Substantive vs. Procedural Law: Distinctions (And Why They Matter)

Criminal appeals can involve issues of both substantive and procedural law. Though the terms are easily dismissed as legal jargon, it’s worth understanding the differences: whether a law is defined as substantive or procedural can have practical implications for a variety of issues like, for instance, retroactivity, as we discussed in a previous post (and will revisit shortly).

A simple explanation is: substantive law is the what and procedural law is the how. In other words, substantive law defines the acts that constitute criminal behavior and what a prosecutor must prove to convict you of a crime. Procedural law sets limits and bounds around how a prosecutor may go about proving your case. 

Here, we will flesh out these definitions and discuss one context in which the difference between substantive and procedural laws becomes extremely important: the issue of retroactivity for §2255 motions.

The Distinctions 

In his majority opinion in the 2004 case Schiro vs. Summerlin, Justice Scalia distinguished substantive and procedural law as follows:

A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes…In contrast, rules that regulate only the manner of determining the defendant’s culpability are procedural.

In other words, substantive law determines guilt or innocence, specifically, what elements the prosecutor must prove beyond a reasonable doubt. Substantive laws can vary by state and jurisdiction, but at their core, they’re about the behavior or conduct involved in a crime.

Procedural law deals with how guilt is determined. Procedure is just as important as substance: a verdict that stems from bad procedure, like inadmissible evidence, can mean the difference between your guilt and innocence in the eyes of the law. It goes beyond whether someone did or didn’t commit a certain act.

Procedural law, too, can vary by jurisdiction. Both state and federal courts set their own procedure. However, all are bound to constitutional rules as interpreted by SCOTUS. Procedural issues frequently arise in cases involving Fourth Amendment searches and seizures. Other oft-litigated procedural issues can involve witness testimony, ineffective assistance of counsel, and standards of judicial review.

Some other examples of basic procedural laws are:

• All arrests must be based on probable cause.
• Charges must clearly spell out the crimes of which you’re accused.
• You must be arraigned before a judge and given the opportunity to enter a plea. 
• If you cannot reach a plea agreement, then your case will be set for trial.
• You must be offered a court-appointed attorney.
• You have the right to appeal.

In legal practice, the distinctions can be a bit more nuanced, gray, and more difficult to ascertain. For example, in Schiro, the Court analyzed a 2002 death penalty case called Ring vs. Arizona. Ring involved an Arizona statute that effectively shrunk the class of defendants eligible for the death penalty. The Court in Ring held that a sentencing jury, not a judge, must identify the aggravating factors necessary to impose the death penalty. The Schiro Court reasoned that this was a matter of procedure rather than substance. The ruling “did not alter the range of conduct Arizona law subjected to the death penalty” because it couldn’t: it was based entirely on the Sixth Amendment jury trial guarantee, which was a rule that “has nothing to do with the range of conduct a State may criminalize” and everything to do with the manner in which a person is sentenced. Ring changed the permissible methods for determining whether a crime should be punishable by death, requiring that a jury rather than a judge “should find the essential facts bearing on punishment.” The majority goes on to clarify that rules that grant decision-making authority in this way are procedural rather than substantive. 

In this case, what initially seemed substantive in nature (the scope of a statute and what class of defendants was within its reach) was actually, at its core, about the procedure by which a person could be subjected to the death penalty. 

An Important Practical Application

The reason this distinction mattered so much in Schiro is the same reason clients frequently come to us: whether a law is procedural or substantive determines whether it can be retroactively applied. As we recently discussed, in the context of §2255 motions, SCOTUS can allow new constitutional rulings to apply retroactively. This means that if the Court issues a ruling that would have reduced your sentence had it been in effect at the time of your original conviction, you may be able to petition a lower court to reconsider your sentence. But retroactivity applies only to substantive and not procedural issues: with few exceptions, only a substantive ruling can be deemed a “new” constitutional law that applies retroactively. In these cases, whether a law was substantive or procedural can result in shaving years off of a sentence.

For instance, if a new statute was ruled unconstitutional after your conviction became final, retroactivity applies, and you might be able to petition a court to reduce or overturn your sentence. But if your conviction was based on illegally-obtained evidence, this is a matter of procedure, and you can not gain the benefit of a retroactive ruling – even if it’s one that would have resulted in a lesser sentence. This was the issue the Court analyzed in the Schiro case when it held that Ring does not apply retroactively to cases on direct review.

Questions about Your Appeal?

Appeals frequently address procedural issues because unfortunately, there are many different ways a trial (or even the events leading to your arrest in the first place) can go awry. If evidence was let in at trial that never should have been (i.e., it was the fruit of an unlawful search and seizure), then that means a jury made a decision about your guilt or innocence based on something they never should have seen. 

Federal Criminal Defense and federal §2255 habeas corpus lawyer Elizabeth Franklin-Best can help you sift through the issues impacting your freedom. If you need help preparing for a motion in federal court, including a federal criminal appeal, we want to help. For more information, you may contact us by calling (803) 445-1333 or sending us an email to schedule a case consultation.