Mackey v. United States (401 U.S. 667)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I had assumed that all criminal and civil decisions involving constitutional defenses which go in favor of the defendant were necessarily retroactive. That is to say, the Constitution has from Chief Justice Jay's time been retroactive, for there were no decisions on the points prior thereto. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, exonerated defendants who, when they failed to file returns, were not by reason of United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, entitled to a constitutional immunity. Why Marchetti and Grosso are entitled to relief and Mackey is not, is a mystery. It is said that Mackey's gambling return, 'like physical evidence seized in violation of a new interpretation of the Fourth Amendment, is concededly relevant and probative even though obtained by the Government through means since defined by this Court as constitutionally objectionable.' The same could be said of Marchetti and Crosso. Yet their convictions were reversed.

I could understand today's decision if Marchetti and Grosso had announced only a prospective rule applicable to all like defendants. But when the defendants in those cases are given the benefit of a new constitutional rule forged by the Court, it is not comprehensible, if justice rather than the fortuitous circumstances of the time of the trial is the standard, why all victims of the old unconstitutional rule should not be treated equally.

I can find nothing in the Constitution that authorizes some constitutional rules to be prospective and others to be retroactive. The majority often says the test is whether a new rule affects the integrity of the factfinding process, Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248. Yet even that test is not applied when the majority thinks that the impact of the new rule, if applied with due regard to the Equal Protection Clause, would be 'devastating.' Tehan v. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15 L.Ed.2d 453. The Constitution grants this Court no such legislative powers.

My views have been expressed in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, and Johnson v. New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772, 1783, 16 L.Ed.2d 882, and I adhere to them. I would continue to construe all constitutional safeguards 'strictly.'