The United States brought this action for the forfeiture of
money in the possession of one Angelini when he was arrested for
failing to register as a gambler and to pay the gambling tax
required by 26 U.S.C. §§ 4411, 4412, and 4901. Having found that
the money had been used in violation of those laws, the District
Court ordered forfeiture under 26 U.S.C. § 7302. After the Court of
Appeals affirmed, the case was remanded for further consideration
in the light of this Court's subsequent decisions in
Marchetti
v. United States, 390 U. S. 39, and
Grosso v. United States, 390 U. S. 62, which
held that gamblers had the Fifth Amendment right to remain silent
despite the statutory requirement that they submit reports that
could incriminate them. The Court of Appeals thereafter ordered the
money's return, having concluded that Angelini could assert his
Fifth Amendment privilege. The Government contends that (1) the
Marchetti-Grosso rationale is inapplicable to § 7302
forfeiture proceedings because, under that provision, "any property
intended for use in violating the . . . internal revenue laws" is
subject to forfeiture regardless of the property owner's guilt, and
(2)
Marchetti and
Grosso should not be given
retroactive effect.
Held:
1. The Fifth Amendment privilege may properly be invoked in this
case, since the forfeiture statutes, when viewed in their entirety,
are intended to penalize only persons significantly involved in a
criminal enterprise. Pp.
401 U. S.
717-722.
2. The
Marchetti-Grosso rule has retroactive effect in
a forfeiture proceeding under § 7302. Pp.
401 U. S.
722-724.
393 F.2d 499, affirmed.
HARLAN, J., delivered the opinion of the Court, in which BLACK,
DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. BLACK, J., filed a
concurring statement,
post, p.
401 U. S. 724.
BRENNAN, J., filed a concurring opinion,
post, p.
401 U. S. 724.
WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and
STEWART and BLACKMUN, JJ., joined,
post, p.
401 U. S.
730.
Page 401 U. S. 716
MR. JUSTICE HARLAN delivered the opinion of the Court.
After Donald J. Angelini had been convicted of failing to
register as a gambler and to pay the related gambling tax required
by federal law, 26 U.S.C. §§ 4411, 4412, 4901, the United States
instituted the forfeiture proceeding to obtain $8,674 which
Angelini had in his possession at the time of his arrest. The
District Court for the Northern District of Illinois found that the
money was being used in a bookmaking operation in violation of
these internal revenue laws, and ordered forfeiture under 26 U.S.C.
§ 7302, which provides:
"It shall be unlawful to have or possess any property intended
for use in violating the provisions of the internal revenue laws .
. . and no property rights shall exist in any such property. . .
."
When the Court of Appeals affirmed, we granted certiorari,
sub nom. Angelini v. United States, 390 U.
S. 204, and remanded the case for further consideration
in the light of our decisions in
Marchetti v. United
States, 390 U. S. 39
(1968), and
Grosso v. United States, 390 U. S.
62 (1968), which precluded the criminal conviction of
gamblers who properly assert
Page 401 U. S. 717
their privilege against self-incrimination as a ground for their
failure to comply with these aspects of the gambling tax law. A
unanimous panel of the Court of Appeals concluded that Angelini
might properly assert his Fifth Amendment privilege in this
forfeiture proceeding, and ordered the return of the seized money.
393 F.2d 499 (1968). Since the Court of Appeals for the Sixth
Circuit subsequently came to the opposite conclusion, [
Footnote 1] we granted the Government's
petition for certiorari in the present case, 393 U.S. 949 (1968),
in order to resolve the conflict. The case was first argued at the
1968 Term, and reargued at the current Term. We now affirm the
decision below.
I
The Government's principal argument turns upon an exceedingly
narrow construction of our decisions in
Marchetti and
Grosso. In those cases, we took pains to make it clear
that the Court in no way doubted the Government's power to assess
and collect taxes on unlawful gambling activities. It was only the
method Congress had adopted in collecting the tax that raised the
Fifth Amendment question. The statute commanded that gamblers
submit special registration statements and tax returns that
contained information which could well incriminate them in many
circumstances. Because the risk of self-incrimination was
substantial, we held that a Fifth Amendment privilege could be
raised as a defense to a criminal prosecution charging failure to
file the required forms. Since it was only this method of tax
collection which was subject to constitutional objection, we
indicated that the Government remained free to collect taxes due
under the statute so long as it
Page 401 U. S. 718
did not attempt to punish the taxpayer for his failure to file
the required documents.
The Government now relies heavily on the fact that
Marchetti and
Grosso only held that "a claim of
privilege precludes a
criminal conviction premised on
failure to pay the tax." [
Footnote
2] (Emphasis supplied.) It argues that, just as it may collect
taxes in a civil action, the Government may also initiate
forfeiture proceedings -- which are also formally civil in nature
-- without offending
Marchetti and
Grosso. But,
as
Boyd v. United States, 116 U.
S. 616,
116 U. S. 634
(1886), makes clear,
"proceedings instituted for the purpose of declaring the
forfeiture of a man's property
by reason of offences committed
by him, though they may be civil in form, are in their nature
criminal"
for Fifth Amendment purposes. (Emphasis supplied.) From the
relevant constitutional standpoint, there is no difference between
a man who "forfeits" $8,674 because he has used the money in
illegal gambling activities and a man who pays a "criminal fine" of
$8,674 as a result of the same course of conduct. In both
instances, money liability is predicated upon a finding of the
owner's wrongful conduct; in both cases, the Fifth Amendment
applies with equal force.
See also One 1958 Plymouth Sedan v.
Pennsylvania, 380 U. S. 693,
380 U. S. 700
(1965).
The Government does not seriously contend otherwise. Instead, it
places great emphasis on the peculiar nature of the proceedings
authorized under § 7302.
Boyd, we are told, was only
concerned with forfeitures which are imposed "by reason of offences
committed by" the owner. 116 U.S. at
116 U. S. 634.
In the present action, however, the Government contends that the
guilt of the owner of the money is irrelevant. The forfeiture
statute, it is noted, simply authorizes confiscation of "any
property
Page 401 U. S. 719
intended for use in violating the provisions of the internal
revenue laws"; it does not require that Angelini be the one who
possessed the requisite intention. If, for example, Angelini had
left the money in a bookmaker's office without having any reason to
know that illegal activities would take place there, the Government
reads the statute as permitting confiscation if it can be shown
that the bookmaker used Angelini's money in illegal wagering
activities. Since, under the Government's view, the guilt or
innocence of the actual owner of the money is irrelevant in an
action under § 7302, the Government urges that the present
forfeiture should not be considered the result of a "criminal"
proceeding for Fifth Amendment purposes.
If we were writing on a clean slate, this claim that § 7302
operates to deprive totally innocent people of their property would
hardly be compelling. Although it is true that the statute does not
specifically state that the property shall be seized only if its
owner significantly participated in the criminal enterprise, we
would not readily infer that Congress intended a different meaning.
Cf. Morissette v. United States, 342 U.
S. 246 (1952). However, as our past decisions have
recognized, centuries of history support the Government's claim
that forfeiture statutes similar to this one have an
extraordinarily broad scope.
See Goldsmith-Grant Co. v. United
States, 254 U. S. 505
(1921);
United States v. One Ford Coupe, 272 U.
S. 321 (1926). Traditionally, forfeiture actions have
proceeded upon the fiction that inanimate objects themselves can be
guilty of wrongdoing.
See Dobbins' Distillery v. United
States, 96 U. S. 395,
96 U. S.
399-401 (1878);
The Palmyra, 12
Wheat. 1,
25 U. S. 14
(1827). Simply put, the theory has been that, if the object is
"guilty," it should be held forfeit. In the words of a medieval
English writer,
"Where a man killeth another with the sword of John at Stile,
the sword shall be forfeit as deodand, and
Page 401 U. S. 720
yet no default is in the owner. [
Footnote 3]"
The modern forfeiture statutes are the direct descendants of
this heritage, which is searchingly considered by Mr. Justice
Holmes in a brilliant chapter in his book, The Common Law.
[
Footnote 4] The forfeiture
action in the present case was instituted as an
in rem
proceeding in which the money itself is the formal respondent. More
remarkable, the Government's complaint charges the
money
with the commission of an actionable wrong. [
Footnote 5]
It would appear then that history does support the Government's
contention regarding the operation of this forfeiture statute, as
do several decisions rendered by the courts of appeals. [
Footnote 6] But before the Government's
attempt to distinguish the
Boyd case could even begin to
convince, we would first have to be satisfied that a forfeiture
statute, with such a broad sweep, did not raise serious
constitutional questions under that portion of the Fifth Amendment
which commands that no person shall be "deprived of . . . property,
without due process of law; nor shall private property be taken for
public use, without just compensation." Even Blackstone, who is not
known as a biting critic of the English legal tradition, condemned
the seizure
Page 401 U. S. 721
of the property of the innocent as based upon a "superstition"
inherited from the "blind days" of feudalism. [
Footnote 7] And this Court in the past has
recognized the difficulty of reconciling the broad scope of
traditional forfeiture doctrine with the requirements of the Fifth
Amendment.
See, e.g., Goldsmith-Grant Co. v. United States,
supra. Cf. United States v. One Ford Coach,
307 U. S. 219,
307 U. S.
236-237 (1939).
We need not pursue that inquiry once again, however, because we
think that the Government's argument fails on another score. For
the broad language of § 7302 cannot be understood without
considering the terms of the other statutes which regulate
forfeiture proceedings. An express statutory provision permits the
innocent owner to prove to the Secretary of the Treasury that the
"forfeiture was incurred without willful negligence or without any
intention on the part of the petitioner . . . to violate the law. .
. ." 19 U.S.C. § 1618. [
Footnote
8] Upon this showing, the Secretary is authorized to return the
seized property "upon such terms and conditions as he deems
reasonable and just." It is not to be presumed that the Secretary
will not conscientiously fulfill this trust, and the courts have
intervened when the innocent petitioner's protests have gone
unheeded.
United States v. Edwards, 368 F.2d 722 (CA4
1966);
Cotonificio Bustese, S.A. v. Morgenthau, 74
App.D.C. 13, 121 F.2d 884 (1941) (Rutledge, J.). When the
forfeiture statutes are viewed in their entirety, it is manifest
that they are intended to impose a penalty only upon those
Page 401 U. S. 722
who are significantly involved in a criminal enterprise
[
Footnote 9] It follows from
Boyd, Marchetti, and
Grosso that the Fifth
Amendment's privilege may properly be invoked in these proceedings.
[
Footnote 10]
II
The Government next contends that, in any event, our decisions
in
Marchetti and
Grosso should not be
retroactively applied to govern seizures of property taking place
before these decisions were handed down on January 29, 1968. It is
said that, in reliance on the Court's earlier decisions in
Kahriger and
Lewis, [
Footnote 11] which upheld the validity of the gambling
tax and registration requirements,
Page 401 U. S. 723
"$6,686,098.22 worth of money and property has been seized under
26 U.S.C. 7302." Brief for the United States 32-33. The Solicitor
General concedes, however, that this figure overestimates the
Government's stake in the retroactivity question since "there are
no reliable statistics indicating what percentage [of the property
seized] was eventually returned to claimants" who proved to the
Secretary of the Treasury that they were not significantly involved
in criminal gambling activities.
Id. at 33. Nevertheless,
the Government contends that simply because some litigation may be
anticipated as gamblers attempt to reclaim their property, the
retroactive effect of the new rule should be limited.
We cannot agree. Unlike some of our earlier retroactivity
decisions, we are not here concerned with the implementation of a
procedural rule which does not undermine the basic accuracy of the
factfinding process at trial.
Linkletter v. Walker,
381 U. S. 618
(1965);
Tehan v. Shott, 382 U. S. 406
(1966);
Johnson v. New Jersey, 384 U.
S. 719 (1966);
Stovall v. Denno, 388 U.
S. 293 (1967). Rather,
Marchetti and
Grosso dealt with the kind of conduct that cannot
constitutionally be punished in the first instance. These cases
held that gamblers in Angelini's position had the Fifth Amendment
right to remain silent in the face of the statute's command that
they submit reports which could incriminate them. In the absence of
a waiver of that right, such persons could not properly be
prosecuted at all.
Given the aim of the
Marchetti-
Grosso rule, it
seems clear that the Government must be required to undergo the
relatively insignificant inconvenience involved in defending any
lawsuits that may be anticipated. Indeed, this conclusion follows
a fortiori from those decisions mandating the retroactive
application of those new rules which substantially improve the
accuracy of the
Page 401 U. S. 724
factfinding process at trial. [
Footnote 12] In those cases, retroactivity was held
required because the failure to employ such rules at trial meant
there was a significant chance that innocent men had been
wrongfully punished in the past. In the case before us, however,
even the use of impeccable factfinding procedures could not
legitimate a verdict decreeing forfeiture, for we have held that
the conduct being penalized is constitutionally immune from
punishment. No circumstances call more for the invocation of a rule
of complete retroactivity. [
Footnote 13]
Affirmed.
MR. JUSTICE BLACK concurs in the Court's judgment and the
opinion so far as it goes. He would go further, and now overrule
Linkletter v. Walker, 381 U. S. 618
(1965), and its progeny.
[
Footnote 1]
United States v. One 1965 Buick, 392 F.2d 672,
rehearing denied, 397 F.2d 782.
[
Footnote 2]
Grosso v. United States, 390 U.S. at
390 U. S. 70 n.
7;
see also Marchetti v. United States, 390 U.S. at
390 U. S. 41-42,
390 U. S.
61.
[
Footnote 3]
Quoted from O. Holmes, The Common Law 23 (M. Howe ed.1963).
[
Footnote 4]
Holmes,
supra, n 3,
Lecture 1.
[
Footnote 5]
The libel charged that:
"On one or more of the aforementioned dates . . . aforesaid,
respondents [
i.e., the money] had been used and were
intended to be used in violation of the Internal Revenue Laws of
the United States of America. . . . WHEREFORE, FRANK E. McDONALD,
United States Attorney for the Northern District of Illinois . . .
prays . . . That aforesaid respondents be adjudged and decreed
forfeited to the UNITED STATES OF AMERICA."
App. 5-6.
[
Footnote 6]
United States v. Bride, 308 F.2d 470 (CA9 1962);
United States v. One 1958 Pontiac Coupe, 298 F.2d 421 (CA7
1962);
cf. United States v. One 1957 Oldsmobile
Automobile, 256 F.2d 931 (CA5 1958).
[
Footnote 7]
1 W. Blackstone, Commentaries, c. 8, *300.
[
Footnote 8]
Although this statute appears in Title 19, regulating
forfeitures under the customs laws, 26 U.S.C. § 7327 provides
that:
"The provisions of law applicable to the remission or mitigation
by the Secretary or his delegate of forfeitures under the customs
laws shall apply to forfeitures incurred or alleged to have been
incurred under the internal revenue laws."
[
Footnote 9]
It is noteworthy that the libel instituted by the United States
made claim to the $8,674 because "a business was
being operated
by Donald Angelini, in violation of [the gambling tax
provisions]," App. 5 (emphasis supplied), and that the evidence
introduced at trial was consistent only with this theory of
liability.
[
Footnote 10]
In the present case, the Government has not suggested that the
Fifth Amendment provides Angelini with a defense only with respect
to his failure
to file the required registration and tax
forms, and that the gambler's failure
to pay the required
tax may still be punished consistently with
Marchetti and
Grosso. This argument was properly abandoned by the
Solicitor General on reargument in
Marchetti and
Grosso, see Brief for the United States on Reargument
37-41,
Marchetti v. United States and
Grosso v. United
States, supra, and we held in
Grosso that,
"[a]lthough failures to pay the excise tax and to file a return
are separately punishable under 26 U.S.C. § 7203, the two
obligations must be considered inseparable for purposes of
measuring the hazards of self-incrimination which might stem from
payment of the excise tax."
390 U.S. at
390 U. S. 65.
Similarly,
Marchetti ruled that:
"The statutory obligations to register and to pay the
occupational tax are essentially inseparable elements of a single
registration procedure."
390 U.S. at
390 U. S. 42-43,
and see n 3.
Consequently, it appears clear that the Fifth Amendment provides
gamblers in Angelini's position with a complete defense.
[
Footnote 11]
United States v. Kahriger, 345 U. S.
22 (1953);
Lewis v. United States, 348 U.
S. 419 (1955).
[
Footnote 12]
See, e.g., Roberts v. Russell, 392 U.
S. 293 (1968);
McConnell v. Rhay, 393 U. S.
2 (1968);
Arsenault v. Massachusetts,
393 U. S. 5 (1968);
Berger v. California, 393 U. S. 314
(1969).
[
Footnote 13]
In the view of the writer of this opinion, the fact that this
case had not become final by the time of this Court's decisions in
Marchetti and
Grosso suffices, without more, to
require rejection of the Government's contention respecting
nonretroactivity.
See, e.g., Desist v. United States,
394 U. S. 244,
394 U. S. 256
(HARLAN, J., dissenting), and
Mackey v. United States,
ante, p.
401 U. S. 675
(HARLAN, J., concurring in judgments and dissenting).
MR. JUSTICE BRENNAN, concurring.
I join the opinion of the Court. The dissent would have us hold
that the Government may continue indefinitely to enforce criminal
penalties against individuals who had the temerity to engage in
conduct protected by the Bill of Rights before the day that this
Court held the conduct protected. Any such holding would have no
more support in reason than it does in our cases.
Page 401 U. S. 725
I
Frank recognition of the possible impact of retroactive
application of constitutional decisions on the administration of
criminal justice has led this Court to establish guidelines to
determine the retroactivity of "constitutional rules of criminal
procedure."
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 296
(1967). Since
"[e]ach constitutional rule of criminal procedure has its own
distinct functions, its own background of precedent, and its own
impact on the administration of justice,"
the
"retroactivity or nonretroactivity of a rule is not
automatically determined by the provision of the Constitution on
which the dictate is based."
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 728
(1966). But, although
[t]he extent to which a condemned practice infects the integrity
of the truth-determining process at trial is a "question of
probabilities,"
Stovall v. Denno,388 U.S. at
388 U. S. 298,
quoting
Johnson v. New Jersey, 384 U.S. at
384 U. S. 729,
as a general matter,
"[w]here the major purpose of new constitutional doctrine is to
overcome an aspect of the criminal trial which substantially
impairs its truthfinding function and so raises serious questions
about the accuracy of guilty verdicts in past trials, the new rule
has been given complete retroactive effect."
Williams v. United States, ante at
401 U. S.
653.
"Neither good faith reliance by state or federal authorities on
prior constitutional law or accepted practice, nor severe impact on
the administration of justice has sufficed to require prospective
application in these circumstances."
Ibid. *
Page 401 U. S. 726
The reasoning that underlies these guidelines is clear. The
States and the Federal Government have, of course, a legitimate
interest in the evenhanded enforcement of such sanctions as they
desire to impose upon any conduct that they may constitutionally
prohibit. By definition, a "new rule of criminal procedure" casts
no doubt upon the power of government to punish certain conduct,
but only upon the legitimacy of the process by which persons were
found to have engaged in that conduct. Of course, a government has
no legitimate interest in upholding an unconstitutional system of
criminal procedure. But accepting the results that an
unconstitutional procedure has reached in the past does not uphold
such a system for the future. Notwithstanding the new procedural
rule, the government retains a legitimate interest in sanctioning
conduct that it may constitutionally prohibit. Accordingly, when a
new procedural rule has cast no substantial doubt upon the
reliability of determinations of guilt in criminal cases, we have
denied the rule retroactive effect where a contrary decision
would
"impose a substantial burden [of retrials] upon the . . .
judicial system . . . while serving neither to redress knowing
violations of [constitutional rights] nor to protect a class of
persons the government has no legitimate interest in
punishing."
Williams v. United States, ante at
401 U. S. 664
(BRENNAN, J., concurring in result);
see Desist v. United
States, 394 U. S. 244
(1969). But since the government has no legitimate interest in
punishing those innocent of wrongdoing,
cf. Thompson v.
Louisville, 362 U. S. 199
(1960), when a new procedural rule casts doubt upon the reliability
of a substantial proportion of past convictions obtained without
its protections, we have required the new rule be given full
retroactive effect.
Williams v. United States, ante at
401 U. S. 653.
From this it follows
a fortiori that a decision holding
certain conduct beyond the power of government
Page 401 U. S. 727
to sanction or prohibit must be applied to prevent the
continuing imposition of sanctions for conduct engaged in before
the date of that decision. For the decision does far more than cast
doubt upon the reliability of the guilt-determining process. It
makes the question of reliability irrelevant, for it establishes
beyond peradventure that the government has no legitimate interest
in punishing such conduct at all.
See Ex parte Siebold,
100 U. S. 371,
100 U. S.
376-377 (1880). Accordingly, it may no longer continue
to punish it.
II
The dissent seeks to explain its view of this case on the ground
that, even after this Court has declared certain individual conduct
beyond the power of government to prohibit, the government retains
an "interest in maintaining the rule of law and in demonstrating
that those who defy the law do not do so with impunity" by
punishing those persons who engaged in constitutionally protected
conduct before it was so declared by this Court.
Post at
401 U. S. 735.
This argument, of course, has nothing whatever to do with the rule
of law. It exalts merely the rule of judges by approving punishment
of an individual for the lese-majeste of asserting a constitutional
right before we said he had it. In light of our frequent
reiteration that the usual mode of challenging an unconstitutional
statute is expected to be violation of the statute and adjudication
of the constitutional challenge in a criminal proceeding,
see,
e.g., Douglas v. City of Jeannette, 319 U.
S. 157,
319 U. S. 163
(1943);
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
484-485 (1965), it is difficult to see how this argument
amounts to more than a flat statement that those who assert their
constitutional rights before we have declared them may not do so
with impunity.
Page 401 U. S. 728
If the dissent today means what it says, it would appear to
follow that Virginia might keep in jail interracial married couples
whose only offense was cohabitation within the State, so long as
the cohabitation was prior to
Loving v. Virginia,
388 U. S. 1 (1967);
or that Arkansas could still discharge school teachers who taught
evolution before we struck down the relevant statute in
Epperson v. Arkansas, 393 U. S. 97
(1968). Of course, the dissenters would never uphold such action.
But if there is any distinction between these cases and the case at
bar, it can only be that Angelini is asserting his privilege
against self-incrimination, rather than a right under the First or
Fourteenth Amendment. Whatever may be the relevance of the source
of a new constitutional rule in determining the extent to which it
affects the reliability of the factfinding process at trial,
however, there is no justification for allowing the government
greater power to vindicate its nonexistent interest in enforcing an
unconstitutional statute that punishes assertion of the privilege
against self-incrimination than to vindicate its interest in
enforcing a statute that punishes the assertion of any other
constitutional right.
APPENDIX TO OPINION OF BRENNAN, J., CONCURRING
Our cases show little deviation from the principle that new
constitutional rules of criminal procedure that affect the
integrity of the factfinding process will, in general, be
retroactively applied. In
Tehan v. Shott, 382 U.
S. 406 (1966), we denied retroactive effect to
Griffin v. California, 380 U. S. 609
(1965), despite our recognition that the privilege against
self-incrimination which
Griffin protected did in some
circumstances serve as an adjunct to truth. 382 U.S. at
382 U. S.
414-415, n. 12, quoting
Murphy v. Waterfront
Comm'n, 378 U. S. 52,
378 U. S. 55
(1964). But, in
Tehan, we noted specifically that the
privilege
Page 401 U. S. 729
against self-incrimination is not primarily "an adjunct to the
ascertainment of truth," 382 U.S. at
382 U. S. 416,
and emphasized as well that retroactive application of
Griffin would, in the States concerned, "have an impact
upon the administration of their criminal law so devastating as to
need no elaboration."
Id. at
382 U. S. 419.
Similarly, in
Johnson v. New Jersey, 384 U.
S. 719 (1966), we denied retroactive effect to
Escobedo v. Illinois, 378 U. S. 478
(1964), and
Miranda v. Arizona, 384 U.
S. 436 (1966), notwithstanding our recognition that the
principles announced in those cases would in some circumstances
guard against the possibility of unreliable confessions. 384 U.S.
at
384 U. S. 730.
But we emphasized in
Johnson that strict
pre-
Miranda standards were available to those desiring to
test the admissibility of confessions,
ibid., as well as
pointing out the severe impact that retroactivity would have on
state criminal processes.
Id. at
384 U. S.
731-732. In
Stovall v. Denno, 388 U.
S. 293 (1967), we denied retroactive effect to
United States v. Wade, 388 U. S. 218
(1967), and
Gilbert v. California, 388 U.
S. 263 (1967), because of uncertainty about the
frequency with which violation of the rule there announced would
actually result in injustice, the availability of a due process
standard to remedy at least the more serious injustices, and the
"unusual force of the countervailing considerations."
Stovall
v. Denno, 388 U.S. at
388 U. S. 299. Finally, in
DeStefano v. Woods,
392 U. S. 631
(1968), we denied retroactive effect to
Duncan v.
Louisiana, 391 U. S. 145
(1968), and
Bloom v. Illinois, 391 U.
S. 194 (1968), holding respectively that the States must
afford criminal defendants a jury trial on demand in serious
criminal cases, and that the right to jury trial extends to trials
for serious criminal contempts. As to
Duncan,
retroactivity was denied because we considered that there was
little likelihood that bench trials, as a whole, would be unfair,
and because retroactive application could in some States
Page 401 U. S. 730
reopen every conviction for serious crime. 392 U.S. at
392 U. S.
633-634. As to
Bloom, we recognized that one
ground for the result was
"the belief that contempt trials, which often occur before the
very judge who was the object of the allegedly contemptuous
behavior, would be more fairly tried if a jury determined
guilt."
Id. at
392 U. S. 634.
But the firm tradition of nonjury trials in contempt cases,
combined with the adverse impact of retroactivity on the
administration of justice, combined to persuade us that
Bloom should be applied prospectively only.
Id.
at
392 U. S.
634-635. In addition, it should be noted that this Court
has not been hesitant to reverse contempt convictions because of
the possibility of involvement on the part of the judge.
See
Mayberry v. Pennsylvania, 400 U. S. 455
(1971), and cases cited.
Examination of these cases, therefore, indicates that, in all
cases save
DeStefano/Bloom, we regarded as relatively
small the likelihood that noncompliance with the new rule would
have resulted in serious injustice in any past cases. Moreover, in
all cases save
Tehan and
DeStefano/Duncan,
alternative methods were still available to those who could
demonstrate that the feared injustice had in fact, resulted. Taken
in combination, these factors lead me to conclude that the cases
discussed in this Appendix do not undercut the force of the
proposition at issue.
* The few cases in which we have recognized that a new
constitutional rule may in some circumstances improve the accuracy
of the factfinding process, while at the same time denying
retroactive application to that rule, do not, in my view, undercut
the force of thee statements. The relevant cases are collected and
discussed in an Appendix to this opinion,
infra, p.
401 U. S.
728.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE BLACKMUN join, dissenting.
I
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
Page 401 U. S. 731
was subject to criminal penalties for the default; and
United States v. Kahriger, 345 U. S.
22 (1953), and
Lewis v. United States,
348 U. S. 419
(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
(1968), and
Grosso v. United States, 390 U. S.
62 (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
(1965), to
Williams v. United States, ante, p.
401 U. S. 646,
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
Page 401 U. S. 732
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
Page 401 U. S. 733
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.
II
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.
Shott, 382 U. S. 406
(1966), and
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 732
(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,
Page 401 U. S. 734
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,
ante, p.
401 U. S. 667, 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.
Page 401 U. S. 735
III
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 (1934);
Massey v. United States,
291 U. S. 608
(1934);
United States v.
Tynen, 11 Wall. 88 (1871);
Yeaton v.
United States, 5 Cranch 281 (1809);
In re
Kline, 70
Page 401 U. S. 736
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 (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). [
Footnote 2/1] Today, 46 States, as well as
the Federal Government,
Page 401 U. S. 737
make provision for saving pending criminal prosecutions from the
repeal of the underlying statute. [
Footnote 2/2] The prevailing legislative policy and
positive law thus
Page 401 U. S. 738
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
Page 401 U. S. 739
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. [
Footnote 2/3]
Page 401 U. S. 740
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
Page 401 U. S. 741
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
(1913);
Norton v. Shelby County, 118 U.
S. 425 (1886);
Ex parte Siebold, 100 U.
S. 371,
100 U. S. 376
(1880). [
Footnote 2/4] But this
view has not prevailed. In
Gelpcke v. City of
Dubuque, 1 Wall. 175,
68 U. S. 206
(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.
[
Footnote 2/5] "
Page 401 U. S. 742
Great Northern R. Co. v. Sunburst Oil & Refining
Co., 287 U. S. 358
(1932), [
Footnote 2/6] 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
(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
District,
Page 401 U. S. 743
298 U. S. 513
(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
308 U. S. 374.
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,
381 U. S.
622-629 (1965), and has been invoked since
Linkletter. [
Footnote 2/7]
It was against this background that
Page 401 U. S. 744
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.
[
Footnote 2/1]
In a letter to the Speaker of the House of Representatives in
support of this broadening amendment, Attorney General Biddle
referred to the common law rule as a
"deficiency [which] has been cured as concerns offenses
cognizable under a statute that has been expressly repealed, as
distinguished from one that expires by its own terms."
See H.R.Rep. No. 261, 78th Cong., 1st Sess., 1 (1943).
He then indicated that there was doubt about whether the general
saving provision identical to that enacted in 1871 (by then 1
U.S.C. § 29 (1940 ed.)) applied to violations of temporary statutes
that expired before prosecutions could be concluded. The Attorney
General next stated that a number of wartime statutes of a
temporary nature had been enacted, and that, to forestall questions
about their enforceability after expiration,
"it appears desirable to enact legislation which would expressly
permit prosecutions after the lapse of such temporary statutes for
violations committed while the act is in force."
H.R.Rep. No. 261,
supra, at 2.
[
Footnote 2/2]
The 46 States are: Alabama: Ala.Code, Tit. 1, § 11 (1958);
Alaska: Alaska Stat. §01.05.021 (1962); Arizona: Ariz.Rev.Stat.Ann.
§§ 1-246, 1-247 (1956);
see also id. §§ 1-244, 1-249;
Arkansas: Ark.Stat.Ann. § 1-103 (1947); California: Cal.Govt.Code §
9608 (1966); Colorado: Colo.Rev.Stat.Ann. §§ 135-1-7, 135-4-7
(1963); Connecticut: Conn.Gen.Stat.Rev. § 54-194 (1968); Florida:
Fla.Const., Art. 10, § 9; Georgia: Ga.Code Ann. § 26-103 (1953);
Hawaii: Hawaii Rev.Laws § 1-11 (1968); Idaho: Idaho Code § 67-513
(1947); Illinois: Ill.Rev.Stat., c. 131, § 4 (1969); Indiana:
Ind.Ann.Stat. §§ 1-303, 1-307 (1967); Iowa: Iowa Code § 4.1(1)
(1971); Kansas: Kan.Stat.Ann. § 77-201 (1969); Kentucky:
Ky.Rev.Stat. § 446.110 (1962); Louisiana: La.Rev.Stat. § 24:171
(1950); Maine: Me.Rev.Stat.Ann., Tit. 1, § 302 (Supp. 1970-1971);
Maryland: Md.Ann.Code, Art. 1, § 3 (1957); Massachusetts:
Mass.Gen.Laws Ann., c. 4, § 6 (1966); Michigan: Mich.Comp.Laws §
8.4a (1948); Minnesota: Minn.Stat. § 645.35 (1967); Mississippi:
Miss.Code Ann. § 2608 (1957); Missouri: Mo.Rev.Stat. § 1.160
(1969); Montana: Mont.Rev.Codes Ann. § 43-514 (1961); Nebraska:
Neb.Rev.Stat. § 49-301 (1968); Nevada: Nev.Rev.Stat. § 169.235
(1968); New Hampshire: N.H.Rev.Stat.Ann. § 21:38 (1955); New
Jersey: N.J.Rev.Stat. § 1:1-15 (1937); New Mexico: N.M.Const., Art.
4, § 33; New York: N.Y.Gen.Constr.Law § 94 (1951); North Carolina:
N.C.Gen.Stat. §§ 164-4, 164-5 (1964); North Dakota: N.D.Cent.Code §
1-02-17 (1959) (saves penalties, fines, liabilities, or forfeitures
incurred under a repealed statute and provides that the repealed
act remains in force for the purpose of enforcing such fines,
penalties, or forfeitures; however, unless the repealing statute
expressly provides otherwise, in cases tried both before and after
the repeal, the repealing statute has the effect of "extinguishing
any jail or prison sentence that may be, or that has been, imposed
by reason of said law. . . ."
Ibid.; but see In re
Chambers, 69 N.D. 309, 285 N.W. 862 (1939), where the court
held that, insofar as § 1-02-17 purported to extinguish prison
sentences imposed after trial which preceded the effective date of
the repealing statute, the section was unconstitutional under
N.D.Const. § 76, which vests power to pardon in the Governor and
the board of pardons); Ohio: Ohio Rev.Code Ann. § 1.20 (1969);
Oklahoma: Okla.Const., Art. 5, § 54; Oregon: Ore.Rev.Stat. §
161.040 (1967); Rhode Island: R.I.Gen.Laws Ann. § 43-3-23 (1956);
South Dakota: S.D.Compiled Laws Ann. § 2-14-18 (1967); Tennessee:
Tenn.Code Ann. § 1-301 (1955); Utah: Utah Code Ann. § 68-3-5
(1968); Vermont: Vt.Stat.Ann., Tit. 1, § 214 (Supp. 1970);
Virginia: Va.Code Ann. § 1-16 (1950); Washington: Wash.Rev.Code §
10.01.040 (1956); West Virginia: W.Va.Code Ann. § 2-2-8 (1966);
Wisconsin: Wisc.Stat. § 990.04 (1967); Wyoming: Wyo.Stat.Ann. §
8-21 (1957).
Of the four other States, Delaware has a provision, but it
applies only to save prosecutions for any offenses committed under
laws repealed when the State's comprehensive Code of 1953 was
adopted. Del.Code Ann., Tit. 1, § 104 (1953).
See also
Pa.Stat.Ann., Tit. 46, § 596 (1969), a general saving provision
applicable only to repeal of "civil provisions." However, under
Pa.Stat.Ann., Tit. 46, § 582, if the repeal of a penal statute is
accompanied by a reenactment at the same time of the repealed law's
provisions in "substantially the same terms," a prosecution will be
saved.
See Commonwealth v. Davis, 4 Pa. D. & C.2d 182
(1954). Tex. Pen.Code, Art. 14.16 (1952), provides:
"The repeal of a law where the repealing statute substitutes no
other penalty will exempt from punishment all persons who may have
violated such repealed law, unless it be otherwise declared in the
repealing statute."
But Tex. Pen.Code, Art. 17.19 saves prosecutions for offenses
committed under statutes repealed when the new Penal Code took
effect. South Carolina apparently has no general saving provision
applicable to criminal prosecutions.
[
Footnote 2/3]
United States v. Reisinger, 128 U.
S. 398 (1888) (enforcing one of the predecessors of 1
U.S.C. § 109);
Allen v. Grand Central Aircraft Co.,
347 U. S. 535,
347 U. S.
553-555 (1954);
Moorehead v. Hunter, 198 F.2d
52 (CA10 1952);
Lovely v. United States, 175 F.2d 312,
316-318 (CA4 1949);
Rehberg v. United States, 174 F.2d 121
(CA5 1949);
Ladner v. United States, 168 F.2d 771 (CA5
1948). 1 Sutherland, Statutory Construction § 2048 (1943 ed.).
See also Fleming v. Mohawk Wrecking Lumber Co.,
331 U. S. 111,
331 U. S. 119
(1947);
Duffel v. United States, 95 U.S.App.D.C. 242, 221
F.2d 523 (1954);
cf. United States v. Curtiss-Wright Export
Corp., 299 U. S. 304,
299 U. S.
331-333 (1936);
United States v. Hark,
320 U. S. 531
(1944) (reversing an order quashing an indictment charging
violation of maximum price regulation that had been revoked prior
to the date the indictment was returned on the ground that the
statute under which the regulation was issued remained in effect
after revocation).
In
United States v. Chambers, 291 U.
S. 217 (1934), this Court was faced with the question of
what effect repeal of the Eighteenth Amendment by the Twenty-first
Amendment on December 5, 1933, would have on criminal prosecutions
continued or begun under the National Prohibition Act after the
repealing amendment had been ratified. In an opinion by Chief
Justice Hughes, the Court applied the common law rule of
Tynen and
Yeaton and held that pending
prosecutions, including those still on direct review, would be
abated. The question of whether the Twenty-first Amendment had any
effect on convictions which had become final before the date of
ratification was specifically reserved. 291 U.S. at
291 U. S. 226.
Thereafter, the courts of appeals held that defendants whose
convictions had become final before the Twenty-first Amendment was
ratified had to serve their sentences.
United States ex rel.
Randall v. United States Marshal, 143 F.2d 830 (CA2 1944);
Odekirk v. Ryan, 85 F.2d 313 (CA6 1936);
United States
ex rel. Cheramie v. Dutton, 74 F.2d 740 (CA5 1935),
cert.
denied sub nom. United States ex rel. Cheramie v.
Freudenstein, 295 U.S. 733 (1935);
Rives v. O'Hearne,
64 App.D.C. 48, 73 F.2d 984 (1934);
Moss v. United States,
72 F.2d 30 (CA4 1934);
The Helen, 72 F.2d 772 (CA3 1934)
(common law rule of
Chambers applied to a forfeiture);
United States ex rel. Benton v. Hill, 72 F.2d 826 (CA3
1934);
United States ex rel. Voorhees v. Hill, 72 F.2d 826
(CA3 1934);
United States ex rel. Nerbonne v. Hill, 70
F.2d 1006 (CA3 1934).
In
Chambers, the Court rejected the Government's
suggestion that the general saving provision -- the predecessor of
§ 109 -- supported the continuation of prosecutions pending when
the repealing amendment was ratified. The saving statute was
discussed as passed in recognition of the principle that, unless a
repealed law is "continued in force by competent authority," 291
U.S. at
291 U. S. 224,
repeal halts enforcement. Congress had the power to propose the
Twenty-first Amendment so as to include a saving provision, but not
to vary the amendment's terms once it was adopted. Since, as
adopted, the amendment gave Congress no power to extend the
operation of the National Prohibition Act, which was deprived of
its force by the action of the people in repealing the Eighteenth
Amendment, the Court concluded that the general saving provision
had no application.
Ibid.
There can be no doubt that a Court which had just decided
Great Northern R. Co. v. Sunburst Oil & Refining Co.,
287 U. S. 358
(1932), would consider the judiciary as "competent authority" to
fashion a rule that a statute, though changed by interpretation,
nevertheless remained in force and applicable to events that
transpired before the change occurred.
See nn.
401
U.S. 715fn2/7|>7,
infra, and accompanying text.
[
Footnote 2/4]
In
Norton, Mr. Justice Field declared:
"An unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no office;
it is, in legal contemplation, as inoperative as though it had
never been passed."
118 U.S. at
118 U. S.
442.
[
Footnote 2/5]
The Court so held over the dissent of Mr. Justice Miller, who
said:
"The Supreme Court of Iowa is not the first or the only court
which has changed its rulings on questions as important as the one
now presented. I understand the doctrine to be in such cases not
that the law is changed, but that it was always the same as
expounded by the later decision, and that the former decision was
not, and never had been, the law, and is overruled for that very
reason. The decision of this court contravenes this principle, and
holds that the decision of the court makes the law, and, in fact,
that the same statute or constitution means one thing in 1853, and
another thing in 1859."
1 Wall. at
68 U. S.
211.
See also Loeb v. Columbia Township Trustees,
179 U. S. 472,
179 U. S. 492
(1900);
Douglass v. County of Pike, 101 U.
S. 677,
101 U. S. 687
(1880).
[
Footnote 2/6]
Sunburst rejected the claim that a state court could not
constitutionally refuse to make its ruling retroactive. Mr. Justice
Cardozo held:
"A state in defining the limits of adherence to precedent may
make a choice for itself between the principle of forward operation
and that of relation backward. It may say that decisions of its
highest court, though later overruled, are law nonetheless for
intermediate transactions. Indeed, there are cases intimating, too
broadly, that it
must give them that effect; but never has
doubt been expressed that it
may so treat them if it
pleases, whenever injustice or hardship will thereby be averted. On
the other hand, it may hold to the ancient dogma that the law
declared by its courts had a Platonic or ideal existence before the
act of declaration, in which event the discredited declaration will
be viewed as if it had never been, and the reconsidered declaration
as law from the beginning. The alternative is the same whether the
subject of the new decision is common law or statute. The choice
for any state may be determined by the juristic philosophy of the
judges of her courts, their conceptions of law, its origin and
nature."
287 U. S. 287 U.S.
358, at
287 U. S.
364-365 (citations omitted, footnotes omitted, emphasis
in original).
[
Footnote 2/7]
See City of Phoenix v. Kolodziejski, 399 U.
S. 204,
399 U. S.
213-215 (1970);
Cipriano v. City of Houma,
395 U. S. 701,
395 U. S. 706
(1969);
cf. Tehan v. Shott, 382 U.
S. 406 (1966), where the prosecutor's comment about the
defendant's failure to take the stand was authorized, when made, by
Art. I, § 10, of the Constitution of Ohio and Ohio Rev.Code §
2945.43.