How Much More of a Fiction is Due Process Notice for a Person with a Mental Impairment Than For a Person Without One?

By Mike Dorf

My new Verdict column discusses Monday's SCOTUS decision in Metrish v. Lancaster.  Writing for a unanimous Court, Justice Ginsburg's opinion says that regardless of whether Lancaster's due process rights were violated when he was not permitted to offer a diminished capacity defense that was on the books at the time of the crime charged, the Michigan state court decision denying him that opportunity was not an "unreasonable" interpretation of Supreme Court case law; thus, under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Court said that Lancaster was not entitled to habeas relief.  My column locates Lancaster and AEDPA in the decades-long retreat from expansive notions of habeas as a collateral remedy expounded during the Warren Court era.

Here I want to ask the question that the Court finds unnecessary to reach in light of AEDPA's deferential standard of review of state court applications of federal law: Were Lancaster's due process rights actually violated?  The Court's opinion suggests (correctly in my view) that this is an open question.  Here is how my column summarizes the key point:
According to the Supreme Court, Lancaster’s case fell somewhere in between two of the Court’s own prior precedents.  In the 1964 case of Bouie v. City of Columbia, the Court held that due process forbade a state from retroactively applying a construction of a criminal trespass statute forbidding entering private property to people who refused to leave such property.  In the 2001 case of Rogers v. Tennessee, the Court permitted the retroactive refusal of a state court to apply the common law rule requiring that the victim of an attack must die within a year and a day of the attack, in order for the perpetrator to be charged with murder.  According to the Court in Lancaster, taking away the diminished capacity defense after the fact is more like a due process violation than the non-violation found in Rogers, but less like a due process violation than the violation found in Bouie.
The Lancaster Court did not say which side of the line the case fell, because it found that the Michigan courts' decision was not unreasonable under AEDPA.  But considered de novo, where would it fall?

My initial inclination is to say that Lancaster is more like Rogers than like Bouie, and that therefore Lancaster's due process rights were not violated when the Michigan courts didn't permit him to make his diminished capacity defense.  That's because the central issue here is notice.  It violated the due process rights of the demonstrators in Bouie to be subject to a criminal trespass statute for staying on private property without permission when the statute only said in so many words that it forbade entering private property without permission.  Thus, they could plausibly claim that they didn't have notice that what they were doing was criminal.  By contrast, in Rogers, the defendant could not plausibly have claimed that he was relying on the year-and-a-day rule when he attacked his victim, because the timing of the victim's death was fortuitous.  (Perhaps a different case would be presented by a killer who used a poison known to take over a year to kill its victim, although it's hard to generate any sympathy for such a killer.)  Seen in this way, Lancaster also does not appear to have been prejudiced by lack of notice.  The whole point of the diminished capacity defense he wanted to make is that he lacked the capacity to form the intent to kill.  But if that's so, then notice wouldn't have done him any good.

I am nonetheless uncertain about whether Lancaster has a good claim because the Court in Rogers did not rely on the distinction I have just drawn.  Instead, it relied chiefly on the fact that the Tennessee Supreme Court in Rogers overturned a common-law doctrine that had never had a firm basis in the case law, so that Rogers could not have been unfairly surprised by the Court's rejection of it.  By that standard, the question whether Lancaster is more like Bouie or Rogers would involve parsing prior Michigan law to see how firmly established the diminished capacity defense was at the time of Lancaster's crime, and whether it was rooted in statutory interpretation or common law.

In addition, notice is always something of a fiction, but that does not typically bother the courts.  It's true that the notice question feels still more fictional in Lancaster and Rogers than in Bouie, but one could make an argument for relying on formal notions of notice across the board.

Bottom Line: I think it is an open question whether Lancaster had a good due process claim.  That means the Court's decision is probably right as an interpretation of AEDPA.  My column should thus be read not as a critique of the ruling in Lancaster itself but as a lament that Congress and the Court have so narrowed habeas.