Williams v. United States (401 U.S. 646)/Concurrence Marshall

Mr. Justice MARSHALL, concurring in part and dissenting in part.

After studying afresh the pattern of the Court's retroactivity decisions since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), I conclude that a decision of this Court construing the Constitution should be applied retroactively to all cases involving criminal convictions not yet final at the time our decision is rendered. Sound jurisprudential reasoning, so well articulated by Mr. Justice HARLAN in his separate opinion covering the present cases, 401 U.S. 675, 91 S.Ct. 1171, 28 L.Ed.2d 410, in my view requires that cases still on direct review should receive full benefit of our supervening constitutional decisions. I am persuaded that willingness to tolerate the inevitable costs and anomalies of the Court's current approach to retroactivity is incompatible with the judicial duty of principaled review of convictions not yet final.

I disagree somewhat with Mr. Justice HARLAN as to the proper approach to retroactivity for cases arising on habeas corpus or other modes of collateral attack. In such cases I believe it is best to employ the three-part analysis that the plurality undertakes today in deciding the retroactivity of the rule in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This mode of analysis was foreshadowed in Linkletter, where the question was whether the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, should be applied on collateral review. The method commends itself, once the point of finality after direct review is passed, as a careful and appropriate way of adjudicating the 'procedural' rights of litigants in view of the purposes of a new decisional rule and the concerns of effective law enforcement. In particular, if the purposes of a new rule implicate decisively the basic truth-determining function of the criminal trial, then I believe the rule should be given full retroactive application, for the required constitutional procedure itself would then stand as a concrete embodiment of 'the concept of ordered liberty.' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288 (1937).

In light of the above, I concur in the Court's disposition of No. 82. That case is before us on collateral review. For cases in such a posture the mode of analysis used by the plurality is appropriate, and I agree that the Chimel rule should not be applied retroactively to such cases.

No. 81 is before us on direct review. Since there is a clear violation of Chimel on the facts, I would reverse the judgment below, for I believe that the same constitutional rule should be applied to adjudicate the rights of the petitioner in No. 81 as was applied in Chimel's case.