United States v. United States Coin & Currency/Dissent White

Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join, dissenting.

* None of Angelini's rights under the Fifth Amendment were violated when this forfeiture proceeding was begun and concluded in the District Court. In violation of the Internal Revenue Code, Angelini had failed to register as a gambler and to pay the related gambling tax; he was subject to criminal penalties for the default; and United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), had specifically held that the statutory obligation to file and pay was not compulsory self-incrimination proscribed by the Fifth Amendment. The Amendment at that time afforded Angelini no defense either to a criminal charge for refusal to register and pay or to a forfeiture proceeding based on the same offenses.

After affirmance of the forfeiture judgment in the Court of Appeals, however, our decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), intervened. Kahriger and Lewis were overruled. Obligatory filing and payment were held violative of the Fifth Amendment. It followed that failure to comply with the statute thereafter could not be punished by law. Angelini now claims the benefit of the new constitutional doctrine announced by Marchetti-Grosso.

Of course, we are not free to set aside convictions or forfeitures at will. The forfeiture judgment imposed here must stand unless the Constitution otherwise commands. More specifically, we are empowered to set aside the judgment only if we are constitutionally compelled to give Marchetti and Grosso retroactive application.

It is now firmly settled that the Constitution does not require every new interpretation of the Bill of Rights to be retrospectively applied. The cases from Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), to Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, prove at least this much. They also squarely hold that retroactive sweep of newly announced constitutional doctrine is not required where violation of that doctrine raises no substantial doubts about the factual accuracy of guilty verdicts rendered under previous law. But if the new rule is such that its nonobservance in the past casts substantial doubt on the reliability of prior convictions, all prior verdicts involving such a violation must be set aside regardless of countervailing arguments about the impact on state and federal interests in maintaining criminal judgments.

So far, the Court and I are apparently in complete agreement. But I cannot join the Court in its disposition of this case. The majority's reasoning is simple: If we are required to apply retroactively any new constitutional interpretation casting serious doubt on the accuracy of prior verdicts, we are also compelled to set aside convictions or penalties based on conduct that subsequent decisions-expressly contrary to prior decisions of this Court-hold to be constitutionally protected. If verdicts may not stand where the new rule casts doubt on the integrity of prior trials, surely, it is argued, a judgment such as the one against Angelini must be set aside because there should never have been a trial at all.

But this approach is no more than a beguiling verbalism. There is no doubt in this case that Angelini failed to register, file his returns, and pay his tax; nor is there any suggestion that either Angelini's conviction or the instant forfeiture proceedings were in any way unfair or departed from controlling norms. The argument here is not that new constitutional insight raises doubts whether Angelini committed the acts giving rise to the forfeiture or the accuracy of the procedures employed in determining whether he acted as charged; rather, it is that the forfeiture judgment must be set aside because based on conduct which Marchetti-Grosso have declared to be constitutionally immune. As Angelini would have it, complete retroactivity must always be given to decisions invalidating on constitutional grounds any substantive criminal statute. Any statute defining criminal conduct, if declared unconstitutional is void ab initio.

I fail to find any such command, express or implied, in the Fifth Amendment or in any other provision of the Constitution. Nor does the Court care to explain the result it reaches. It does not embrace the theory that the Constitution must be understood always to have meant what the Court now says it means. It does not deny that this Court makes constitutional law. Nor does it assert that prior interpretations of the Constitution were never valid law and must always be disregarded. But apparently a statute making certain conduct criminal, once invalidated here, was never the law although this Court formerly held that it was and had regularly affirmed convictions under it over explicit constitutional challenge. I am not prepared to agree with this proposition.

Had Angelini registered and paid the federal tax and then been tried prior to Marchetti-Grosso for violating federal interstate gambling laws or state laws making gambling a crime, the admissions contained in his registration and gambling tax returns would have been relevant and presumptively reliable evidence of guilt, properly admissible under Kahriger and Lewis. And if after Marchetti-Grosso, Angelini had complained about the use of this evidence, Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), and Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966), would surely dictate denial of relief whether Angelini came here on direct review of his conviction or from denial of collateral relief.

If we would not upset a conviction where Angelini registered and filed tax returns and these filed statements were used against him in a criminal prosecution, neither should we implement the Marchetti-Grosso reading of the Fifth Amendment by applying it where there has been no self-incrimination but a conviction or forfeiture for failure to register or pay the tax. In Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404, it seems to me that a major predicate for permitting Mackey's gambling tax returns to be used against him in a criminal prosecution was that those returns were not compelled admissions-that Mackey's Fifth Amendment rights were not violated by the statutory requirement to register, file returns, and pay the gambling tax, for that issue was controlled by Kahriger and Lewis, not by Marchetti and Grosso. Angelini is in no better position than was Mackey to argue successfully that the registration statute was invalid when he decided to ignore it or that the statute called for 'compelled' incriminating admissions. To urge that the integrity of the forfeiture proceeding against Angelini is destroyed because Marchetti-Grosso forbade any forfeitures at all is merely to reassert or assume that those decisions must be given retroactive effect. In terms of implementing the purpose of Marchetti and Grosso and the Fifth Amendment, I see no difference between convictions or forfeitures for noncompliance with the statute and those obtained by using the fruits of compliance with that same statute. Angelini's funds were validly and accurately forfeited for failing to file his returns contrary to a statute that this Court had upheld as consistent with the Fifth Amendment. Relief to Angelini would merely remove retroactively a burden on conduct, which when judged by current cases, was an exercise of his self-incrimination privilege, but which when it occurred and under the then-controlling law was a breach of duty he was legally bound to perform.

It is true that if this judgment of forfeiture were affirmed the law would countenance a penalty for past criminal acts that are wholly innocent under the current law. It is also true that when the law no longer censures certain acts, the Government surrenders its interest in deterring prior delinquents or the public generally from engaging in a particular form of conduct that once was criminal but is now unobjectionable behavior. But there remains the interest in maintaining the rule of law and in demonstrating that those who defy the law do not do so with impunity. Clearly, the Constitution does not require the authorities to vindicate this interest upon the demise of a criminal law and some of us may think it unwise to do so. But is the interest so insubstantial that the Constitution forbids a State or the Federal Government from continuing to punish behavior which was once but is not now criminal conduct? I think not.

The question is an old one for both courts and legislatures and my answer is not novel, either in the context of the repeal of a criminal statute or in the context of a court decision overruling a prior case with respect to the constitutionality of a statute.

The common law never attached complete retrospectivity to the repeal of a criminal statute. Absent statutory guidance, the judge-made rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule; but repeal of a statute abated pending prosecutions and required reversal of convictions still on appeal when the law was changed. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); Massey v. United States, 291 U.S. 608, 54 S.Ct. 532, 78 L.Ed. 1019 (1934); United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153 (1871); Yeaton v. United States, 5 Cranch 281, 3 L.Ed. 101 (1809); In re Kline, 70 Ohio St. 25, 70 N.E. 511 (1904); State v. Addington, 2 Bailey (S.C.) 516 (1831); Ex parte Andres, 91 Tex.Cr.R. 93, 237 S.W. 283 (1922); see also 1 Sutherland, Statutory Construction § 2046 (1943 ed.).

The courts nevertheless honored provisions in repealing statutes saving prosecutions and forfeitures for conduct committed while the former statute was in effect. The Irresistible, 7 Wheat. 551, 5 L.Ed. 520 (1822); 1 Sutherland, supra, § 2050. Moreover, in 1871, Congress enacted the following general statute which, among other things, saved ongoing criminal prosecutions from abatement following repeal of a penal statute:

'(T)he repeal of any statute shall not have the effect to     release or extinguish any penalty, forfeiture, or liability      incurred under such statute, unless the repealing act shall      so expressly provide, and such statute shall be treated as      still remaining in force for the purpose of sustaining any      proper action or prosecution for the enforcement of such      penalty forfeiture, or liability.' 16 Stat. 432.

This section was carried forward and eventually broadened by amendment 'to provide that the expiration of a temporary statute shall not have the effect of preventing prosecution of an offense committed under the temporary statute' by making 'applicable to violations of temporary statutes the same rule that is now in effect in respect to offenses against statutes that have been repealed.' H.R.Rep. No. 261, 78th Cong., 1st Sess., 1 (1943). Today, 46 States, as well as the Federal Government, make provision for saving pending criminal prosecutions from the repeal of the underlying statute. The prevailing legislative policy and positive law thus is that neither the repeal of a statute nor the expiration of a temporary act shall release or extinguish penalties, forfeitures, or liabilities incurred under statutes no longer in force. Conduct perfectly innocent under current law is nevertheless punishable if it occurred while a valid criminal statute proscribed it. The courts have regularly enforced 1 U.S.C. § 109, the federal saving statute, never suggesting that it was constitutionally infirm or even fundamentally unfair and frankly recognizing that the Government is free to maintain the integrity of the law by insisting that those who violate it suffer the consequences.

Of course, the case before us does not involve the legislative repeal of an existing criminal statute but a construction of the Fifth Amendment by this Court contrary to past interpretations of that amendment and having the effect of barring enforcement of 26 U.S.C. § 7203 against those refusing to register as gamblers and pay the gambling tax. As to those persons, at least those failing to file and pay after January 29, 1968, 26 U.S.C. § 7203 may not constitutionally be enforced. Does such a declaration concerning a law which this Court had previously validated mean that the law was to this extent void from the moment it was enacted? If so, it would appear that not only should pending prosecutions abate, but also all previous convictions should be vulnerable to habeas corpus petitions alleging that petitioners are in custody pursuant to an unconstitutional law. Or should the statute validated by prior Court decisions be considered a valid law until the date of its invalidation and its demise treated as Congress treats the repeal of a statute?

Neither of these alternatives has found unqualified support in this Court. There are statements in the cases indicating that an unconstitutional law must be treated as having no effect whatsoever from the very date of its enactment. Chicago, I. & L.R. Co. v. Hackett, 228 U.S. 559, 33 S.Ct. 581, 57 L.Ed. 966 (1913); Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886); Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717 (1880). But this view has not prevailed. In Gelpcke v. City of Dubuque, 1 Wall. 175, 206, 17 L.Ed. 520 (1864), the city issued bonds pursuant to legislative authorization that the Iowa Supreme Court had upheld as constitutional. The same court then overruled itself and held the statutory authorization to be void. This Court refused to allow the state court to give retroactive effect to the overruling decision by invalidating the bonds, saying that the legislature could not impair the obligation of an existing contract and that the same principle applies 'where there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere. It is the law of this court.'

Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), was another indication that the Court clearly rejected any all-inclusive principle of retroactivity for court decisions declarative of a change in the law. In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940), this Court was faced with the question whether retroactive effect should be accorded an earlier decision declaring a federal statute unconstitutional, Ashton v. Cameron County Water District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309 (1936). Referring expressly to Norton, Chief Justice Hughes stated that the broad language in that opinion 'must be taken with qualifications.' 308 U.S., at 374, 60 S.Ct., at 318. As he asserted:

'The actual existence of a statute, prior to (a determination     of unconstitutionality), is an operative fact and may have      consequences which cannot justly be ignored. The past cannot     always be erased by a new judicial declaration. The effect of     the subsequent ruling as to invalidity may have to be      considered in various aspects,-with respect to particular      relations, individual and corporate, and particular conduct,      private and official. Questions of rights claimed to have     become vested, of status, of prior determinations deemed to      have finality and acted upon accordingly, of public policy in      the light of the nature both of the statute and of its      previous application, demand examination. These questions are     among the most difficult of those which have engaged the      attention of courts, state and federal, and it is manifest      from numerous decisions that an all-inclusive statement of a      principle of absolute retroactive invalidity cannot be      justified.' Ibid.

This clear rejection of the idea that every decision declaring a statute unconstitutional had retroactive sweep was one of the underpinnings of Linkletter v. Walker, 381 U.S. 618, 622 629, 85 S.Ct. 1731, 1733-1738, 14 L.Ed.2d 601 (1965), and has been invoked since Linkletter. It was against this background that this Court has fashioned rules to deal with the impact on pending and closed criminal cases of decisions that overruled prior decisions construing the various provisions of the Bill of Rights. And it is against this background that I would reverse the judgment of the Court of Appeals.