Supreme Court Bans Retroactive Application of New Decisions in Criminal Cases

Posted On Thursday, May 20, 2021
By: Lourdes Sánchez Ridge


The U.S. Supreme Court announced that new decisions in criminal cases are never to be applied retroactively in cases not on direct review.

The U.S. Supreme Court (the Court) has once again ruled that new decisions in criminal matters are not to be applied retroactively on federal collateral review even if convictions were obtained in violation of the Constitution.  The Court saw no new rules of criminal procedure capable of ever being applied retroactively.  It stated in its May 17, 2021 opinion in Edwards v Vannoy, (Edwards) that continuing to suggest that there may be cases in the future where retroactive application of a new rule or decision is possible, is giving litigants false hope of reversal, “distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.”

In Edwards the defendant was convicted of kidnapping, armed robbery, and rape by less than a unanimous vote.  The defendant appealed arguing that a non-unanimous jury verdict in state court violated his Sixth Amendment constitutional right to a unanimous verdict.  While the defendant’s petition for certiori before the Court was pending, the Court decided Ramos v Louisiana, (Ramos), ruling that the Fourteenth Amendment incorporates the Sixth Amendment’s right to a unanimous jury verdict requiring state court convictions to be unanimous.  The Court refused to retroactively apply the Ramos decision to Edwards.

A new rule of criminal procedure decided by the Court, either by reversing an existing precedent or declaring a new rule, does not usually apply retroactively to overturn final convictions on federal collateral review.  The Court reasoned that applying a new rule retroactively “seriously undermines the principle of finality which is essential to the operation of our criminal justice system.”  The Court further explained that applying a new rule would essentially open the floodgates of overturning decades of convictions and relitigating cases would be too costly and virtually impossible in older cases where the evidence may have been stale or lost. 

Prior to Edwards, there was only one exception to the rule forbidding retroactive application of a new rule:  the “watershed rule of criminal procedure.”  The watershed rule allowed for a new rule to be applied retroactively if it alters “our understanding of the bedrock procedural elements essential to the fairness of a proceeding.  Yet, only one doctrine has ever been applied retroactively:  the right to counsel in criminal cases, Gideon v Wainwright.  Since 1963 there has been no new rules applied retroactively including landmark cases that fundamentally reshaped and expanded constitutional rights of criminal defendants such as the defendant’s right to counsel during police interrogation (Miranda v Arizona); the right to a jury trial (Duncan v Louisiana); and the right under the Sixth Amendment Confrontation Clause to restrict hearsay evidence (Crawford v Washington).

It is of utmost interest that the Court has determined that there will never be a situation where a constitutional violation is so grave that will merit applying a new decision retroactively.  In Edwards, the Court has essentially shattered all hopes of any defendant having been convicted in violation of the Constitution but whose constitutional infirmities had not yet been decided at the time of conviction. 

Task Force Created to Increase COVID-19 Related Prosecutions

Posted On Tuesday, May 18, 2021
By: Lourdes Sánchez Ridge


The government has increased its prosecutions of fraud related to COVID-19 funds and programs.  Given the rapid development of these programs and enforcement, it is more critical than ever to ensure that the government’s evidence and theories comport with the statutory provisions of recently enacted laws.

On May 17, 2021 the United States Attorney General announced the formation of a COVID-19 Fraud Enforcement Task Force.  Due to the COVID-19 pandemic, the federal government provided critical monetary relief to businesses and individuals who were impacted by the pandemic.  While most Americans were honest in their application and use of those relief funds, the government alleges that others were not. The Department of Justice (DOJ) will be joining forces with other governmental agencies to step up its investigations and prosecutions of fraud by sharing information and providing additional support to its partners.

More than $2 trillion has been spent by the federal government in relief funds under the Coronavirus Aid, Relief, and Economic Security (CARES) Act including relief under the Paycheck Protection Program, the Economic Injury Disaster Loan, Economic Impact Payments, Provider Relief Fund, Pandemic Unemployment Assistance, and Federal Pandemic Unemployment Compensation.  DOJ’s prosecutions of COVID-19 related fraud has been fierce.  Even before this task force was created, DOJ prosecuted over 500 individuals in COVID-19 related fraud.  Many of the prosecutions involved making false statements to the government or a bank in applying for the relief funds and/or misusing the funds for non-intended purposes.  Wire fraud, bank fraud, making false statements to the government or bank, and money laundering are the most common charges.

Examples of the many types of fraudulent schemes subject of investigation include:

  • Making false representations and/or using those funds for other than the intended purpose.
  • Charitable solicitation fraud—Involves allegations that a fraudster claims to be a legitimate organization raising funds to aid victims.
  • Price gauging—Involves businesses or individuals raising the cost of necessary items, such as masks.
  • Fraudulent COVID vaccine and test results.
  • Schemes to obtain personal, banking, and Medicare information.
  • Bribes and tax fraud. 

It is easy for anyone to report suspected fraud.  The DOJ has a National Center for Disaster Fraud hotline in place for the public to report suspected fraudulent schemes. With the COVID-19 Task Force in place, it is suspected that the investigations and prosecutions will come at a faster pace and be more streamlined.  The CARES Act went through multiple iterations and companies and individuals being investigated should test the government’s theories to ensure that the government has the evidence it requires to prosecute.