Monday, May 4, 2015
Watershed doctrine governs the conditions under which a prisoner who has exhausted his appeals is entitled to retrial or even release based on a change in the rules of constitutional criminal procedure. Newly announced due process rules unavailable to him at trial or on direct review can provide a constitutional basis to reopen his guilty verdict or punishment. The Supreme Court, however, has imposed strikingly demanding requirements for backdating any such rule to a finalized conviction or sentence. It has since Teague v. Lane held that no new due process rule applies retroactively unless it is a “watershed” protection that profoundly enhances not only the accuracy of convictions across the board but also “our very understanding of the bedrock procedural elements.”
In the twenty-five years since Teague, the Court has explicitly refused to confer this watershed status on even a single new rule of criminal procedure among the dozens of major protections that it has announced. Unsurprisingly, scholarly consensus casts watershed doctrine as exceptional, obscure, and insignificant.
This Essay breaks new ground in the law of retroactivity. We use the “dynamic concentration” model of game theory to identify the important and unrecognized role that watershed doctrine plays in counteracting the structural undersupply of constitutional due process rules.
Watershed doctrine mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of finalized convictions. By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of state prisoners into the public. This existential threat motivates state courts to venture beyond existing precedents and align the due process practices in their states with the potentially farther-reaching protections the Supreme Court might make retroactive in the future. The watershed doctrine accordingly incentivizes state courts to sustain a constitutional safe harbor for state criminal procedures.
Confirmation of this enforcement theory comes from our comprehensive study of all 338 watershed decisions that state courts have issued over that doctrine’s quarter of a century between 1989 and 2014. We find that a conspicuous proportion of these decisions — more than one in ten — demonstrably inflates the retroactivity rights of criminal defendants and that not one of these cases fails to accord watershed status to a rule that might qualify.