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(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MONTGOMERY v. LOUISIANA 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA 

No. 14–280. Argued October 13, 2015—Decided January 25, 2016 

Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. The jury returned a verdict of “guilty without capital punishment,” which carried an automatic sentence of life 

without parole. Nearly 50 years after Montgomery was taken into

custody, this Court decided that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “ ‘cruel and unusual punishments.’ ” Miller v. Alabama, 567 

U. S. ___, ___. Montgomery sought state collateral relief, arguing 

that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which 

had previously held that Miller does not have retroactive effect in 

cases on state collateral review. 

Held: 

1. This Court has jurisdiction to decide whether the Louisiana Supreme Court correctly refused to give retroactive effect to Miller. 

Pp. 5–14.

(a) Teague v. Lane, 489 U. S. 288, a federal habeas case, set forth 

a framework for the retroactive application of a new constitutional 

rule to convictions that were final when the new rule was announced. 

While the Court held that new constitutional rules of criminal procedure are generally not retroactive, it recognized that courts must give 

retroactive effect to new watershed procedural rules and to substantive rules of constitutional law. Substantive constitutional rules include “rules forbidding criminal punishment of certain primary conduct” and “rules prohibiting a certain category of punishment for a 

class of defendants because of their status or offense,” Penry v. 

Lynaugh, 492 U. S. 302, 330. Court-appointed amicus contends that 

because Teague was an interpretation of the federal habeas statute, 
 

 

2 MONTGOMERY v. LOUISIANA 

Syllabus 

not a constitutional command, its retroactivity holding has no application in state collateral review proceedings. However, neither 

Teague nor Danforth v. Minnesota, 552 U. S. 264—which concerned 

only Teague’s general retroactivity bar for new constitutional rules of 

criminal procedure—had occasion to address whether States are required as a constitutional matter to give retroactive effect to new

substantive rules. Pp. 5–8.

(b) When a new substantive rule of constitutional law controls 

the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. This conclusion is 

established by precedents addressing the nature of substantive rules, 

their differences from procedural rules, and their history of retroactive application. As Teague, supra, at 292, 312, and Penry, supra, at 

330, indicate, substantive rules set forth categorical constitutional

guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a 

State enforces a proscription or penalty barred by the Constitution, 

the resulting conviction or sentence is, by definition, unlawful. In 

contrast, where procedural error has infected a trial, a conviction or 

sentence may still be accurate and the defendant’s continued confinement may still be lawful, see Schriro v. Summerlin, 542 U. S. 

348, 352–353; for this reason, a trial conducted under a procedure 

found unconstitutional in a later case does not automatically invalidate a defendant’s conviction or sentence. The same possibility of a

valid result does not exist where a substantive rule has eliminated a 

State’s power to proscribe the defendant’s conduct or impose a given 

punishment. See United States v. United States Coin & Currency, 

401 U. S. 715, 724. By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of recognizing 

that substantive rules must have retroactive effect regardless of 

when the defendant’s conviction became final; for a conviction under 

an unconstitutional law “is not merely erroneous, but is illegal and

void, and cannot be a legal cause of imprisonment,” Ex parte Siebold, 

100 U. S. 371, 376–377. The same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose, 

Penry, supra, at 330. It follows that a court has no authority to leave

in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before

the rule was announced. This Court’s precedents may not directly 

control the question here, but they bear on the necessary analysis, for

a State that may not constitutionally insist that a prisoner remain in 

jail on federal habeas review may not constitutionally insist on the

same result in its own postconviction proceedings. Pp. 8–14. 

2. Miller’s prohibition on mandatory life without parole for juvenile 
 

 

 

 

Cite as: 577 U. S. ____ (2016) 3 

Syllabus 

offenders announced a new substantive rule that, under the Constitution, is retroactive in cases on state collateral review. The “foundation stone” for Miller’s analysis was the line of precedent holding certain punishments disproportionate when applied to juveniles, 567

U. S., at ___, n. 4. Relying on Roper v. Simmons, 543 U. S. 551, and 

Graham v. Florida, 560 U. S. 48, Miller recognized that children differ from adults in their “diminished culpability and greater prospects

for reform,” 567 U. S., at ___, and that these distinctions “diminish 

the penological justifications” for imposing life without parole on juvenile offenders, id., at ___. Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ” id., at 

___, it rendered life without parole an unconstitutional penalty for “a 

class of defendants because of their status”—i.e., juvenile offenders

whose crimes reflect the transient immaturity of youth, Penry, 492 

U. S., at 330. Miller therefore announced a substantive rule of constitutional law, which, like other substantive rules, is retroactive because it “ ‘necessarily carr[ies] a significant risk that a defendant’ ”—

here, the vast majority of juvenile offenders—“ ‘faces a punishment 

that the law cannot impose upon him.’ ” Schriro, supra, at 352. 

A State may remedy a Miller violation by extending parole eligibility to juvenile offenders. This would neither impose an onerous burden on the States nor disturb the finality of state convictions. And it 

would afford someone like Montgomery, who submits that he has 

evolved from a troubled, misguided youth to a model member of the 

prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous 

crimes are capable of change. Pp. 14–21. 

2013–1163 (La. 6/20/14), 141 So. 3d 264, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. 

SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., 

joined. THOMAS, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 


 

Cite as: 577 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 14–280 

HENRY MONTGOMERY, PETITIONER v. LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

LOUISIANA
 

[January 25, 2016]

 JUSTICE KENNEDY delivered the opinion of the Court. 

This is another case in a series of decisions involving the

sentencing of offenders who were juveniles when their 

crimes were committed. In Miller v. Alabama, 567 U. S. 

___ (2012), the Court held that a juvenile convicted of a 

homicide offense could not be sentenced to life in prison 

without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes

of juvenile sentencing. In the wake of Miller, the question

has arisen whether its holding is retroactive to juvenile 

offenders whose convictions and sentences were final 

when Miller was decided. Courts have reached different 

conclusions on this point. Compare, e.g., Martin v. Symmes, 782 F. 3d 939, 943 (CA8 2015); Johnson v. Ponton, 

780 F. 3d 219, 224–226 (CA4 2015); Chambers v. State, 

831 N. W. 2d 311, 331 (Minn. 2013); and State v. Tate, 

2012–2763, p. 17 (La. 11/5/13), 130 So. 3d 829, 841, with 

Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 

655, 661–667, 1 N. E. 3d 270, 278–282 (2013); Aiken v. 

Byars, 410 S. C. 534, 548, 765 S. E. 2d 572, 578 (2014); 

State v. Mares, 2014 WY 126, ¶¶47–63, 335 P. 3d 487, 

504–508; and People v. Davis, 2014 IL 115595, ¶41, 6 
 

 

 

 

2 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

N. E. 3d 709, 722. Certiorari was granted in this case to 

resolve the question. 

I 

Petitioner is Henry Montgomery. In 1963, Montgomery 

killed Charles Hurt, a deputy sheriff in East Baton Rouge, 

Louisiana. Montgomery was 17 years old at the time of 

the crime. He was convicted of murder and sentenced to 

death, but the Louisiana Supreme Court reversed his

conviction after finding that public prejudice had prevented a fair trial. State v. Montgomery, 181 So. 2d 756, 

762 (La. 1966).

Montgomery was retried. The jury returned a verdict of

“guilty without capital punishment.” State v. Montgomery, 

242 So. 2d 818 (La. 1970). Under Louisiana law, this 

verdict required the trial court to impose a sentence of life 

without parole. The sentence was automatic upon the 

jury’s verdict, so Montgomery had no opportunity to present mitigation evidence to justify a less severe sentence.

That evidence might have included Montgomery’s young 

age at the time of the crime; expert testimony regarding

his limited capacity for foresight, self-discipline, and

judgment; and his potential for rehabilitation. Montgomery, now 69 years old, has spent almost his entire life in 

prison.

Almost 50 years after Montgomery was first taken into

custody, this Court decided Miller v. Alabama, 567 U. S. 

___. Miller held that mandatory life without parole for

juvenile homicide offenders violates the Eighth Amendment’s prohibition on “‘cruel and unusual punishments.’” 

Id., at ___ (slip op., at 2). “By making youth (and all that 

accompanies it) irrelevant to imposition of that harshest 

prison sentence,” mandatory life without parole “poses too 

great a risk of disproportionate punishment.” Id., at ___ 

(slip op., at 17). Miller required that sentencing courts

consider a child’s “diminished culpability and heightened 
 

Cite as: 577 U. S. ____ (2016) 3 

Opinion of the Court 

capacity for change” before condemning him or her to die

in prison. Ibid. Although Miller did not foreclose a sentencer’s ability to impose life without parole on a juvenile, 

the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those

whose crimes reflect “‘irreparable corruption.’” Ibid. 

(quoting Roper v. Simmons, 543 U. S. 551, 573 (2005)).

After this Court issued its decision in Miller, Montgomery sought collateral review of his mandatory life-withoutparole sentence. In Louisiana there are two principal 

mechanisms for collateral challenge to the lawfulness of 

imprisonment. Each begins with a filing in the trial court 

where the prisoner was convicted and sentenced. La. Code 

Crim. Proc. Ann., Arts. 882, 926 (West 2008). The first 

procedure permits a prisoner to file an application for 

postconviction relief on one or more of seven grounds set 

forth in the statute. Art. 930.3. The Louisiana Supreme 

Court has held that none of those grounds provides a basis

for collateral review of sentencing errors. See State ex rel. 

Melinie v. State, 93–1380 (La. 1/12/96), 665 So. 2d 1172 

(per curiam). Sentencing errors must instead be raised

through Louisiana’s second collateral review procedure. 

This second mechanism allows a prisoner to bring a 

collateral attack on his or her sentence by filing a motion 

to correct an illegal sentence. See Art. 882. Montgomery

invoked this procedure in the East Baton Rouge Parish 

District Court. 

The state statute provides that “[a]n illegal sentence

may be corrected at any time by the court that imposed

the sentence.” Ibid. An illegal sentence “is primarily 

restricted to those instances in which the term of the 

prisoner’s sentence is not authorized by the statute or

statutes which govern the penalty” for the crime of conviction. State v. Mead, 2014–1051, p. 3 (La. App. 4 Cir.

4/22/15), 165 So. 3d 1044, 1047; see also State v. Alexander, 2014–0401 (La. 11/7/14), 152 So. 3d 137 (per curiam). 
 

 

 

4 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

In the ordinary course Louisiana courts will not consider a

challenge to a disproportionate sentence on collateral

review; rather, as a general matter, it appears that prisoners must raise Eighth Amendment sentencing challenges on direct review. See State v. Gibbs, 620 So. 2d 296, 

296–297 (La. App. 1993); Mead, 165 So. 3d, at 1047. 

 Louisiana’s collateral review courts will, however, consider a motion to correct an illegal sentence based on a

decision of this Court holding that the Eighth Amendment 

to the Federal Constitution prohibits a punishment for a 

type of crime or a class of offenders. When, for example,

this Court held in Graham v. Florida, 560 U. S. 48 (2010), 

that the Eighth Amendment bars life-without-parole 

sentences for juvenile nonhomicide offenders, Louisiana 

courts heard Graham claims brought by prisoners whose

sentences had long been final. See, e.g., State v. Shaffer, 

2011–1756, pp. 1–4 (La. 11/23/11), 77 So. 3d 939, 940–942

(per curiam) (considering motion to correct an illegal

sentence on the ground that Graham rendered illegal a

life-without-parole sentence for a juvenile nonhomicide 

offender). Montgomery’s motion argued that Miller rendered his mandatory life-without-parole sentence illegal.

The trial court denied Montgomery’s motion on the

ground that Miller is not retroactive on collateral review. 

Montgomery then filed an application for a supervisory 

writ. The Louisiana Supreme Court denied the application. 2013–1163 (6/20/14), 141 So. 3d 264. The court 

relied on its earlier decision in State v. Tate, 2012–2763, 

130 So. 3d 829, which held that Miller does not have retroactive effect in cases on state collateral review. Chief 

Justice Johnson and Justice Hughes dissented in Tate, 

and Chief Justice Johnson again noted her dissent in

Montgomery’s case.

This Court granted Montgomery’s petition for certiorari.

The petition presented the question “whether Miller 

adopts a new substantive rule that applies retroactively on 
Cite as: 577 U. S. ____ (2016) 5 

Opinion of the Court 

collateral review to people condemned as juveniles to die 

in prison.” Pet. for Cert. i. In addition, the Court directed 

the parties to address the following question: “Do we have 

jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this

case to our decision in Miller?” 575 U. S. ___ (2015). 

II 

The parties agree that the Court has jurisdiction to

decide this case. To ensure this conclusion is correct, the 

Court appointed Richard D. Bernstein as amicus curiae to 

brief and argue the position that the Court lacks jurisdiction. He has ably discharged his assigned responsibilities. 

Amicus argues that a State is under no obligation to

give a new rule of constitutional law retroactive effect in 

its own collateral review proceedings. As those proceedings are created by state law and under the State’s plenary 

control, amicus contends, it is for state courts to define 

applicable principles of retroactivity. Under this view, the 

Louisiana Supreme Court’s decision does not implicate a

federal right; it only determines the scope of relief available in a particular type of state proceeding—a question of

state law beyond this Court’s power to review.

If, however, the Constitution establishes a rule and 

requires that the rule have retroactive application, then a

state court’s refusal to give the rule retroactive effect is 

reviewable by this Court. Cf. Griffith v. Kentucky, 479 

U. S. 314, 328 (1987) (holding that on direct review, a new

constitutional rule must be applied retroactively “to all

cases, state or federal”). States may not disregard a controlling, constitutional command in their own courts. See 

Martin v. Hunter’s Lessee, 1 Wheat. 304, 340–341, 344 

(1816); see also Yates v. Aiken, 484 U. S. 211, 218 (1988) 

(when a State has not “placed any limit on the issues that 

it will entertain in collateral proceedings . . . it has a duty 

to grant the relief that federal law requires”). Amicus’ 
 

 

 

6 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

argument therefore hinges on the premise that this

Court’s retroactivity precedents are not a constitutional 

mandate. 

Justice O’Connor’s plurality opinion in Teague v. Lane, 

489 U. S. 288 (1989), set forth a framework for retroactivity in cases on federal collateral review. Under Teague, a 

new constitutional rule of criminal procedure does not 

apply, as a general matter, to convictions that were final 

when the new rule was announced. Teague recognized,

however, two categories of rules that are not subject to its 

general retroactivity bar. First, courts must give retroactive effect to new substantive rules of constitutional law. 

Substantive rules include “rules forbidding criminal punishment of certain primary conduct,” as well as “rules

prohibiting a certain category of punishment for a class of

defendants because of their status or offense.” Penry v. 

Lynaugh, 492 U. S. 302, 330 (1989); see also Teague, supra, at 307. Although Teague describes new substantive 

rules as an exception to the bar on retroactive application 

of procedural rules, this Court has recognized that substantive rules “are more accurately characterized as . . .

not subject to the bar.” Schriro v. Summerlin, 542 U. S. 

348, 352, n. 4 (2004). Second, courts must give retroactive

effect to new “‘“watershed rules of criminal procedure”

implicating the fundamental fairness and accuracy of the

criminal proceeding.’” Id., at 352; see also Teague, 489 

U. S., at 312–313. 

It is undisputed, then, that Teague requires the retroactive application of new substantive and watershed procedural rules in federal habeas proceedings. Amicus, however, contends that Teague was an interpretation of the

federal habeas statute, not a constitutional command; and 

so, the argument proceeds, Teague’s retroactivity holding

simply has no application in a State’s own collateral review proceedings.

To support this claim, amicus points to language in 
 

 

 

Cite as: 577 U. S. ____ (2016) 7 

Opinion of the Court 

Teague that characterized the Court’s task as “‘defin[ing]

the scope of the writ.’” Id., at 308 (quoting Kuhlmann v. 

Wilson, 477 U. S. 436, 447 (1986) (plurality opinion)); see 

also 489 U. S., at 317 (White, J., concurring in part and 

concurring in judgment) (“If we are wrong in construing 

the reach of the habeas corpus statutes, Congress can of

course correct us . . . ”); id., at 332 (Brennan, J., dissenting) (“No new facts or arguments have come to light suggesting that our [past] reading of the federal habeas statute . . . was plainly mistaken”).

 In addition, amicus directs us to Danforth v. Minnesota, 

552 U. S. 264 (2008), in which a majority of the Court held

that Teague does not preclude state courts from giving

retroactive effect to a broader set of new constitutional 

rules than Teague itself required. 552 U. S., at 266. The 

Danforth majority concluded that Teague’s general rule of 

nonretroactivity for new constitutional rules of criminal 

procedure “was an exercise of this Court’s power to interpret the federal habeas statute.” 552 U. S., at 278. Since 

Teague’s retroactivity bar “limit[s] only the scope of federal 

habeas relief,” the Danforth majority reasoned, States are

free to make new procedural rules retroactive on state 

collateral review. 552 U. S., at 281–282. 

Amicus, however, reads too much into these statements. 

Neither Teague nor Danforth had reason to address 

whether States are required as a constitutional matter to 

give retroactive effect to new substantive or watershed 

procedural rules. Teague originated in a federal, not state,

habeas proceeding; so it had no particular reason to discuss whether any part of its holding was required by the 

Constitution in addition to the federal habeas statute. 

And Danforth held only that Teague’s general rule of

nonretroactivity was an interpretation of the federal habeas statute and does not prevent States from providing 

greater relief in their own collateral review courts. The 

Danforth majority limited its analysis to Teague’s general 
 

 

 

 

8 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

retroactivity bar, leaving open the question whether 

Teague’s two exceptions are binding on the States as a 

matter of constitutional law. 552 U. S., at 278; see also 

id., at 277 (“[T]he case before us now does not involve 

either of the ‘Teague exceptions’”). 

In this case, the Court must address part of the question 

left open in Danforth. The Court now holds that when a 

new substantive rule of constitutional law controls the 

outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. 

Teague’s conclusion establishing the retroactivity of new 

substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like 

all federal law, binding on state courts. This holding is

limited to Teague’s first exception for substantive rules; 

the constitutional status of Teague’s exception for watershed rules of procedure need not be addressed here. 

This Court’s precedents addressing the nature of substantive rules, their differences from procedural rules, and 

their history of retroactive application establish that the

Constitution requires substantive rules to have retroactive

effect regardless of when a conviction became final. 

The category of substantive rules discussed in Teague

originated in Justice Harlan’s approach to retroactivity. 

Teague adopted that reasoning. See 489 U. S., at 292, 312 

(discussing Mackey v. United States, 401 U. S. 667, 692 

(1971) (opinion concurring in judgments in part and dissenting in part); and Desist v. United States, 394 U. S. 244, 

261, n. 2 (1969) (Harlan, J., dissenting)). Justice Harlan 

defined substantive constitutional rules as “those that 

place, as a matter of constitutional interpretation, certain 

kinds of primary, private individual conduct beyond the 

power of the criminal law-making authority to proscribe.” 

Mackey, supra, at 692. In Penry v. Lynaugh, decided four 

months after Teague, the Court recognized that “the first 

exception set forth in Teague should be understood to 
 

 

Cite as: 577 U. S. ____ (2016) 9 

Opinion of the Court 

cover not only rules forbidding criminal punishment of 

certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants 

because of their status or offense.” 492 U. S., at 330. 

Penry explained that Justice Harlan’s first exception 

spoke “in terms of substantive categorical guarantees

accorded by the Constitution, regardless of the procedures

followed.” Id., at 329. Whether a new rule bars States 

from proscribing certain conduct or from inflicting a certain punishment, “[i]n both cases, the Constitution itself

deprives the State of the power to impose a certain penalty.” Id., at 330. 

Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and 

punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription 

or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural 

rules, in contrast, are designed to enhance the accuracy of 

a conviction or sentence by regulating “the manner of 

determining the defendant’s culpability.” Schriro, 542 

U. S., at 353; Teague, supra, at 313. Those rules “merely 

raise the possibility that someone convicted with use of 

the invalidated procedure might have been acquitted

otherwise.” Schriro, supra, at 352. Even where procedural error has infected a trial, the resulting conviction or

sentence may still be accurate; and, by extension, the

defendant’s continued confinement may still be lawful.

For this reason, a trial conducted under a procedure found 

to be unconstitutional in a later case does not, as a general 

matter, have the automatic consequence of invalidating a

defendant’s conviction or sentence. 

The same possibility of a valid result does not exist 

where a substantive rule has eliminated a State’s power to

proscribe the defendant’s conduct or impose a given punishment. “[E]ven the use of impeccable factfinding proce­
 

10 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

dures could not legitimate a verdict” where “the conduct

being penalized is constitutionally immune from punishment.” United States v. United States Coin & Currency, 

401 U. S. 715, 724 (1971). Nor could the use of flawless 

sentencing procedures legitimate a punishment where the 

Constitution immunizes the defendant from the sentence 

imposed. “No circumstances call more for the invocation of 

a rule of complete retroactivity.” Ibid. 

By holding that new substantive rules are, indeed, 

retroactive, Teague continued a long tradition of giving 

retroactive effect to constitutional rights that go beyond 

procedural guarantees. See Mackey, supra, at 692–693 

(opinion of Harlan, J.) (“[T]he writ has historically been 

available for attacking convictions on [substantive]

grounds”). Before Brown v. Allen, 344 U. S. 443 (1953), 

“federal courts would never consider the merits of a constitutional claim if the habeas petitioner had a fair opportunity to raise his arguments in the original proceeding.” 

Desist, 394 U. S., at 261 (Harlan, J., dissenting). Even in 

the pre-1953 era of restricted federal habeas, however, an

exception was made “when the habeas petitioner attacked

the constitutionality of the state statute under which he

had been convicted. Since, in this situation, the State had 

no power to proscribe the conduct for which the petitioner

was imprisoned, it could not constitutionally insist that he

remain in jail.” Id., at 261, n. 2 (Harlan, J., dissenting) 

(citation omitted).

In Ex parte Siebold, 100 U. S. 371 (1880), the Court 

addressed why substantive rules must have retroactive 

effect regardless of when the defendant’s conviction became final. At the time of that decision, “[m]ere error in

the judgment or proceedings, under and by virtue of which

a party is imprisoned, constitute[d] no ground for the issue 

of the writ.” Id., at 375. Before Siebold, the law might 

have been thought to establish that so long as the conviction and sentence were imposed by a court of competent 
Cite as: 577 U. S. ____ (2016) 11 

Opinion of the Court 

jurisdiction, no habeas relief could issue. In Siebold, 

however, the petitioners attacked the judgments on the 

ground that they had been convicted under unconstitutional statutes. The Court explained that if “this position 

is well taken, it affects the foundation of the whole proceedings.” Id., at 376. A conviction under an unconstitutional law 

“is not merely erroneous, but is illegal and void, and

cannot be a legal cause of imprisonment. It is true, if 

no writ of error lies, the judgment may be final, in the 

sense that there may be no means of reversing it. But 

. . . if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.” Id., 

at 376–377. 

As discussed, the Court has concluded that the same logic 

governs a challenge to a punishment that the Constitution 

deprives States of authority to impose. Penry, supra, at 

330; see also Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 

151 (1970) (“Broadly speaking, the original sphere for 

collateral attack on a conviction was where the tribunal 

lacked jurisdiction either in the usual sense or because the

statute under which the defendant had been prosecuted

was unconstitutional or because the sentence was one the 

court could not lawfully impose” (footnotes omitted)). A 

conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a 

result, void. See Siebold, 100 U. S., at 376. It follows, as a 

general principle, that a court has no authority to leave in

place a conviction or sentence that violates a substantive 

rule, regardless of whether the conviction or sentence 

became final before the rule was announced. 

Siebold and the other cases discussed in this opinion, of 

course, do not directly control the question the Court now 

answers for the first time. These precedents did not in­
 

12 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

volve a state court’s postconviction review of a conviction 

or sentence and so did not address whether the Constitution requires new substantive rules to have retroactive 

effect in cases on state collateral review. These decisions, 

however, have important bearing on the analysis necessary in this case.

In support of its holding that a conviction obtained

under an unconstitutional law warrants habeas relief, the 

Siebold Court explained that “[a]n unconstitutional law is 

void, and is as no law.” Ibid. A penalty imposed pursuant

to an unconstitutional law is no less void because the 

prisoner’s sentence became final before the law was held 

unconstitutional. There is no grandfather clause that 

permits States to enforce punishments the Constitution

forbids. To conclude otherwise would undercut the Constitution’s substantive guarantees. Writing for the Court in 

United States Coin & Currency, Justice Harlan made this 

point when he declared that “[n]o circumstances call more 

for the invocation of a rule of complete retroactivity” than

when “the conduct being penalized is constitutionally

immune from punishment.” 401 U. S., at 724. United 

States Coin & Currency involved a case on direct review; 

yet, for the reasons explained in this opinion, the same

principle should govern the application of substantive

rules on collateral review. As Justice Harlan explained,

where a State lacked the power to proscribe the habeas 

petitioner’s conduct, “it could not constitutionally insist

that he remain in jail.” Desist, supra, at 261, n. 2 (dissenting opinion). 

If a State may not constitutionally insist that a prisoner 

remain in jail on federal habeas review, it may not constitutionally insist on the same result in its own postconviction proceedings. Under the Supremacy Clause of the 

Constitution, state collateral review courts have no greater 

power than federal habeas courts to mandate that a

prisoner continue to suffer punishment barred by the 
Cite as: 577 U. S. ____ (2016) 13 

Opinion of the Court 

Constitution. If a state collateral proceeding is open to a 

claim controlled by federal law, the state court “has a duty

to grant the relief that federal law requires.” Yates, 484 

U. S., at 218. Where state collateral review proceedings

permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to 

a substantive constitutional right that determines the

outcome of that challenge. 

As a final point, it must be noted that the retroactive

application of substantive rules does not implicate a 

State’s weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of “continually forc[ing] the States to marshal 

resources in order to keep in prison defendants whose

trials and appeals conformed to then-existing constitutional standards.” 489 U. S., at 310. This concern has no 

application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction

or sentence that the Constitution deprives the State of 

power to impose. See Mackey, 401 U. S., at 693 (opinion of 

Harlan, J.) (“There is little societal interest in permitting

the criminal process to rest at a point where it ought 

properly never to repose”).

In adjudicating claims under its collateral review procedures a State may not deny a controlling right asserted 

under the Constitution, assuming the claim is properly

presented in the case. Louisiana follows these basic Supremacy Clause principles in its postconviction proceedings for challenging the legality of a sentence. The State’s 

collateral review procedures are open to claims that a

decision of this Court has rendered certain sentences 

illegal, as a substantive matter, under the Eighth

Amendment. See, e.g., State v. Dyer, 2011–1758, pp. 1–2 

(La. 11/23/11), 77 So. 3d 928, 928–929 (per curiam) (considering claim on collateral review that this Court’s decision in Graham v. Florida, 560 U. S. 48, rendered peti­
 

14 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

tioner’s life-without-parole sentence illegal). Montgomery

alleges that Miller announced a substantive constitutional 

rule and that the Louisiana Supreme Court erred by

failing to recognize its retroactive effect. This Court has 

jurisdiction to review that determination. 

III 

This leads to the question whether Miller’s prohibition

on mandatory life without parole for juvenile offenders

indeed did announce a new substantive rule that, under 

the Constitution, must be retroactive. 

As stated above, a procedural rule “regulate[s] only the 

manner of determining the defendant’s culpability.” 

Schriro, 542 U. S., at 353. A substantive rule, in contrast, 

forbids “criminal punishment of certain primary conduct”

or prohibits “a certain category of punishment for a class 

of defendants because of their status or offense.” Penry, 

492 U. S., at 330; see also Schriro, supra, at 353 (A substantive rule “alters the range of conduct or the class of 

persons that the law punishes”). Under this standard, and 

for the reasons explained below, Miller announced a substantive rule that is retroactive in cases on collateral 

review. 

The “foundation stone” for Miller’s analysis was this

Court’s line of precedent holding certain punishments 

disproportionate when applied to juveniles. 567 U. S., at 

___, n. 4 (slip op., at 8, n. 4). Those cases include Graham 

v. Florida, supra, which held that the Eighth Amendment 

bars life without parole for juvenile nonhomicide offenders, and Roper v. Simmons, 543 U. S. 551, which held that 

the Eighth Amendment prohibits capital punishment for 

those under the age of 18 at the time of their crimes. 

Protection against disproportionate punishment is the

central substantive guarantee of the Eighth Amendment 

and goes far beyond the manner of determining a defendant’s sentence. See Graham, supra, at 59 (“The concept of 
 

 

Cite as: 577 U. S. ____ (2016) 15 

Opinion of the Court 

proportionality is central to the Eighth Amendment”);

see also Weems v. United States, 217 U. S. 349, 367 

(1910); Harmelin v. Michigan, 501 U. S. 957, 997–998 

(1991) (KENNEDY, J., concurring in part and concurring in 

judgment). 

Miller took as its starting premise the principle established in Roper and Graham that “children are constitutionally different from adults for purposes of sentencing.”

567 U. S., at ___ (slip op., at 8) (citing Roper, supra, at 

569–570; and Graham, supra, at 68). These differences 

result from children’s “diminished culpability and greater 

prospects for reform,” and are apparent in three primary 

ways: 

“First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking. Second, children ‘are more vulnerable to negative

influences and outside pressures,’ including from their

family and peers; they have limited ‘control over their 

own environment’ and lack the ability to extricate

themselves from horrific, crime-producing settings.

And third, a child’s character is not as ‘well formed’ as 

an adult’s; his traits are ‘less fixed’ and his actions 

less likely to be ‘evidence of irretrievable depravity.’” 

567 U. S., at ___ (slip op., at 8) (quoting Roper, supra, 

at 569–570; alterations, citations, and some internal 

quotation marks omitted). 

As a corollary to a child’s lesser culpability, Miller recognized that “the distinctive attributes of youth diminish 

the penological justifications” for imposing life without

parole on juvenile offenders. 567 U. S., at ___ (slip op., at 

9). Because retribution “relates to an offender’s blameworthiness, the case for retribution is not as strong with a 

minor as with an adult.” Ibid. (quoting Graham, supra, at 

71; internal quotation marks omitted). The deterrence 
 

 

16 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

rationale likewise does not suffice, since “the same characteristics that render juveniles less culpable than adults—

their immaturity, recklessness, and impetuosity—make

them less likely to consider potential punishment.” 567 

U. S., at ___–___ (slip op., at 9–10) (internal quotation 

marks omitted). The need for incapacitation is lessened,

too, because ordinary adolescent development diminishes 

the likelihood that a juvenile offender “‘forever will be a 

danger to society.’” Id., at ___ (slip op., at 10) (quoting 

Graham, 560 U. S., at 72). Rehabilitation is not a satisfactory rationale, either. Rehabilitation cannot justify the 

sentence, as life without parole “forswears altogether the 

rehabilitative ideal.” 567 U. S., at ___ (slip op., at 10) 

(quoting Graham, supra, at 74).

These considerations underlay the Court’s holding in 

Miller that mandatory life-without-parole sentences for 

children “pos[e] too great a risk of disproportionate punishment.” 567 U. S., at ___ (slip op., at 17). Miller requires that before sentencing a juvenile to life without 

parole, the sentencing judge take into account “how children are different, and how those differences counsel 

against irrevocably sentencing them to a lifetime in prison.” 

Ibid. The Court recognized that a sentencer might

encounter the rare juvenile offender who exhibits such 

irretrievable depravity that rehabilitation is impossible 

and life without parole is justified. But in light of “children’s diminished culpability and heightened capacity for 

change,” Miller made clear that “appropriate occasions for

sentencing juveniles to this harshest possible penalty will 

be uncommon.” Ibid.

 Miller, then, did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications

for life without parole collapse in light of “the distinctive

attributes of youth.” Id., at ___ (slip op., at 9). Even if a 

court considers a child’s age before sentencing him or her 
 

Cite as: 577 U. S. ____ (2016) 17 

Opinion of the Court 

to a lifetime in prison, that sentence still violates the 

Eighth Amendment for a child whose crime reflects “‘unfortunate yet transient immaturity.’” Id., at ___ (slip op., 

at 17) (quoting Roper, 543 U. S., at 573). Because Miller 

determined that sentencing a child to life without parole is 

excessive for all but “‘the rare juvenile offender whose 

crime reflects irreparable corruption,’” 567 U. S., at ___ 

(slip op., at 17) (quoting Roper, supra, at 573), it rendered

life without parole an unconstitutional penalty for “a class

of defendants because of their status”—that is, juvenile 

offenders whose crimes reflect the transient immaturity of 

youth. Penry, 492 U. S., at 330. As a result, Miller announced a substantive rule of constitutional law. Like 

other substantive rules, Miller is retroactive because it 

“‘necessarily carr[ies] a significant risk that a defendant’”—here, the vast majority of juvenile offenders—

“‘faces a punishment that the law cannot impose upon 

him.’” Schriro, 542 U. S., at 352 (quoting Bousley v. United 

States, 523 U. S. 614, 620 (1998)). 

Louisiana nonetheless argues that Miller is procedural

because it did not place any punishment beyond the 

State’s power to impose; it instead required sentencing 

courts to take children’s age into account before condemning them to die in prison. In support of this argument, 

Louisiana points to Miller’s statement that the decision 

“does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or 

Graham. Instead, it mandates only that a sentencer 

follow a certain process—considering an offender’s youth

and attendant characteristics—before imposing a particular penalty.” Miller, supra, at ___ (slip op., at 20). Miller, 

it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar 

life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent 

incorrigibility. For that reason, Miller is no less substan­
 

 

18 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

tive than are Roper and Graham. Before Miller, every

juvenile convicted of a homicide offense could be sentenced 

to life without parole. After Miller, it will be the rare 

juvenile offender who can receive that same sentence. The 

only difference between Roper and Graham, on the one 

hand, and Miller, on the other hand, is that Miller drew a 

line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect 

irreparable corruption. The fact that life without parole

could be a proportionate sentence for the latter kind of

juvenile offender does not mean that all other children 

imprisoned under a disproportionate sentence have not

suffered the deprivation of a substantive right. 

To be sure, Miller’s holding has a procedural component. 

Miller requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before determining that life without parole is a proportionate sentence. 

See 567 U. S., at ___ (slip op., at 20). Louisiana contends 

that because Miller requires this process, it must have set 

forth a procedural rule. This argument, however, conflates a procedural requirement necessary to implement a

substantive guarantee with a rule that “regulate[s] only 

the manner of determining the defendant’s culpability.” 

Schriro, supra, at 353. There are instances in which a 

substantive change in the law must be attended by a 

procedure that enables a prisoner to show that he falls 

within the category of persons whom the law may no

longer punish. See Mackey, 401 U. S., at 692, n. 7 (opinion

of Harlan, J.) (“Some rules may have both procedural and 

substantive ramifications, as I have used those terms 

here”). For example, when an element of a criminal offense is deemed unconstitutional, a prisoner convicted 

under that offense receives a new trial where the government must prove the prisoner’s conduct still fits within the 

modified definition of the crime. In a similar vein, when 

the Constitution prohibits a particular form of punishment 
Cite as: 577 U. S. ____ (2016) 19 

Opinion of the Court 

for a class of persons, an affected prisoner receives a procedure through which he can show that he belongs to the 

protected class. See, e.g., Atkins v. Virginia, 536 U. S. 304, 

317 (2002) (requiring a procedure to determine whether a

particular individual with an intellectual disability “fall[s] 

within the range of [intellectually disabled] offenders

about whom there is a national consensus” that execution 

is impermissible). Those procedural requirements do not,

of course, transform substantive rules into procedural 

ones.

 The procedure Miller prescribes is no different. A hearing where “youth and its attendant characteristics” are 

considered as sentencing factors is necessary to separate 

those juveniles who may be sentenced to life without 

parole from those who may not. 567 U. S., at ___ (slip op., 

at 1). The hearing does not replace but rather gives effect 

to Miller’s substantive holding that life without parole is

an excessive sentence for children whose crimes reflect 

transient immaturity.

 Louisiana suggests that Miller cannot have made a 

constitutional distinction between children whose crimes 

reflect transient immaturity and those whose crimes 

reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a 

child’s incorrigibility. That this finding is not required, 

however, speaks only to the degree of procedure Miller 

mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is 

established, this Court is careful to limit the scope of any 

attendant procedural requirement to avoid intruding more

than necessary upon the States’ sovereign administration

of their criminal justice systems. See Ford v. Wainwright, 

477 U. S. 399, 416–417 (1986) (“[W]e leave to the State[s] 

the task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of sentences”). Fidelity to this important principle of federalism, 
 

20 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

however, should not be construed to demean the substantive character of the federal right at issue. That Miller did 

not impose a formal factfinding requirement does not 

leave States free to sentence a child whose crime reflects 

transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.

For this reason, the death penalty cases Louisiana cites

in support of its position are inapposite. See, e.g., Beard v. 

Banks, 542 U. S. 406, 408 (2004) (holding nonretroactive 

the rule that forbids instructing a jury to disregard mitigating factors not found by a unanimous vote); O’Dell v. 

Netherland, 521 U. S. 151, 153 (1997) (holding nonretroactive the rule providing that, if the prosecutor cites future

dangerousness, the defendant may inform the jury of his

ineligibility for parole); Sawyer v. Smith, 497 U. S. 227, 

229 (1990) (holding nonretroactive the rule that forbids

suggesting to a capital jury that it is not responsible for a 

death sentence). Those decisions altered the processes in 

which States must engage before sentencing a person to

death. The processes may have had some effect on the

likelihood that capital punishment would be imposed, but 

none of those decisions rendered a certain penalty unconstitutionally excessive for a category of offenders.

The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller 

states a substantive rule comports with the principles that

informed Teague. Teague sought to balance the important 

goals of finality and comity with the liberty interests of 

those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life 

without parole is disproportionate for the vast majority of

juvenile offenders raises a grave risk that many are being 

held in violation of the Constitution. 

Giving Miller retroactive effect, moreover, does not 

require States to relitigate sentences, let alone convic­
 

Cite as: 577 U. S. ____ (2016) 21 

Opinion of the Court 

tions, in every case where a juvenile offender received 

mandatory life without parole. A State may remedy a 

Miller violation by permitting juvenile homicide offenders 

to be considered for parole, rather than by resentencing 

them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) 

(juvenile homicide offenders eligible for parole after 25 

years). Allowing those offenders to be considered for 

parole ensures that juveniles whose crimes reflected only

transient immaturity—and who have since matured—will 

not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. 

Extending parole eligibility to juvenile offenders does 

not impose an onerous burden on the States, nor does it 

disturb the finality of state convictions. Those prisoners

who have shown an inability to reform will continue to 

serve life sentences. The opportunity for release will be

afforded to those who demonstrate the truth of Miller’s 

central intuition—that children who commit even heinous 

crimes are capable of change. 

Petitioner has discussed in his submissions to this Court 

his evolution from a troubled, misguided youth to a model

member of the prison community. Petitioner states that 

he helped establish an inmate boxing team, of which he

later became a trainer and coach. He alleges that he has

contributed his time and labor to the prison’s silkscreen 

department and that he strives to offer advice and serve 

as a role model to other inmates. These claims have not 

been tested or even addressed by the State, so the Court 

does not confirm their accuracy. The petitioner’s submissions are relevant, however, as an example of one 

kind of evidence that prisoners might use to demonstrate

rehabilitation. 

* * * 

Henry Montgomery has spent each day of the past 46

years knowing he was condemned to die in prison. Per­
 

22 MONTGOMERY v. LOUISIANA 

Opinion of the Court 

haps it can be established that, due to exceptional circumstances, this fate was a just and proportionate punishment 

for the crime he committed as a 17-year-old boy. In light

of what this Court has said in Roper, Graham, and Miller 

about how children are constitutionally different from

adults in their level of culpability, however, prisoners like 

Montgomery must be given the opportunity to show their 

crime did not reflect irreparable corruption; and, if it did 

not, their hope for some years of life outside prison walls 

must be restored. 

The judgment of the Supreme Court of Louisiana is 

reversed, and the case is remanded for further proceedings 

not inconsistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

 


 

Cite as: 577 U. S. ____ (2016) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 14–280 

HENRY MONTGOMERY, PETITIONER v. LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

LOUISIANA
 

[January 25, 2016]

 JUSTICE SCALIA, with whom JUSTICE THOMAS and 

JUSTICE ALITO join, dissenting. 

The Court has no jurisdiction to decide this case, and

the decision it arrives at is wrong. I respectfully dissent. 

I. Jurisdiction 

Louisiana postconviction courts willingly entertain 

Eighth Amendment claims but, with limited exceptions, 

apply the law as it existed when the state prisoner was

convicted and sentenced. Shortly after this Court announced Teague v. Lane, 489 U. S. 288 (1989), the Louisiana Supreme Court adopted Teague’s framework to govern

the provision of postconviction remedies available to state 

prisoners in its state courts as a matter of state law. Taylor v. Whitley, 606 So. 2d 1292 (1992). In doing so, the

court stated that it was “not bound” to adopt that federal

framework. Id., at 1296. One would think, then, that it is 

none of our business that a 69-year-old Louisiana prisoner’s state-law motion to be resentenced according to Miller 

v. Alabama, 567 U. S. ___ (2012), a case announced almost 

half a century after his sentence was final, was met with a

firm rejection on state-law grounds by the Louisiana 

Supreme Court. But a majority of this Court, eager to

reach the merits of this case, resolves the question of our

jurisdiction by deciding that the Constitution requires 

state postconviction courts to adopt Teague’s exception for 
 

 

 

2 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

so-called “substantive” new rules and to provide state-law

remedies for the violations of those rules to prisoners 

whose sentences long ago became final. This conscription

into federal service of state postconviction courts is nothing short of astonishing. 

A 

Teague announced that federal courts could not grant 

habeas corpus to overturn state convictions on the basis of 

a “new rule” of constitutional law—meaning one announced after the convictions became final—unless that 

new rule was a “substantive rule” or a “watershed rul[e] of 

criminal procedure.” 489 U. S., at 311. The Teague prescription followed from Justice Harlan’s view of the “retroactivity problem” detailed in his separate opinion in Desist 

v. United States, 394 U. S. 244, 256 (1969) (dissenting 

opinion), and later in Mackey v. United States, 401 U. S. 

667, 675 (1971) (opinion concurring in judgment in part 

and dissenting in part). Placing the rule’s first exception

in context requires more analysis than the majority has

applied.

The Court in the mid-20th century was confounded by 

what Justice Harlan called the “swift pace of constitutional change,” Pickelsimer v. Wainwright, 375 U. S. 2, 4 

(1963) (dissenting opinion), as it vacated and remanded 

many cases in the wake of Gideon v. Wainwright, 372 

U. S. 335 (1963). Justice Harlan called upon the Court to 

engage in “informed and deliberate consideration” of 

“whether the States are constitutionally required to apply 

[Gideon’s] new rule retrospectively, which may well require the reopening of cases long since finally adjudicated

in accordance with then applicable decisions of this

Court.” Pickelsimer, supra, at 3. The Court answered 

that call in Linkletter v. Walker, 381 U. S. 618 (1965). 

Linkletter began with the premise “that we are neither 

required to apply, nor prohibited from applying, a decision 
Cite as: 577 U. S. ____ (2016) 3 

SCALIA, J., dissenting 

retrospectively” and went on to adopt an equitable rule-byrule approach to retroactivity, considering “the prior history of the rule in question, its purpose and effect, and

whether retrospective operation will further or retard its

operation.” Id., at 629.

 The Linkletter framework proved unworkable when the 

Court began applying the rule-by-rule approach not only

to cases on collateral review but also to cases on direct 

review, rejecting any distinction “between convictions now 

final” and “convictions at various stages of trial and direct 

review.” Stovall v. Denno, 388 U. S. 293, 300 (1967). It 

was this rejection that drew Justice Harlan’s reproach in 

Desist and later in Mackey. He urged that “all ‘new’ rules

of constitutional law must, at a minimum, be applied to all 

those cases which are still subject to direct review by this 

Court at the time the ‘new’ decision is handed down.” 

Desist, supra, at 258 (dissenting opinion). “Simply 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 constitute an indefensible departure from th[e] model of judicial review.” 

Mackey, supra, at 679. 

The decision in Griffith v. Kentucky, 479 U. S. 314 

(1987), heeded this constitutional concern. The Court 

jettisoned the Linkletter test for cases pending on direct

review and adopted for them Justice Harlan’s rule of

redressability: “[F]ailure to apply a newly declared constitutional rule to criminal cases pending on direct review

violates basic norms of constitutional adjudication.” 479 

U. S., at 322 (emphasis added). We established in Griffith 

that this Court must play by our own “old rules”—rules we

have settled before the defendant’s conviction and sentence become final, even those that are a “clear break from 

existing precedent”—for cases pending before us on direct

appeal. Id., at 323. Since the Griffith rule is constitution-
 

 

4 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

ally compelled, we instructed the lower state and federal

courts to comply with it as well. Ibid.

 When Teague followed on Griffith’s heels two years

later, the opinion contained no discussion of “basic norms 

of constitutional adjudication,” Griffith, supra, at 322, nor 

any discussion of the obligations of state courts. Doing 

away with Linkletter for good, the Court adopted Justice

Harlan’s solution to “the retroactivity problem” for cases 

pending on collateral review—which he described not as a

constitutional problem but as “a problem as to the scope of 

the habeas writ.” Mackey, supra, at 684 (emphasis added). 

Teague held that federal habeas courts could no longer 

upset state-court convictions for violations of so-called 

“new rules,” not yet announced when the conviction became final. 489 U. S., at 310. But it allowed for the previously mentioned exceptions to this rule of nonredressability: substantive rules placing “certain kinds of primary, 

private individual conduct beyond the power of the criminal law-making authority to proscribe” and “watershed

rules of criminal procedure.” Id., at 311. Then in Penry v. 

Lynaugh, 492 U. S. 302 (1989), the Court expanded this 

first exception for substantive rules to embrace new rules 

“prohibiting a certain category of punishment for a class of 

defendants because of their status or offense.” Id., at 330.

 Neither Teague nor its exceptions are constitutionally 

compelled. Unlike today’s majority, the Teague-era Court 

understood that cases on collateral review are fundamentally different from those pending on direct review because 

of “considerations of finality in the judicial process.” Shea 

v. Louisiana, 470 U. S. 51, 59–60 (1985). That line of 

finality demarcating the constitutionally required rule in 

Griffith from the habeas rule in Teague supplies the answer to the not-so-difficult question whether a state postconviction court must remedy the violation of a new substantive rule: No. A state court need only apply the law as

it existed at the time a defendant’s conviction and sen-
 

 

Cite as: 577 U. S. ____ (2016) 5 

SCALIA, J., dissenting 

tence became final. See Griffith, supra, at 322. And once 

final, “a new rule cannot reopen a door already closed.” 

James B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 

541 (1991) (opinion of Souter, J.). Any relief a prisoner

might receive in a state court after finality is a matter of

grace, not constitutional prescription. 

B 

The majority can marshal no case support for its contrary position. It creates a constitutional rule where none 

had been before: “Teague’s conclusion establishing the

retroactivity of new substantive rules is best understood 

as resting upon constitutional premises” binding in both 

federal and state courts. Ante, at 8. “Best understood.” 

Because of what? Surely not because of its history and 

derivation. 

Because of the Supremacy Clause, says the majority. 

Ante, at 12. But the Supremacy Clause cannot possibly 

answer the question before us here. It only elicits another

question: What federal law is supreme? Old or new? The 

majority’s champion, Justice Harlan, said the old rules 

apply for federal habeas review of a state-court conviction:

“[T]he habeas court need only apply the constitutional 

standards that prevailed at the time the original proceedings took place,” Desist, 394 U. S., at 263 (dissenting opinion), for a state court cannot “toe the constitutional mark” 

that does not yet exist, Mackey, 401 U. S., at 687 (opinion 

of Harlan, J.). Following his analysis, we have clarified 

time and again—recently in Greene v. Fisher, 565 U. S. 

___, ___–___ (2011) (slip op., at 4–5)—that federal habeas 

courts are to review state-court decisions against the law 

and factual record that existed at the time the decisions 

were made. “Section 2254(d)(1) [of the federal habeas

statute] refers, in the past tense, to a state-court adjudication that ‘resulted in’ a decision that was contrary to, or

‘involved’ an unreasonable application of, established law. 
 

 

6 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

This backward-looking language requires an examination 

of the state-court decision at the time it was made.” Cullen v. Pinholster, 563 U. S. 170, 181–182 (2011). How can 

it possibly be, then, that the Constitution requires a state 

court’s review of its own convictions to be governed by

“new rules” rather than (what suffices when federal courts

review state courts) “old rules”?

The majority relies on the statement in United States v. 

United States Coin & Currency, 401 U. S. 715 (1971), that 

“‘[n]o circumstances call more for the invocation of a rule

of complete retroactivity’ ” than when “‘the conduct being 

penalized is constitutionally immune from punishment.’” 

Ante, at 9–10 (quoting 401 U. S., at 724). The majority

neglects to mention that this statement was addressing

the “circumstances” of a conviction that “had not become 

final,” id., at 724, n. 13 (emphasis added), when the “rule 

of complete retroactivity” was invoked. Coin & Currency, 

an opinion written by (guess whom?) Justice Harlan,

merely foreshadowed the rule announced in Griffith, that 

all cases pending on direct review receive the benefit of 

newly announced rules—better termed “old rules” for such 

rules were announced before finality.

The majority also misappropriates Yates v. Aiken, 484 

U. S. 211 (1988), which reviewed a state habeas petitioner’s Fourteenth Amendment claim that the jury instructions at his trial lessened the State’s burden to prove every 

element of his offense beyond a reasonable doubt. That 

case at least did involve a conviction that was final. But 

the majority is oblivious to the critical fact that Yates’s

claim depended upon an old rule, settled at the time of his 

trial. Id., at 217. This Court reversed the state habeas 

court for its refusal to consider that the jury instructions

violated that old rule. Ibid. The majority places great 

weight upon the dictum in Yates that the South Carolina 

habeas court “‘ha[d] a duty to grant the relief that federal 

law requires.’” Ante, at 13 (quoting Yates, supra, at 218). 
 

 

 

Cite as: 577 U. S. ____ (2016) 7 

SCALIA, J., dissenting 

It is simply wrong to divorce that dictum from the facts it 

addressed. In that context, Yates merely reinforces the

line drawn by Griffith: when state courts provide a forum

for postconviction relief, they need to play by the “old

rules” announced before the date on which a defendant’s 

conviction and sentence became final. 

The other sleight of hand performed by the majority is

its emphasis on Ex parte Siebold, 100 U. S. 371 (1880).

That case considered a petition for a federal writ of habeas 

corpus following a federal conviction, and the initial issue 

it confronted was its jurisdiction. A federal court has no 

inherent habeas corpus power, Ex parte Bollman, 4 

Cranch 75, 94 (1807), but only that which is conferred 

(and limited) by statute, see, e.g., Felker v. Turpin, 518 

U. S. 651, 664 (1996). As Siebold stated, it was forbidden 

to use the federal habeas writ “as a mere writ of error.” 

100 U. S., at 375. “The only ground on which this court, or

any court, without some special statute authorizing it, 

[could] give relief on habeas corpus to a prisoner under

conviction and sentence of another court is the want of 

jurisdiction in such court over the person or the cause, or

some other matter rendering its proceedings void.” Ibid. 

Turning to the facts before it, the Court decided it was 

within its power to hear Siebold’s claim, which did not

merely protest that the conviction and sentence were

“erroneous” but contended that the statute he was convicted of violating was unconstitutional and the conviction

therefore void: “[I]f the laws are unconstitutional and void,

the Circuit Court acquired no jurisdiction of the causes.” 

Id., at 376–377. Siebold is thus a decision that expands

the limits of this Court’s power to issue a federal habeas 

writ for a federal prisoner. 

The majority, however, divines from Siebold “a general 

principle” that “a court has no authority to leave in place a

conviction or sentence that violates a substantive rule, 

regardless of whether the conviction or sentence became 
 

 

 

8 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

final before the rule was announced.” Ante, at 11. That is 

utterly impossible. No “general principle” can rationally 

be derived from Siebold about constitutionally required 

remedies in state courts; indeed, the opinion does not even

speak to constitutionally required remedies in federal 

courts. It is a decision about this Court’s statutory power 

to grant the Original Writ, not about its constitutional 

obligation to do so. Nowhere in Siebold did this Court 

intimate that relief was constitutionally required—or as

the majority puts it, that a court would have had “no

authority” to leave in place Siebold’s conviction, ante, at 

11. 

The majority’s sorry acknowledgment that “Siebold and 

the other cases discussed in this opinion, of course, do not 

directly control the question the Court now answers for 

the first time,” ibid., is not nearly enough of a disclaimer.

It is not just that they “do not directly control,” but that 

the dicta cherry picked from those cases are irrelevant; 

they addressed circumstances fundamentally different

from those to which the majority now applies them. Indeed, we know for sure that the author of some of those 

dicta, Justice Harlan, held views that flatly contradict the

majority.

The majority’s maxim that “state collateral review 

courts have no greater power than federal habeas courts to 

mandate that a prisoner continue to suffer punishment 

barred by the Constitution,” ante, at 12–13, begs the question rather than contributes to its solution. Until today,

no federal court was constitutionally obliged to grant relief

for the past violation of a newly announced substantive 

rule. Until today, it was Congress’s prerogative to do 

away with Teague’s exceptions altogether. Indeed, we had 

left unresolved the question whether Congress had already done that when it amended a section of the habeas 

corpus statute to add backward-looking language governing the review of state-court decisions. See Antiterrorism 
Cite as: 577 U. S. ____ (2016) 9 

SCALIA, J., dissenting 

and Effective Death Penalty Act of 1996, §104, 110 Stat.

1219, codified at 28 U. S. C. §2254(d)(1); Greene, 565 U. S, 

at ___, n. (slip op., at 5, n.). A maxim shown to be more 

relevant to this case, by the analysis that the majority

omitted, is this: The Supremacy Clause does not impose

upon state courts a constitutional obligation it fails to

impose upon federal courts. 

C 

All that remains to support the majority’s conclusion is 

that all-purpose Latin canon: ipse dixit. The majority

opines that because a substantive rule eliminates a State’s

power to proscribe certain conduct or impose a certain 

punishment, it has “the automatic consequence of invalidating a defendant’s conviction or sentence.” Ante, at 9. 

What provision of the Constitution could conceivably

produce such a result? The Due Process Clause? It surely

cannot be a denial of due process for a court to pronounce

a final judgment which, though fully in accord with federal

constitutional law at the time, fails to anticipate a change

to be made by this Court half a century into the future.

The Equal Protection Clause? Both statutory and (increasingly) constitutional laws change. If it were a denial 

of equal protection to hold an earlier defendant to a law

more stringent than what exists today, it would also be a

denial of equal protection to hold a later defendant to a 

law more stringent than what existed 50 years ago. No 

principle of equal protection requires the criminal law of

all ages to be the same.

The majority grandly asserts that “[t]here is no grandfather clause that permits States to enforce punishments the 

Constitution forbids.” Ante, at 12 (emphasis added). Of 

course the italicized phrase begs the question. There most 

certainly is a grandfather clause—one we have called 

finality—which says that the Constitution does not require States to revise punishments that were lawful when 
 

10 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

they were imposed. Once a conviction has become final, 

whether new rules or old ones will be applied to revisit the 

conviction is a matter entirely within the State’s control; 

the Constitution has nothing to say about that choice. The 

majority says that there is no “possibility of a valid result”

when a new substantive rule is not applied retroactively. 

Ante, at 9. But the whole controversy here arises because 

many think there is a valid result when a defendant has 

been convicted under the law that existed when his conviction became final. And the States are unquestionably 

entitled to take that view of things. 

The majority’s imposition of Teague’s first exception

upon the States is all the worse because it does not adhere

to that exception as initially conceived by Justice Harlan—

an exception for rules that “place, as a matter of constitutional interpretation, certain kinds of primary, private 

individual conduct beyond the power of the criminal lawmaking authority to proscribe.” Mackey, 401 U. S., at 692 

(emphasis added). Rather, it endorses the exception as 

expanded by Penry, to include “rules prohibiting a certain 

category of punishment for a class of defendants because 

of their status or offense.” 492 U. S., at 330. That expansion empowered and obligated federal (and after today 

state) habeas courts to invoke this Court’s Eighth 

Amendment “evolving standards of decency” jurisprudence

to upset punishments that were constitutional when imposed but are “cruel and unusual,” U. S. Const., Amdt. 8,

in our newly enlightened society. See Trop v. Dulles, 356 

U. S. 86, 101 (1958). The “evolving standards” test concedes that in 1969 the State had the power to punish

Henry Montgomery as it did. Indeed, Montgomery could 

at that time have been sentenced to death by our yet 

unevolved society. Even 20 years later, this Court reaffirmed that the Constitution posed no bar to death sentences for juveniles. Stanford v. Kentucky, 492 U. S. 361 

(1989). Not until our People’s “standards of decency” 
 

 

 

Cite as: 577 U. S. ____ (2016) 11 

SCALIA, J., dissenting 

evolved a mere 10 years ago—nearly 40 years after Montgomery’s sentence was imposed—did this Court declare 

the death penalty unconstitutional for juveniles. Roper v. 

Simmons, 543 U. S. 551 (2005). Even then, the Court 

reassured States that “the punishment of life imprisonment without the possibility of parole is itself a severe 

sanction,” implicitly still available for juveniles. Id., at 

572. And again five years ago this Court left in place this

severe sanction for juvenile homicide offenders. Graham 

v. Florida, 560 U. S. 48, 69 (2010). So for the five decades 

Montgomery has spent in prison, not one of this Court’s

precedents called into question the legality of his sentence—until the People’s “standards of decency,” as perceived by five Justices, “evolved” yet again in Miller. 

Teague’s central purpose was to do away with the old

regime’s tendency to “continually force the States to marshal resources in order to keep in prison defendants whose 

trials and appeals conformed to then-existing constitutional standards.” 489 U. S., at 310. Today’s holding

thwarts that purpose with a vengeance. Our ever-evolving

Constitution changes the rules of “cruel and unusual

punishments” every few years. In the passage from 

Mackey that the majority’s opinion quotes, ante, at 13, 

Justice Harlan noted the diminishing force of finality (and

hence the equitable propriety—not the constitutional 

requirement—of disregarding it) when the law punishes

nonpunishable conduct, see 401 U. S., at 693. But one 

cannot imagine a clearer frustration of the sensible policy 

of Teague when the ever-moving target of impermissible 

punishments is at issue. Today’s holding not only forecloses Congress from eliminating this expansion of Teague

in federal courts, but also foists this distortion upon the

States. 

II. The Retroactivity of Miller 

Having created jurisdiction by ripping Teague’s first 
 

 

12 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

exception from its moorings, converting an equitable rule 

governing federal habeas relief to a constitutional command governing state courts as well, the majority proceeds

to the merits. And here it confronts a second obstacle to 

its desired outcome. Miller, the opinion it wishes to impose upon state postconviction courts, simply does not

decree what the first part of the majority’s opinion says 

Teague’s first exception requires to be given retroactive

effect: a rule “set[ting] forth categorical constitutional 

guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose.” 

Ante, at 9 (emphasis added). No problem. Having distorted 

Teague, the majority simply proceeds to rewrite Miller. 

The majority asserts that Miller “rendered life without 

parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders 

whose crimes reflect the transient immaturity of youth.” 

Ante, at 17. It insists that Miller barred life-withoutparole sentences “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. 

For that reason, Miller is no less substantive than are 

Roper and Graham.” Ante, at 17–18. The problem is that 

Miller stated, quite clearly, precisely the opposite: “Our 

decision does not categorically bar a penalty for a class of 

offenders or type of crime—as, for example, we did in 

Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s

youth and attendant characteristics—before imposing a 

particular penalty.” 567 U. S., at ___ (slip op., at 20) 

(emphasis added).

To contradict that clear statement, the majority opinion

quotes passages from Miller that assert such things as 

“mandatory life-without-parole sentences for children 

‘pos[e] too great a risk of disproportionate punishment’” 

and “‘appropriate occasions for sentencing juveniles to this

harshest possible penalty will be uncommon.’” Ante, at 16 
 

Cite as: 577 U. S. ____ (2016) 13 

SCALIA, J., dissenting 

(quoting Miller, supra, at ___ (slip op., at 17)). But to say

that a punishment might be inappropriate and disproportionate for certain juvenile offenders is not to say that it is

unconstitutionally void. All of the statements relied on by 

the majority do nothing more than express the reason why

the new, youth-protective procedure prescribed by Miller is 

desirable: to deter life sentences for certain juvenile offenders. On the issue of whether Miller rendered lifewithout-parole penalties unconstitutional, it is impossible 

to get past Miller’s unambiguous statement that “[o]ur 

decision does not categorically bar a penalty for a class of 

offenders” and “mandates only that a sentencer follow a

certain process . . . before imposing a particular penalty.”

567 U. S., at ___ (slip op., at 20). It is plain as day that the

majority is not applying Miller, but rewriting it.1 

And the rewriting has consequences beyond merely

making Miller’s procedural guarantee retroactive. If, 

indeed, a State is categorically prohibited from imposing 

life without parole on juvenile offenders whose crimes do

not “reflect permanent incorrigibility,” then even when the 

procedures that Miller demands are provided the constitutional requirement is not necessarily satisfied. It remains 

available for the defendant sentenced to life without parole to argue that his crimes did not in fact “reflect permanent incorrigibility.” Or as the majority’s opinion puts 

it: “That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child[2] 

—————— 

1 It is amusing that the majority’s initial description of Miller is the 

same as our own: “[T]he Court held that a juvenile convicted of a 

homicide offense could not be sentenced to life in prison without parole

absent consideration of the juvenile’s special circumstances in light of

the principles and purposes of juvenile sentencing.” Ante, at 1. Only 15

pages later, after softening the reader with 3 pages of obfuscating 

analysis, does the majority dare to attribute to Miller that which Miller 

explicitly denies. 2The majority presumably regards any person one day short of voting 

age as a “child.” 
 

14 MONTGOMERY v. LOUISIANA 

SCALIA, J., dissenting 

whose crime reflects transient immaturity to life without 

parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” Ante, at 20. 

How wonderful. Federal and (like it or not) state judges 

are henceforth to resolve the knotty “legal” question: 

whether a 17-year-old who murdered an innocent sheriff ’s 

deputy half a century ago was at the time of his trial

“incorrigible.” Under Miller, bear in mind, the inquiry is

whether the inmate was seen to be incorrigible when he 

was sentenced—not whether he has proven corrigible and

so can safely be paroled today. What silliness. (And how 

impossible in practice, see Brief for National District

Attorneys Assn. et al. as Amici Curiae 9–17.) When in 

Lockett v. Ohio, 438 U. S. 586, 608 (1978), the Court imposed the thitherto unheard-of requirement that the sentencer in capital cases must consider and weigh all “relevant mitigating factors,” it at least did not impose the 

substantive (and hence judicially reviewable) requirement

that the aggravators must outweigh the mitigators; it

would suffice that the sentencer thought so. And, fairly 

read, Miller did the same. Not so with the “incorrigibility”

requirement that the Court imposes today to make Miller 

retroactive. 

But have no fear. The majority does not seriously expect state and federal collateral-review tribunals to engage in this silliness, probing the evidence of “incorrigibility” that existed decades ago when defendants were 

sentenced. What the majority expects (and intends) to 

happen is set forth in the following not-so-subtle invitation: “A State may remedy a Miller violation by permitting 

juvenile homicide offenders to be considered for parole,

rather than by resentencing them.” Ante, at 21. Of 

course. This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole

for juvenile offenders. The Court might have done that 
Cite as: 577 U. S. ____ (2016) 15 

SCALIA, J., dissenting 

expressly (as we know, the Court can decree anything),

but that would have been something of an embarrassment. 

After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life without parole was a severe enough punishment. See Roper, 

543 U. S., at 572. How could the majority—in an opinion 

written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly 

refused to say so in Miller. 567 U. S., at ___ (slip op., at 

17). So the Court refuses again today, but merely makes

imposition of that severe sanction a practical impossibility. And then, in Godfather fashion, the majority makes 

state legislatures an offer they can’t refuse: Avoid all the 

utterly impossible nonsense we have prescribed by simply 

“permitting juvenile homicide offenders to be considered 

for parole.” Ante, at 21. Mission accomplished. 
_________________ 

_________________ 


 

Cite as: 577 U. S. ____ (2016) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 14–280 

HENRY MONTGOMERY, PETITIONER v. LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

LOUISIANA
 

[January 25, 2016]

 JUSTICE THOMAS, dissenting. 

 I join JUSTICE SCALIA’s dissent. I write separately to

explain why the Court’s resolution of the jurisdictional 

question, ante, at 5–14, lacks any foundation in the Constitution’s text or our historical traditions. We have jurisdiction under 28 U. S. C. §1257 only if the Louisiana Supreme Court’s decision implicates a federal right. That 

condition is satisfied, the Court holds, because the Constitution purportedly requires state and federal postconviction courts to give “retroactive effect” to new substantive

constitutional rules by applying them to overturn longfinal convictions and sentences. Ante, at 8. Because our 

Constitution and traditions embrace no such right, I respectfully dissent. 

I 

“[O]ur jurisprudence concerning the ‘retroactivity’ of

‘new rules’ of constitutional law is primarily concerned,

not with the question whether a constitutional violation

occurred, but with the availability or nonavailability of 

remedies.” Danforth v. Minnesota, 552 U. S. 264, 290–291 

(2008). Accordingly, the issue in this case is not whether 

prisoners who received mandatory life-without-parole

sentences for crimes they committed decades ago as juveniles had an Eighth Amendment right not to receive such 

a sentence. Rather, the question is how, when, and in 
 

2 MONTGOMERY v. LOUISIANA 

THOMAS, J., dissenting 

what forum that newfound right can be enforced. See 

ibid. 

The Court answers that question one way: It says that

state postconviction and federal habeas courts are constitutionally required to supply a remedy because a sentence

or conviction predicated upon an unconstitutional law is a 

legal nullity. See ante, at 8–14. But nothing in the Constitution’s text or in our constitutional tradition provides

such a right to a remedy on collateral review. 

A 

No provision of the Constitution supports the Court’s

holding. The Court invokes only the Supremacy Clause,

asserting that the Clause deprives state and federal postconviction courts alike of power to leave an unconstitutional sentence in place. Ante, at 12–13. But that leaves 

the question of what provision of the Constitution supplies

that underlying prohibition.

The Supremacy Clause does not do so. That Clause 

merely supplies a rule of decision: If a federal constitutional right exists, that right supersedes any contrary

provisions of state law. See Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be 

made in Pursuance thereof . . . shall be the supreme Law 

of the Land; and the Judges in every State shall be bound 

thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding”). Accordingly, as 

we reaffirmed just last Term, the Supremacy Clause is no 

independent font of substantive rights. Armstrong v. 

Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015) 

(slip op., at 3).

Nor am I aware of any other provision in the Constitution that would support the Court’s new constitutional 

right to retroactivity. Of the natural places to look—

Article III, the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Equal Protection Clause of 
 

 

Cite as: 577 U. S. ____ (2016) 3 

THOMAS, J., dissenting 

the Fourteenth Amendment—none establishes a right to

void an unconstitutional sentence that has long been final.

To begin, Article III does not contain the requirement

that the Court announces today. Article III vests “[t]he

judicial Power” in this Court and whatever inferior courts

Congress creates, Art. III, §1, and “extend[s]” that power

to various “Cases . . . and Controversies,” Art. III, §2. 

Article III thus defines the scope of federal judicial power. 

It cannot compel state postconviction courts to apply new 

substantive rules retroactively.

Even if the Court’s holding were limited to federal 

courts, Article III would not justify it. The nature of “judicial power” may constrain the retroactivity rules that 

Article III courts can apply.* But even our broad modern 

precedents treat Article III as requiring courts to apply

new rules only on direct review. Thus in Griffith v. Kentucky, 479 U. S. 314 (1987), the Court suggested—based 

on Justice Harlan’s views—that “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.” Id., at 322–323. But, as Justice Harlan had explained, that view of Article III has no

force on collateral review: “While the entire theoretical 

underpinnings of judicial review and constitutional supremacy dictate that federal courts having jurisdiction on 

direct review adjudicate every issue of law . . . fairly implicated by the trial process below and properly presented on 

appeal, federal courts have never had a similar obligation

on habeas corpus.” Mackey v. United States, 401 U. S. 

667, 682 (1971) (opinion concurring in judgment in part 

and dissenting in part). 

—————— 

*For instance, Article III courts cannot arrive at a holding, refuse to

apply it to the case at hand, and limit its application to future cases

involving yet-to-occur events. The power to rule prospectively in this 

way is a quintessentially legislative power. See Harper v. Virginia 

Dept. of Taxation, 509 U. S. 86, 106–110 (1993) (SCALIA, J., concurring). 
 

4 MONTGOMERY v. LOUISIANA 

THOMAS, J., dissenting 

The Court’s holding also cannot be grounded in the Due

Process Clause’s prohibition on “depriv[ations] . . . of life,

liberty, or property, without due process of law.” Amdts. V 

and XIV, §1. Quite possibly, “‘[d]ue process of law’ was

originally used as a shorthand expression for governmental proceedings according to the ‘law of the land’ as it 

existed at the time of those proceedings.” In re Winship, 

397 U. S. 358, 378 (1970) (Black, J., dissenting) (emphasis 

added); accord, Johnson v. United States, 576 U. S. 

___, ___ (2015) (THOMAS, J., concurring in judgment) 

(slip op., at 17). Under that understanding, due process

excluded any right to have new substantive rules apply 

retroactively. 

Even if due process required courts to anticipate this

Court’s new substantive rules, it would not compel courts 

to revisit settled convictions or sentences on collateral 

review. We have never understood due process to require

further proceedings once a trial ends. The Clause “does 

not establish any right to an appeal . . . and certainly does 

not establish any right to collaterally attack a final judgment of conviction.” United States v. MacCollom, 426 

U. S. 317, 323 (1976) (plurality opinion); see Pennsylvania 

v. Finley, 481 U. S. 551, 557 (1987) (“States have no obligation to provide [postconviction] relief ”). Because the 

Constitution does not require postconviction remedies, it

certainly does not require postconviction courts to revisit

every potential type of error. Cf. Martinez v. Court of 

Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 165– 

166 (2000) (SCALIA, J., concurring in judgment) (“Since a

State could . . . subject its trial-court determinations to no 

review whatever, it could a fortiori subject them to review

which consists of a nonadversarial reexamination of convictions by a panel of government experts”).

Nor can the Equal Protection Clause justify requiring 

courts on collateral review to apply new substantive rules

retroactively. That Clause prohibits a State from “de-
 

Cite as: 577 U. S. ____ (2016) 5 

THOMAS, J., dissenting 

ny[ing] to any person within its jurisdiction the equal

protection of the laws.” Amdt. XIV, §1. But under our 

precedents “a classification neither involving fundamental 

rights nor proceeding along suspect lines . . . cannot run

afoul of the Equal Protection Clause if there is a rational

relationship between the disparity of treatment and some 

legitimate governmental purpose.” Armour v. Indianapolis, 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted; ellipsis in original). 

The disparity the Court eliminates today—between 

prisoners whose cases were on direct review when this 

Court announced a new substantive constitutional rule, 

and those whose convictions had already become final—is

one we have long considered rational. “[T]he notion that

different standards should apply on direct and collateral 

review runs throughout our recent habeas jurisprudence.” 

Wright v. West, 505 U. S. 277, 292 (1992); see Brecht v. 

Abrahamson, 507 U. S. 619, 633–635 (1993). Thus, our 

precedents recognize a right to counsel on direct review,

but not in collateral proceedings. Compare Douglas v. 

California, 372 U. S. 353, 355–358 (1963) (courts must 

provide counsel on an initial direct appeal), with Finley, 

supra, at 555 (no such right on habeas). The Fourth 

Amendment also applies differently on direct and collateral review. Compare Mapp v. Ohio, 367 U. S. 643, 654– 

660 (1961) (courts on direct review must exclude evidence 

obtained in violation of the Fourth Amendment), with 

Stone v. Powell, 428 U. S. 465, 489–496 (1976) (no relitigation of such claims on collateral review). 

These distinctions are reasonable. They reflect the

“significant costs” of collateral review, including disruption of “the State’s significant interest in repose for concluded litigation.” Wright, supra, at 293 (internal quotation marks omitted). Our equal protection precedents, 

therefore, do not compel a uniform rule of retroactivity in 

direct and collateral proceedings for new substantive 
 

6 MONTGOMERY v. LOUISIANA 

THOMAS, J., dissenting 

constitutional rules. 

B 

The Court’s new constitutional right also finds no basis 

in the history of state and federal postconviction proceedings. Throughout our history, postconviction relief for 

alleged constitutional defects in a conviction or sentence 

was available as a matter of legislative grace, not constitutional command. 

The Constitution mentions habeas relief only in the

Suspension Clause, which specifies that “[t]he Privilege of 

the Writ of Habeas Corpus shall not be suspended, unless 

when in Cases of Rebellion or Invasion the public Safety 

may require it.” Art. I, §9, cl. 2. But that Clause does not 

specify the scope of the writ. And the First Congress, in

prescribing federal habeas jurisdiction in the 1789 Judiciary Act, understood its scope to reflect “the black-letter

principle of the common law that the writ was simply not 

available at all to one convicted of crime by a court of

competent jurisdiction.” Bator, Finality in Criminal Law 

and Federal Habeas Corpus for State Prisoners, 76 Harv.

L. Rev. 441, 466 (1963). Early cases echoed that understanding. E.g., Ex parte Watkins, 3 Pet. 193, 202 (1830) 

(“An imprisonment under a judgment cannot be unlawful, 

unless that judgment be an absolute nullity; and it is not a 

nullity if the court has general jurisdiction of the subject,

although it should be erroneous”). 

For nearly a century thereafter, this Court understood

the Judiciary Act and successor provisions as limiting

habeas relief to instances where the court that rendered 

the judgment lacked jurisdiction over the general category

of offense or the person of the prisoner. See Wright, supra, 

at 285 (recounting history). Federal habeas courts thus 

afforded no remedy for a claim that a sentence or conviction was predicated on an unconstitutional law. Nor did 

States. Indeed, until 1836, Vermont made no provision for 
 

Cite as: 577 U. S. ____ (2016) 7 

THOMAS, J., dissenting 

any state habeas proceedings. See Oaks, Habeas Corpus 

in the States 1776–1865, 32 U. Chi. L. Rev. 243, 250 

(1965). Even when States allowed collateral attacks in 

state court, review was unavailable if the judgment of 

conviction was rendered by a court with general jurisdiction over the subject matter and the defendant. Id., at 

261–262. 

The Court portrays Ex parte Siebold, 100 U. S. 371 

(1880), as a departure from this history and as the genesis

of a constitutional principle that “a conviction obtained

under an unconstitutional law warrants habeas relief.” 

Ante, at 12. But Siebold—a case construing the scope of 

federal habeas review under the 1789 Judiciary Act—does

not support the Court’s position. Ante, at 7–8 (SCALIA, J., 

dissenting). Siebold did not imply that the Constitution

requires courts to stop enforcing convictions under an

unconstitutional law. Rather, Siebold assumed that prisoners would lack a remedy if the federal habeas statute

did not allow challenges to such convictions. 100 U. S., at 

377 (“It is true, if no writ of error lies, the judgment may 

be final, in the sense that there may be no means of reversing it”).

Moreover, when Congress authorized appeals as a matter of right in federal criminal cases, the Court renounced 

Siebold and stopped entertaining federal habeas challenges to the constitutionality of the statute under which a 

defendant was sentenced or convicted. See Bator, supra, 

at 473–474, and n. 77. If the Constitution prevented 

courts from enforcing a void conviction or sentence even 

after the conviction is final, this Court would have been 

incapable of withdrawing relief. 

The Court’s purported constitutional right to retroactivity on collateral review has no grounding even in our modern precedents. In the 1950’s, this Court began recognizing many new constitutional rights in criminal proceedings. Even then, however, the Court did not perceive any 
 


 

8 MONTGOMERY v. LOUISIANA 

THOMAS, J., dissenting 

constitutional right for prisoners to vacate their convictions or sentences on collateral review based on the 

Court’s new interpretations of the Constitution. To the 

contrary, the Court derived Miranda warnings and the

exclusionary rule from the Constitution, yet drew the line 

at creating a constitutional right to retroactivity. E.g., 

Linkletter v. Walker, 381 U. S. 618, 629 (1965) (“[T]he

Constitution neither prohibits nor requires retrospective

effect. As Justice Cardozo said, ‘We think the Federal 

Constitution has no voice upon the subject’”).

Only in 1987, in Griffith v. Kentucky, 479 U. S. 314, did 

this Court change course and hold that the Constitution

requires courts to give constitutional rights some retroactive effect. Even then, Griffith was a directive only to 

courts on direct review. It held 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.” Id., at 328. It said nothing about

what happens once a case becomes final. That was resolved in Teague v. Lane, 489 U. S. 288 (1989)—which

announced the narrow exceptions to the rule against 

retroactivity on collateral review—but which did so by

interpreting the scope of the federal habeas writ, not the 

Constitution. 

II
 

A 

Not only does the Court’s novel constitutional right lack

any constitutional foundation; the reasoning the Court

uses to construct this right lacks any logical stopping

point. If, as the Court supposes, the Constitution bars 

courts from insisting that prisoners remain in prison when 

their convictions or sentences are later deemed unconstitutional, why can courts let stand a judgment that wrongly 

decided any constitutional question?

The Court confronted this question when Siebold and 
 

 

Cite as: 577 U. S. ____ (2016) 9 

THOMAS, J., dissenting 

other cases began expanding the federal habeas statute to 

encompass claims that a sentence or conviction was constitutionally void. But the Court could not find a satisfactory answer: “A judgment may be erroneous and not void,

and it may be erroneous because it is void. The distinctions . . . are very nice, and they may fall under the one 

class or the other as they are regarded for different purposes.” Ex parte Lange, 18 Wall. 163, 175–176 (1874). 

The lack of any limiting principle became apparent as

the Court construed the federal habeas statute to supply

jurisdiction to address prerequisites to a valid sentence or 

conviction (like an indictment). See Bator, 76 Harv. 

L. Rev., at 467–468, and n. 56, 471. As Justice Bradley, 

Siebold’s author, later observed for the Court: “It is difficult to see why a conviction and punishment under an

unconstitutional law is more violative of a person’s constitutional rights, than an unconstitutional conviction and 

punishment under a valid law.” In re Nielsen, 131 U. S. 

176, 183 (1889).

I doubt that today’s rule will fare any better. By refashioning Siebold as the foundation of a purported constitutional right, the Court transforms an unworkable doctrine 

into an immutable command. Because Justice Bradley’s

dicta in Siebold was a gloss on the 1789 Judiciary Act,

Congress could at least supply a fix to it. But the Court’s 

reinvention of Siebold as a constitutional imperative

eliminates any room for legislative adjustment. 

B 

There is one silver lining to today’s ruling: States still 

have a way to mitigate its impact on their court systems.

As the Court explains, States must enforce a constitutional

right to remedies on collateral review only if such proceedings are “open to a claim controlled by federal law.” 

Ante, at 13. State courts, on collateral review, thus must 

provide remedies for claims under Miller v. Alabama, 567 
 

 

10 MONTGOMERY v. LOUISIANA 

THOMAS, J., dissenting 

U. S. ___ (2012), only if those courts are open to “claims 

that a decision of this Court has rendered certain sentences illegal . . . under the Eighth Amendment.” See ante, 

at 13. 

Unlike the rule the Court announces today, this limitation at least reflects a constitutional principle. Only when

state courts have chosen to entertain a federal claim can 

the Supremacy Clause conceivably command a state court

to apply federal law. As we explained last Term, private

parties have no “constitutional . . . right to enforce federal

laws against the States.” Armstrong, 575 U. S., at ___ 

(slip op., at 4). Instead, the Constitution leaves the initial 

choice to entertain federal claims up to state courts, which 

are “tribunals over which the government of the Union has 

no adequate control, and which may be closed to any claim 

asserted under a law of the United States.” Osborn v. 

Bank of United States, 9 Wheat. 738, 821 (1824). 

States therefore have a modest path to lessen the burdens that today’s decision will inflict on their courts. 

States can stop entertaining claims alleging that this

Court’s Eighth Amendment decisions invalidated a sentence, and leave federal habeas courts to shoulder the 

burden of adjudicating such claims in the first instance. 

Whatever the desirability of that choice, it is one the

Constitution allows States to make. 

* * * 

Today’s decision repudiates established principles of

finality. It finds no support in the Constitution’s text, and

cannot be reconciled with our Nation’s tradition of considering the availability of postconviction remedies a matter 

about which the Constitution has nothing to say. I respectfully dissent.