and defense attorneys conducted voir dire examination of the jury venire and exercised their peremptory challenges. The prosecution used four of its five allotted challenges to strike four of the five prospective black jurors. The defense used eight of its allotted nine challenges to strike prospective white jurors. There were two duplicate strikes. The two extra jurors who remained because of the duplicate strikes, one of whom was a black person, then were removed by random draw. Thus, no black person remained on the jury. Id., at 5, 12-13.

Defense counsel expressed concern that Griffith was to be tried by an all-white jury. He asked the court to request the prosecutor to state his reasons for exercising peremptory challenges against the four prospective black jurors. The request was refused. Id., at 13. Counsel then moved for discharge of the panel, alleging that the prosecutor’s use of peremptory challenges to remove all but one of the prospective black jurors constituted a violation of Griffith’s Sixth and Fourteenth Amendment rights. Id., at 15. The court denied the motion. The jury returned a verdict of guilty on the charge of first-degree robbery and fixed petitioner’s punishment at 10 years’ imprisonment. The jury then found petitioner guilty of being a persistent felony offender, and, pursuant to Ky. Rev. Stat. §532.080 (1985), enhanced his sentence to 20 years’ imprisonment.

The Supreme Court of Kentucky, with an unpublished memorandum opinion, affirmed the judgment of conviction. App. 17. The court rejected petitioner’s claim that the prosecutor’s use of peremptory challenges deprived him of guaranteed equal protection. It relied on Swain v. Alabama, 380 U. S. 202 (1965), where this Court ruled that a black defendant did not establish a violation of the Equal Protection Clause solely on proof of the prosecutor’s use of peremptory challenges to strike black jurors at the defendant’s own trial. Id., at 221-222. The Court noted, however, that an inference of purposeful discrimination could be raised where a prosecutor had engaged in a pattern of challenging black jurors in a series of cases. See id., at 223-224. The Kentucky court concluded that Swain disposed of petitioner’s claim and it “decline[d] to go further than the Swain court.” App. 18.

Griffith timely filed here a petition for a writ of certiorari, While his petition was pending, this Court decided Batson v. Kentucky, supra, where it rejected a portion of the reasoning of Swain v. Alabama on which the Kentucky court had relied. 476 U. S., at 89-96. Two months later, in Allen v. Hardy, 478 U. S. 255 (1986) (per curiam), we held that the ruling in Batson was not to be applied retroactively to a case on federal habeas review. We granted certiorari in Griffith’s case, 476 U. S. 1157 (1986), limited to the question whether the ruling in Batson applies retroactively to a state conviction pending on direct review at the time of the Batson decision.

B. No. 85-5731. In 1984, petitioner Willie Davis Brown, a black person, was convicted by a jury in the United States District Court for the Western District of Oklahoma on narcotics charges. During jury selection, two venire panels were assembled. 6 Record 2-10. There were six prospective black jurors in the total venire. Four were excused for cause by the court and the other two were excused by the prosecutor’s use of peremptory challenges. Id., at 20. Defense counsel objected to the prosecutor’s use of peremptory challenges to strike the black persons from the jury, claiming that petitioner was thereby denied a jury representative of the community. Id., at 20-21. No action was taken in response to that objection.

As prospective jurors were being assembled for the second venire panel, the prosecutor called the jury clerk to inquire about the racial composition of the additional venire. At a hearing held later while the jury was deliberating, there was evidence that the prosecutor said to the clerk: “We would like to have as few black jurors as possible.” App. 51. The clerk testified, however, that she remembered the prosecutor’s comment to be: “Don’t get any blacks on this jury.” Id., at 38-39. The clerk went on to say that she did not alter the jury selection in any way in response to the prosecutor’s comment. Id., at 44-45. The District Court concluded that the prosecutor’s contact with the jury clerk “would have to be looked at and dealt with by someone,” id., at 44, inasmuch as it fell “into the category of possible prosecutorial misconduct,” id., at 46, but that it did not affect the integrity of the selection of the jury. Id., at 45. The court therefore concluded that a new trial would not be necessary if the jury convicted petitioner. Id., at 46.

The United States Court of Appeals for the Tenth Circuit affirmed the judgment of conviction. 770 F. 2d 912 (1985). It rejected Brown’s claim that the prosecutor’s use of peremptory challenges to exclude prospective black jurors, combined with his call to the jury clerk, violated petitioner’s right to an impartial jury. The court concluded that Brown had not met Swain’s threshold requirement that petitioner must show a systematic and intentional course of conduct by the prosecutor calculated to exclude black jurors in “case after case.” 770 F. 2d, at 914. It further concluded that the communication by the prosecutor to the jury clerk did not suggest a pattern of systematic exclusion of black jurors. Although the court observed that the prosecutor’s action was “improper” and “must be condemned,” ibid., it concluded, as had the District Court, that the prosecutor’s request had no effect on the selection of Brown’s jury.

Prior to our Batson decision, petitioner timely filed with this Court a petition for a writ of certiorari. We granted certiorari, 476 U. S. 1157 (1986), again limited to the question whether the ruling in Batson applies retroactively to a federal conviction then pending on direct review. The case was set for argument in tandem with Griffith’s case.

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Twenty-one years ago, this Court adopted a three-pronged analysis for claims of retroactivity of new constitutional rules of criminal procedure. See Linkletter v. Walker, 381 U. S. 618 (1965). In Linkletter, the Court held that Map-p v. Ohio, 367 U. S. 643 (1961), which extended the Fourth Amendment exclusionary rule to the States, would not be applied retroactively to a state conviction that had become final before Mapp was decided. The Court explained that “the Constitution neither prohibits nor requires retrospective effect” of a new constitutional rule, and that a determination of retro-activity must depend on “weighting] the merits and demerits in each case.” 381 U. S., at 629. The Court’s decision not to apply Mapp retroactively was based on “the purpose of the Mapp rule; the reliance placed upon the [previous] doctrine; and the effect on the administration of justice of a retrospective application of Mapp” 381 U. S., at 636. See also Stovall v. Denno, 388 U. S. 293, 297 (1967) (retroactivity depends on “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards”).

Shortly after the decision in Linkletter, the Court held that the three-pronged analysis applied both to convictions that were final and to convictions pending on direct review. See Johnson v. New Jersey, 384 U. S. 719, 732 (1966); Stovall v. Denno, 388 U. S., at 300. In the latter case, the Court concluded that, for purposes of applying the three factors of the analysis, “no distinction is justified between convictions now final . . . and convictions at various stages of trial and direct review.” Ibid. Thus, a number of new rules of criminal procedure were held not to apply retroactively either to final cases or to cases pending on direct review. See, e. g., Stovall v. Denno, supra; DeStefano v. Woods, 392 U. S. 631, 635, n. 2 (1968); Desist v. United States, 394 U. S. 244, 253-254 (1969); Daniel v. Louisiana, 420 U. S. 31 (1975) (per curiam).

In United States v. Johnson, 457 U. S. 537 (1982), however, the Court shifted course. In that case, we reviewed at some length the history of the Court’s decisions in the area of retroactivity and concluded, in the words of Justice Harlan: “ ‘ “[RJetroactivity” must be rethought. ’ ” Id., at 548 (quoting Desist v. United States, 394 U. S., at 258 (dissenting opinion)). Specifically, we concluded that the retroactivity analysis for convictions that have become final must be different from the analysis for convictions that are not final at the time the new decision is issued. We observed that, in a number of separate opinions since Linkletter, various Members of the Court “have asserted that, at a minimum, all defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule.” 457 U. S., at 545, and n. 9 (collecting opinions). The rationale for distinguishing between cases that have become final and those that have not, and for applying new rules retroactively to cases in the latter category, was explained at length by Justice Harlan in Desist v. United States, 394 U. S., at 256 (dissenting opinion), and in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgment). In United States v. Johnson, we embraced to a significant extent the comprehensive analysis presented by Justice Harlan in those opinions.

In Justice Harlan’s view, and now in ours, failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudi-| cation. First, it is a settled principle that this Court adjudi-* cates only “cases” and “controversies.” See U. S. Const., Art. III, §2. Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review. Justice Harlan observed:

“If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. ... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States, 401 U. S., at 679 (opinion concurring in judgment).

As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final. Thus, it is the nature of judicial review that precludes us from “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.” Ibid. See United States v. Johnson, 457 U. S., at 546-547, 555.

Second, selective application of new rules violates the principle of treating similarly situated defendants the same. See Desist v. United States, 394 U. S., at 258-259 (Harlan, J., dissenting). As we pointed out in United States v. Johnson, the problem with not applying new rules to cases pending on direct review is “the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary” of a new rule. 457 U. S., at 556, n. 16 (emphasis in original). Although the Court had tolerated this inequity for a time by not applying new rules retroactively to cases on direct review, we noted: “The time for toleration has come to an end.” Ibid.

In United States v. Johnson, our acceptance of Justice Harlan’s views led to the holding that “subject to [certain exceptions], a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” Id., at 562. The exceptions to which we referred related to three categories in which we concluded that existing precedent established threshold tests for the retro-activity analysis. In two of these categories, the new rule already was retroactively applied: (1) when a decision of this Court did nothing more than apply settled precedent to different factual situations, see id., at 549, and (2) when the new ruling was that a trial court lacked authority to convict a criminal defendant in the first place. See id., at 550.

The third category — where a new rule is a “clear break” with past precedent — is the one at issue in these cases. We described it in United States v. Johnson, 457 U. S., at 549-550:

“[WJhere the Court has expressly declared a rule of criminal procedure to be ‘a clear break with the past,’ Desist v. United States, 394 U. S., at 248, it almost invariably has gone on to find such a newly minted principle nonretroactive. See United States v. Peltier, 422 U. S. 531, 547, n. 5 (1975) (Brennan, J., dissenting) (collecting cases). In this . . . type of case, the traits of the particular constitutional rule have been less critical than the Court’s express threshold determination that the ‘“new” constitutional interpretatio[n] ... so change[s] the law that prospectivity is arguably the proper course,’ Williams v. United States, 401 U. S., at 659 (plurality opinion). Once the Court has found that the new rule was unanticipated, the second and third Stovall factors —reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of nonretroactivity. See, e. g., Gosa v. Mayden, 413 U. S., at 672-673, 682-685 (plurality opinion); Michigan v. Payne, 412 U. S., at 55-57.”

Thus, we recognized what may be termed a “clear break exception.” Under this exception, a new constitutional rule was not applied retroactively, even to cases on direct review, if the new rule explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overturned a longstanding practice that lower courts had uniformly approved. Id., at 551. The Fourth Amendment ruling in Payton v. New York, 445 U. S. 573 (1980), with which United States v. Johnson was concerned, was not a clear break in any of these senses, and thus its retroactivity status was not “effectively preordained” by falling within the “clear break” exception. 457 U. S., at 553-554.

In Shea v. Louisiana, 470 U. S. 51 (1985), we applied United States v. Johnson and held that the Fifth Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which prohibited the use, after a suspect had requested counsel, of a confession obtained by police-instigated interrogation without the suspect’s attorney’s being present, was retroactive to cases on direct review when Edwards was decided. Using Johnson’s rationale, we concluded there was nothing about a Fourth Amendment rule that suggested it should be given greater retroactive effect than a Fifth Amendment rule. 470 U. S., at 59. In addition, as in United States v. Johnson, we concluded that the new rule did not fall within the “clear break” exception. The previous Term, in Solem v. Stumes, 465 U. S. 638, 647 (1984), the Court had explicitly recognized that Edwards was “not the sort of ‘clear break’ case that is almost automatically non-retroactive.” Although, in Shea, we expressed some doubt' as to “the merits of a different retroactivity rule for cases” in which a new rule is a clear break with the past, we explained that “we have no need to be concerned with the question here.” 470 U. S., at 59, n. 5.

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The question whether a different retroactivity rule should apply when a new rule is a “clear break” with the past, however, is squarely before us in the present cases. In Allen v. Hardy, 478 U. S. 255 (1986), a case which was here on federal habeas, we said that the rule in Batson “is an explicit and substantial break with prior precedent” because it “overruled [a] portion of Swain.” 478 U. S., at 258. We therefore now reexamine the rationale for maintaining a “clear break” exception to the general proposition that new rules governing criminal procedure should be retroactive to cases pending on direct review. For the same reasons that persuaded us in United States v. Johnson to adopt different conclusions as to convictions on direct review from those that already hadj become final, we conclude that an engrafted exception based| solely upon the particular characteristics of the new rule adopted by the Court is inappropriate.

First, the principle that this Court does not disregard current law, when it adjudicates a case pending before it on direct review, applies regardless of the specific characteristics of the particular new rule announced. The Court recognized in United States v. Johnson that the fact that a new rule is a clear break with the past is relevant primarily because it implicates the second and third Stovall factors of reliance by law enforcement officials and the burden on the administration of justice imposed by retroactive application. But even if these factors may be useful in deciding whether convictions that already have become final should receive the benefit of a new rule, the “clear break” exception, derived from the Stovall factors, reintroduces precisely the type of case-specific analysis that Justice Harlan rejected as inappropriate for cases pending on direct review.

Second, the use of a “clear break” exception creates the same problem of not treating similarly situated defendants the same. James Kirkland Batson, the petitioner in Batson v. Kentucky, and Randall Lamont Griffith, the petitioner in the present Kentucky case, were tried in Jefferson Circuit Court approximately three months apart. The same prosecutor exercised peremptory challenges at the trials. It was solely the fortuities of the judicial process that determined the case this Court chose initially to hear on plenary review. Justice Powell has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’” when “one chance beneficiary — the lucky individual whose case was chosen as the occasion for announcing the new principle — enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U. S. 233, 247 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U. S., at 255 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U. S. 47, 60 (1973) (Marshall, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U. S., at 556, n. 16 (emphasis omitted).

We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. Accordingly, in No. 85-5221, the judgment of the Supreme Court of Kentucky is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. In No. 85-5731, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

In Kentucky, upon the completion of voir dire, the parties simultaneously exercise their respective peremptory challenges. Each side strikes names from the list of jurors who have been qualified and presents the strikes to the court. Ky. Rule Crim. Proc. 9.36(2).

“If the number of prospective jurors remaining on the list [after peremptory challenges] exceeds the number of jurors to be seated, the cards bearing numbers identifying the prospective jurors [are] placed in a box” and the clerk of the court draws at random the number of cards necessary “to reduce the jury to the number required by law.” Ibid.

Before submitting the case to the jury, the trial court granted Griffith’s request for a directed verdict of acquittal on the charge of theft by unlawful taking. See Tr. 204-206.

The number of prospective jurors in the first venire who were excused for cause resulted in a remaining number insufficient to constitute a full petit jury. 6 Record 9-10.

There is some confusion as to the number of prospective black jurors in the total venire. According to a statement in the record, there were six in the two panels. Id., at 20. At oral argument, counsel for petitioner Brown stated that five had been called. Tr. of Oral Arg. 3. There appears to be agreement, however, that two black jurors were excused by the prosecutor’s use of peremptory challenges. See ibid.; 6 Record 20; App. 14.

By “final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. See United States v. Johnson, 457 U. S. 537, 542, n. 8 (1982) (citing Linkletter v. Walker, 381 U. S. 618, 622, n. 5 (1965)).

In United States v. Johnson, the Court held that the Fourth Amendment ruling announced in Payton v. New York, 445 U. S. 573 (1980), prohibiting police from making a warrantless, nonconsensual entry into a suspect’s home for the purpose of making a routine felony arrest, applied retroactively to a case pending on direct appeal.

We noted in Johnson that our review did not address the area of civil retroactivity. See 457 U. S., at 563. That area continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971).

See, among others, Brown v. Louisiana, 447 U. S. 323, 337 (1980) (Powell, J., with whom Stevens, J., joined, concurring in judgment); Harlin v. Missouri, 439 U. S. 459, 460 (1979) (Powell, J., concurring in judgment); Hankerson v. North Carolina, 432 U. S. 233, 245 (1977) (MARSHALL, J., concurring in judgment); id., at 246 (POWELL, J., concurring in judgment).

These two categories, in which new rules are automatically applied retroactively, are not affected in any way by our decision today.

In Solem v. Stumes the Court concluded that the rule announced in Edwards was not retroactive to a conviction that had become final.

Petitioner Griffith argues that the Batson ruling was not a “clear break” with the past because it did not announce a new principle of constitutional law under the Equal Protection Clause. Whatever the merits of that argument might be, it is foreclosed by Allen v. Hardy.

Batson was tried in February 1984. See App. in Batson v. Kentucky, O. T. 1985, No. 84-6263, p. 1. Petitioner Griffith was tried in May of that year. App. in No. 85-5221, p. 1. And, for what it may be worth, petitioner Brown was tried in Oklahoma in June 1984. App. in No. 85-5731, p. 2.