Desist v. United States/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

It is a mystery to me why Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, which was given retroactive effect to petitioner Katz will not be given retroactive effect to petitioner Desist and his copetitioners. That does not seem to me to be the administration of justice with an even hand. I would understand today's ruling if in Katz we had announced a new constitutional search-and-seizure rule to be applied prospectively in all cases. But we did not do that; nor did we do it in other recent cases announcing variations of old constitutional doctrine. The most notorious example is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, where, as I recall, some 80 cases were presented raising the same question. We took four of them and held the rest and then disposed of each of the four, applying the new procedural rule retroactively. But as respects the rest of the pending cases we denied any relief. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Yet it was sheer coincidence that those precise four were chosen. Any other single case in the group or any other four would have been sufficient for our purposes.

All this, and more, was stated by Mr. Justice Black in his dissent in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, in which I concurred. It is stated again with clarity and vigor by Mr. Justice HARLAN in today's dissent, Part I of which I join. It still remains a mystery how some convicted people are given new trials for unconstitutional convictions and others are kept in jail without any hope of relief though their complaints are equally meritorious. At least the Court should not say as respects Katz that it is given 'wholly prospective application,' when it was made retroactive in his case.

The pretense that we were bound in Katz to apply the new rule retroactively to that defendant or not decide the case at all, is too transparent to need answer. See 1 B. J. Moore, Federal Practice 191 (2d ed. 1965); 1 K. Davis, Administrative Law Treatise § 5.09 (1958); Levy, Realist Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1, 15; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 216-234 (1965).

In Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882, where we announced that the rule in Miranda should apply only to cases commenced after that decision had been announced, we said:

'there are no jurisprudential or constitutional obstacles to     the rule we are adopting here. * *  * In appropriate prior      cases we have already applied new judicial standards in a      wholly prospective manner. See England v. Louisiana State     Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11     L.Ed.2d 440 (1964); James v. United States, 366 U.S. 213, 81      S.Ct. 1052, 6 L.Ed.2d 246 (1961).'

Where the spirit is strong, there has heretofore been no impediment to producing only dictum through a 'case or controversy.' Indeed that tradition started with Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60.