Prior to the decision in
Mullaney v. Wilbur,
421 U. S. 684,
petitioner was convicted in a North Carolina court of second-degree
murder over his claim that he acted in self-defense. The trial
judge had instructed the jury that, if the State proved beyond a
reasonable doubt that petitioner intentionally killed the victim
with a deadly weapon the law raised presumptions that the killing
was unlawful and that it was done with malice, and that, in order
to excuse his act, petitioner had to prove to the jury's
"satisfaction" that he acted in self-defense. The North Carolina
Supreme Court affirmed over petitioner's objection to such
instructions, refusing to give retroactive application to
Mullaney. Although holding that a burden to "satisfy" a
jury of a fact is not "significantly less" than persuasion by a
preponderance of the evidence, and that therefore the charge was
erroneous under
Mullaney, which required the State to
establish all elements of a criminal offense beyond a reasonable
doubt and which invalidated presumptions that shifted the burden of
proving such elements to the defendant, the court concluded that
the retroactive application of
Mullaney would have a
devastating impact on the administration of justice.
Held:
1. The North Carolina Supreme Court erred in declining to hold
the
Mullaney rule retroactive.
Ivan v. v. City of New
York, 407 U. S. 203.
While, in deciding whether a new constitutional rule is to be
applied retroactively, it is proper to consider the State's
reliance on the old rule and the impact of the new rule on the
administration of justice if the degree to which the new rule
enhances the integrity of the factfinding process is sufficiently
small,
"'where the
major purpose of new constitutional
doctrine is to overcome an aspect of the criminal trial that
substantially impairs its truthfinding function and so raises
serious questions about the accuracy of guilty verdicts in past
trials, the new rule [is] given complete retroactive effect.'"
Id. at
407 U. S. 204
(emphasis supplied). The
Mullaney rule falls within this
latter category, since it was designed to diminish the probability
that an innocent person would be convicted and thus to overcome an
aspect of a criminal trial that "substantially impairs its
truthfinding function." Pp.
432 U. S.
240-244.
2. Nor can the North Carolina Supreme Court's judgment be
affirmed on the ground that, even if
Mullaney is applied
retroactively, the trial
Page 432 U. S. 234
court's instructions left the burden of disproving self-defense
beyond a reasonable doubt on the prosecution, or at least did not
require the accused to prove self-defense by a preponderance of the
evidence, and thus did not violate the
Mullaney rule. The
North Carolina Supreme Court construed the instructions to the
contrary, and since such interpretation is a matter of state law,
there is no basis for disagreeing with it. Pp.
432 U. S.
244-245.
288 N.C. 632,
220 S.E.2d
575, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, BLACKMUN, ad STEVENS, JJ., joined.
BLACKMUN, J., filed a concurring statement, in which BURGER, C.J.,
joined,
post, p.
432 U. S. 245.
MARSHALL, J.,
post, p.
432 U. S. 245,
and POWELL, J.,
post, p.
432 U. S. 246,
filed opinions concurring in the judgment. REHNQUIST, J., took no
part in the consideration or decision of the case.
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether the North Carolina Supreme
Court correctly declined to give retroactive application to this
Court's decision in
Mullaney v. Wilbur, 421 U.
S. 684 (1975).
I
Petitioner Hankerson was convicted after a jury trial of
second-degree murder and sentenced to 20-25 years in prison. It was
conceded at his trial that petitioner killed a man named Gregory
Ashe by shooting him through the heart with a pistol at 11 at night
on September 29, 1974. The issue at trial was whether petitioner
acted in self-defense. The relevant evidence is described
below.
Ashe and two friends, Dancy and Whitley, were, according to the
testimony of the latter two, driving around in Ashe's
Page 432 U. S. 235
car on the evening of September 20. They went to a pool hall
shortly before 11 p.m. and, on discovering that the pool hall was
closed, returned to Ashe's car. The car would not start. Ashe asked
his companions for a light for his cigarette, but neither had one.
Whitley began walking to his home, which was one block away. Ashe
and Dancy followed him. Then Ashe decided to return to his car to
try to "crank" it. Dancy, according to his and Whitley's testimony,
ran after Whitley. Both testified that they then heard a gunshot,
heard Ashe yell that he had been shot, and saw petitioner's car
speed away. Ashe's body was not found for an hour, and when it was,
a fully burned cigarette was lodged between two fingers.
Petitioner testified at trial that he had been driving his car
very slowly because of holes in the road when someone asked him for
a light. Through his mirror he saw two men. One,
i.e.,
Ashe, walked up to the driver's window. Petitioner pushed his
cigarette lighter in and gave it to Ashe. When the lighter was
returned, petitioner felt the car shake and saw the other man at
the other door, which was locked. Ashe then grabbed petitioner's
shoulder with his right hand, and put a knife to petitioner's
throat with his left hand. Petitioner then grabbed his gun and shot
Ashe. The knife fell inside the car. Petitioner then drove away.
Shortly after the murder, the knife was recovered by a policeman
from petitioner's car. Petitioner readily admitted the shooting at
that time and told a story to the policeman which was roughly
equivalent to his trial testimony.
The State then introduced evidence tending to prove that Ashe
had never been seen with a knife of the type found in petitioner's
car; that petitioner falsely claimed to the policeman -- who
questioned him shortly after the shooting -- no longer to have
possession of the gun; that Ashe was right handed, even though
petitioner testified that the knife was wielded with Ashe's left
hand; and that although petitioner had told police that Ashe had
left a grease mark on his shirt
Page 432 U. S. 236
when Ashe grabbed him, Ashe had no grease on his hand when his
body was examined. The State argued in its summation that Ashe
would not still have had his cigarette in his hand when shot if he
had, as petitioner testified, used two hands to attack
petitioner.
The jury was instructed, in part, as follows:
"I charge that for you to find the defendant guilty of second
degree murder, the State must prove two things beyond a reasonable
doubt, first, that the defendant intentionally and
without
justification or excuse and with malice shot Gregory Ashe with
a deadly weapon. . . . [
Footnote
1]"
App. 9 (emphasis added). The judge instructed the jury that
self-defense constituted an excuse for an intentional killing.
[
Footnote 2] However, he
instructed the jury:
"If the State proves beyond a reasonable doubt or it is admitted
that the defendant intentionally killed Gregory Ashe with a deadly
weapon, or intentionally inflicted a wound upon Gregory Ashe with a
deadly weapon, that proximately caused his death, the law raises
two presumptions; first, that the killing was unlawful, and second,
that it was done with malice. . . . Then there will be some other
things I will charge you about, but, nothing else appearing, if you
are satisfied of those two things beyond a reasonable doubt then
you would find the defendant guilty of second degree murder."
". . . [I]n order to excuse his act altogether on the grounds of
self-defense, the defendant must prove not beyond a reasonable
doubt but simply
to your satisfaction
Page 432 U. S. 237
that he acted in self-defense."
Id. at 10 (emphasis added). [
Footnote 3] The judge proceeded to instruct on the
elements of self-defense. [
Footnote
4] No objection was made to any of these instructions
Page 432 U. S. 238
at the trial; and the jury found petitioner guilty of
second-degree murder.
Petitioner objected to the above-quoted portions of the
instructions to the jury for the first time on direct review in the
Supreme Court of North Carolina. He argued that the instructions
placed a burden on him to persuade the jury that he was not guilty,
by proving that the killing was not unlawful; and he claimed that
the Due Process Clause of the Fourteenth Amendment, as construed in
Mullaney v. Wilbur, 421 U. S. 684
(1975), required that the State persuade the jury beyond a
reasonable doubt as to all elements of the crime, including that of
unlawfulness -- here the absence of self-defense.
The North Carolina Supreme Court agreed that unlawfulness was an
essential ingredient of the crime, 288 N.C. 632, 648-652,
220 S.E.2d
575, 587-589 (1975), and ruled that under this Court's recently
decided cases, the Due Process Clause required that the jury be
instructed in a case such as this that the State must persuade it
beyond a reasonable doubt that the killing was not in self-defense.
Under the presumptions contained in the trial judge's instructions,
once an intentional killing with a deadly weapon had been shown,
petitioner had the burden to "satisfy" the jury that he had acted
in self-defense. The North Carolina Supreme Court held that a
burden to "satisfy" the jurors of a fact is not "significantly
less" than a burden to persuade them of the fact by a preponderance
of the evidence. The court therefore held that the charge was
erroneous under this Court's decision in
Mullaney v. Wilbur,
supra, which required the
Page 432 U. S. 239
State to establish all elements of a criminal offense beyond a
reasonable doubt and which, despite longstanding practice to the
contrary -- as in North Carolina since 1864 -- invalidated
presumptions that shifted the burden of proof with respect to such
elements to the defendant. The North Carolina Supreme Court stated
the rule for future cases:
"If there is evidence in the case of all the elements of
self-defense, the mandatory presumption of unlawfulness disappears,
but the logical inferences from the facts proved may be weighed
against this evidence. If, upon considering all the evidence,
including the inferences and evidence of self-defense, the jury is
left with a reasonable doubt as to the existence of unlawfulness,
it must find the defendant not guilty."
288 N.C. at 651-652, 220 S.E.2d at 589.
Petitioner's conviction was nevertheless affirmed, for it was
concluded that the constitutional rule announced in
Mullaney was inapplicable in this case because it was
handed down after the conclusion of petitioner's trial. [
Footnote 5] In declining to apply
Mullaney v. Wilbur to trials occurring before the date on
which it was decided, the North Carolina Supreme Court recognized
that, in
Ivan V. v. City of New York, 407 U.
S. 203 (1972), we held fully retroactive our earlier
decision in
In re Winship, 397 U.
S. 358 (1970), to the effect that the Federal
Constitution requires the States to apply the reasonable doubt
standard of proof in juvenile proceedings. It also recognized that,
as in
Ivan V., it was dealing with a constitutional rule
the primary purpose of which was to prevent the erroneous
conviction of innocent persons. Even so, the court concluded that
the retroactive application of
Mullaney would have a
devastating impact on the administration of justice in this country
in view of the number of murderers who would be released -- many of
whom could not now be retried -- in the
Page 432 U. S. 240
eight States that the court identified as placing the burden of
proving self-defense on the defendant. Accordingly, it declined to
apply
Mullaney to trials occurring before the date on
which it was decided.
This Court granted Hankerson's petition for a writ of
certiorari, which raised the single question whether
Mullaney should be held retroactive. 429 U.S. 815. The
State of North Carolina has filed an answering brief in which it
argues (1) that the North Carolina Supreme Court was correct in
holding
Mullaney not retroactive; and (2) that, in any
event, the judgment below should be affirmed because the
instructions given in this case did leave the burden of disproving
self-defense beyond a reasonable doubt on the prosecution, or at
least did not require the accused to prove self-defense by a
preponderance of the evidence in contravention of
Mullaney. These are the only two issues before this Court,
and we treat them in order. [
Footnote 6]
II
The Supreme Court of North Carolina erred in declining to hold
retroactive the rule in
Mullaney v. Wilbur, supra. In
Ivan V. v. City of New York, supra at
407 U. S.
204-205, this Court addressed the question whether our
decision in
In re Winship, supra -- holding the reasonable
doubt standard applicable to
Page 432 U. S. 241
state juvenile proceedings -- was to be applied retroactively.
The Court there said:
"'Where the major purpose of new constitutional doctrine is to
overcome an aspect of the criminal trial that 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. 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.'
Williams v. United States, 401 U. S.
646,
401 U. S. 653 (1971).
See Adams v. Illinois, 405 U. S. 278,
405 U. S.
280 (1972);
Roberts v. Russell, 392 U. S.
293,
392 U. S. 295 (1968)."
"
Winship expressly held that the reasonable doubt
standard"
"is a prime instrument for reducing the risk of convictions
resting on factual error. The standard provides concrete substance
for the presumption of innocence -- that bedrock 'axiomatic and
elementary' principle whose 'enforcement lies at the foundation of
the administration of our criminal law'. . . . 'Due process
commands that no man shall lose his liberty unless the Government
has borne the burden of . . . convincing the factfinder of his
guilt.' To this end, the reasonable doubt standard is
indispensable, for it 'impresses on the trier of fact the necessity
of reaching a subjective state of certitude of the facts in
issue.'"
"397 U.S. at
397 U. S. 363-364."
"Plainly, then, the major purpose of the constitutional standard
of proof beyond a reasonable doubt announced in
Winship
was to overcome an aspect of a criminal trial that substantially
impairs the truthfinding function, and
Winship is thus to
be given complete retroactive effect."
407 U.S. at
407 U. S.
204-205.
Page 432 U. S. 242
Ivan V. controls this case. In
Mullaney v.
Wilbur, as in In re
Winship, the Court held that due
process requires the States in some circumstances to apply the
reasonable doubt standard of proof, rather than some lesser
standard under which an accused would more easily lose his liberty.
In
Mullaney, as in
Winship, the rule was designed
to diminish the probability that an innocent person would be
convicted and thus to overcome an aspect of a criminal trial that
"substantially impairs the truthfinding function."
Respondent and the North Carolina Supreme Court seek to avoid
the force of
Ivan V. on two grounds. First, the North
Carolina Supreme Court thought that the State had justifiably
relied upon the validity of the burden-shifting presumptions
flowing from intentional killing with a deadly weapon before
Mullaney v. Wilbur, whereas the State in
Ivan V.
should have known, even before
Winship, that the
reasonable doubt standard of proof would be held applicable to
juvenile proceedings. Second, it viewed the retroactive impact of
the
Mullaney rule on the administration of justice as far
more devastating than the retroactive impact of
Winship.
Winship involved only juveniles, while
Mullaney
would affect the convictions of murderers.
Respondent recognizes that
Ivan V. did not rely on the
absence of reliance by the State on pre-
Winship law or on
the absence of a devastating impact on the administration of
justice. However, respondent claims that in deciding whether a new
constitutional rule is to be applied retroactively, the Court has
traditionally inquired not only, as in
Ivan V., into the
purpose of the rule, but also into the extent of the State's
justified reliance on the old rule and the impact that retroactive
application of the new rule would have on the administration of
justice.
See, e.g., Stovall v. Denno, 388 U.
S. 293 (1967);
Johnson v. New Jersey,
384 U. S. 719
(1966);
Tehan v. United States ex rel. Shott, 382 U.
S. 406 (1966);
Linkletter v. Walker,
381 U. S. 618
(1965). It claims that,
Page 432 U. S. 243
even where the purpose of the new rule is to improve the
"integrity of the factfinding process," the rule has been held
nonretroactive when the impact of the new rule on the
administration of justice would otherwise be devastating and when
the States have justifiably relied on the old rule.
See, e.g.,
Stovall v. Denno, supra, (holding nonretroactive the
requirement of
United States v. Wade, 388 U.
S. 218 (1967), that counsel be present at a pretrial
lineup);
Adams v. Illinois, 405 U.
S. 278 (1972) (holding nonretroactive the rule of
Coleman v. Alabama, 399 U. S. 1 (1970),
that counsel be present at a preliminary hearing).
The force of
Ivan V. may not be avoided so easily. It
is true that we have said that the question of whether the purpose
of a new constitutional rule is to enhance the integrity of the
factfinding process is a question of "degree,"
Johnson v. New
Jersey, supra at
384 U. S. 729;
and when the degree to which the rule enhances the integrity of the
factfinding process is sufficiently small, we have looked to
questions of reliance by the State on the old rule and the impact
of the new rule on the administration of justice in deciding
whether the new rule is to be applied retroactively.
Stovall v.
Denno, supra; Adams v. Illinois, supra; DeStefano v. Woods,
392 U. S. 631
(1968). But we have never deviated from the rule stated in
Ivan
V. that
"'[w]here the
major purpose of new constitutional
doctrine is to overcome an aspect of the criminal trial that
substantially impairs its truthfinding function, and so
raises
serious questions about the accuracy of guilty
verdicts in past trials, the new rule [is] given complete
retroactive effect.'"
407 U.S. at
407 U. S. 204
(emphasis added). The reasonable doubt standard of proof is as
"substantial" [
Footnote 7]
a
Page 432 U. S. 244
requirement under
Mullaney as it was in
Winship. Respondent's attempt to distinguish
Ivan
V. is without merit. [
Footnote
8]
III
Respondent next argues in support of the judgment below that the
instruction in this case -- that the defendant must "satisfy" the
jury that he acted in self-defense -- is the equivalent of an
instruction that the jury should acquit if it entertains a
reasonable doubt on the subject, or is so nearly the equivalent of
such an instruction that it is not in violation of the rule
announced in
Mullaney, where the burden impermissibly
placed on the defendant was to persuade the jury by a preponderance
of the evidence. Respondent's argument is squarely contrary to the
construction given by the North Carolina Supreme Court to the jury
charge in this case. That court concluded that a burden to
"satisfy" the jury of self-defense places a burden on a defendant
"no greater and at the same time one not significantly less than
persuasion by a preponderance of the evidence." 288 N.C. at 648,
220 S.E.2d at 587. The Court has no basis for disagreeing with this
interpretation of the charge, which is essentially a question
of
Page 432 U. S. 245
state law. Since the issue of whether due process requires the
prosecution to disprove self-defense beyond a reasonable doubt
under North Carolina law was not raised by either party in this
case, we decline to consider it now.
Reversed.
MR. JUSTICE REHNQUIST took no part in the consideration or
decision of this case.
[
Footnote 1]
The second requirement defined by the trial court was that the
shooting was the proximate cause of death.
[
Footnote 2]
"And in order to
excuse his act altogether on the
grounds of self-defense. . . ."
App. 10 (emphasis added).
Cf. Id. at 11, 14-15.
[
Footnote 3]
There was a similar instruction on the defendant's burden to
satisfy the jury that he acted without malice, that is, that he
acted in the heat of passion on sudden provocation. This
instruction was challenged in the North Carolina Supreme Court,
along with the instruction on self-defense; but we do not reach the
question because the state court, although ruling on it as a matter
of its own convenience, held that the issue had not been "properly
presented" to it in the absence of any evidence that the killing
was in the heat of passion on sudden provocation. 288 N.C. 632,
648,
220 S.E.2d
575, 587 (1975).
Mullaney v. Wilbur, 421 U.
S. 684 (1975), does not forbid States from requiring the
criminal defendant to present at least some evidence to raise a
factual issue with respect to heat of passion or self-defense.
[
Footnote 4]
"I want to instruct you that to excuse this killing entirely on
the grounds of self-defense
the defendant must satisfy you
of four things: first, that it appeared to the defendant and he
believed it to be necessary to shoot Gregory Ashe in order to save
himself from death or great bodily harm. The defendant testified
that, at the time he shot Gregory Ashe or shot at Gregory Ashe,
that Gregory Ashe was holding a knife at his throat and had his arm
around him, and he contends that that should satisfy you that he
believed it was necessary to shoot him in order to save himself
from death or great bodily harm. The second thing that you must be
satisfied of -- excuse me -- that the defendant must satisfy you of
is this, that the circumstances as they appeared to him at the time
were sufficient to create such belief in the mind of a person of
ordinary firmness, and it is for you, the jury, to determine the
reasonableness of the defendant's belief from the circumstances as
they appeared to him at the time. In making this determination, you
should consider the circumstances as you find them to have existed
from the evidence, including the size, age and strength of the
defendant as compared to Gregory Ashe, the fierceness of the
assault, if any, upon the defendant, whether or not Gregory Ashe
had a weapon in his possession. And the third thing the defendant
must satisfy you of is that he was not the aggressor. If he
voluntarily and without provocation entered into a fight with
Gregory Ashe, he was the aggressor, unless he thereafter attempted
to abandon the fight and gave notice to Gregory Ashe that he was
doing so. One enters a fight voluntarily if he uses towards his
opponent abusive language which, considering all the circumstances,
is calculated and intended to bring on a fight. And the fourth
thing that the defendant must satisfy you of is that he did not use
excessive force, that is, more force than reasonably appeared to be
necessary to the defendant at the time."
App. 11-12. (Emphasis added.)
[
Footnote 5]
Mullaney was decided on June 9, 1975. Hankerson's trial
was on November 21, 1974.
[
Footnote 6]
The State as respondent may make any argument presented below
that supports the judgment of the lower court.
Massachusetts
Mutual Ins. Co. v. Ludwig, 426 U. S. 479
(1976). The State does not argue, as an alternative ground in
support of the judgment below, that despite
Mullaney v.
Wilbur, it is constitutionally permissible for a State to
treat self-defense as an affirmative defense that the prosecution
need not negative by proof beyond a reasonable doubt. Therefore, we
do not address that issue in this case. The Court has said:
"We do not reach for constitutional questions not raised by the
parties. The fact that the issue was mentioned in argument does not
bring the question properly before us."
Mazer v. Stein, 347 U. S. 201,
347 U. S. 206
n. 5. (1954) (citations omitted).
See generally R. Stern
& E. Gressman, Supreme Court Practice, ยง 6.37 (4th ed.1969) and
cases there cited.
[
Footnote 7]
Respondent also argues that the results in very few trials in
North Carolina would have been altered by a change in the jury
instructions on self-defense because juries do not understand the
confusing instructions that were given in this and like cases in
the past.
Winship is said to be distinguishable because
the factfinding in juvenile cases is performed by a judge. We do
not so readily assume that juries fail to understand the
instructions they have been receiving in North Carolina.
See In
re Winship, 397 U. S. 358,
397 U. S.
369-370 (1970) (Harlan, J., concurring).
[
Footnote 8]
Moreover, we are not persuaded that the impact on the
administration of justice in those States that utilize the sort of
burden-shifting presumptions involved in this case will be as
devastating as respondent asserts. If the validity of such
burden-shifting presumptions were as well settled in the States
that have them as respondent asserts, then it is unlikely that
prior to
Mullaney many defense lawyers made appropriate
objections to jury instructions incorporating those presumptions.
Petitioner made none here. The North Carolina Supreme Court passed
on the validity of the instructions anyway. The States, if they
wish, may be able to insulate past convictions by enforcing the
normal and valid rule that failure to object to a jury instruction
is a waiver of any claim of error.
See, e.g., Fed.Rule
Crim.Proc. 30.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins,
concurring.
I join the opinion of the Court. I wish to emphasize, however,
that our decision not to consider the correctness of the North
Carolina Supreme Court's ruling on the self-defense charge,
see
ante at
432 U. S. 240
n. 6, and this page, does not in any way preclude that court from
reexamining its holding in petitioner's case on remand, in light of
today's decision in
Patterson v. New York, ante p.
432 U. S. 197.
MR. JUSTICE MARSHALL, concurring in the judgment.
In
Williams v. United States, 401 U.
S. 646,
401 U. S. 665
(1971), I expressed the view 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."
For reasons persuasively stated at that time by Mr. Justice
Harlan,
Mackey v. United States, 401 U.
S. 667,
401 U. S. 675
(1971), I concluded that "cases still on direct review should
receive full benefit of our supervening constitutional decisions."
Williams v. United States, supra at
401 U. S. 665.
The Court's more recent struggles with the problem of
retroactivity,
see, e.g., Adams v. Illinois, 405 U.
S. 278 (1972);
Michigan v. Payne, 412 U. S.
47 (1973), have done little to diminish "the inevitable
costs and anomalies of the Court's current approach."
Williams
v. United States, supra at
401 U. S. 666.
See Adams v. Illinois, supra at
405 U. S. 286
(Douglas, J., dissenting);
Page 432 U. S. 246
Michigan v. Payne, supra at
412 U. S. 59
(MARSHALL, J., dissenting). I remain committed to the approach
outlined in my opinion in
Williams. * Since this case
is here on direst review, I concur in the Court's holding that the
rule announced in
Mullaney v. Wilbur, 421 U.
S. 684 (1975), must be applied.
I would add, in view of MR. JUSTICE BLACKMUN's concurring
statement,
ante p.
432 U. S. 245,
that, irrespective of the applicability of
Patterson v. New
York, ante p.
432 U. S. 197, the
North Carolina Supreme Court remains free to construe its own State
Constitution to give individuals the same protection that it
afforded them in its original decision in this case.
See Manson
v. Brathwaite, ante at
432 U. S.
128-129, and n. 9 (MARSHALL, J., dissenting);
United
States v. Washington, 431 U. S. 181,
431 U. S.
193-194 (1977) (BRENNAN, J., dissenting);
Oregon v.
Mathiason, 429 U. S. 492,
429 U. S. 499,
and n. 6 (1977) (MARSHALL, J., dissenting).
* As I noted in
Williams, I think there are persuasive
reasons to use the Court's traditional retroactivity analysis to
decide that issue in cases arising on habeas corpus or other
collateral review proceedings. 401 U.S. at
401 U. S.
666.
MR. JUSTICE POWELL, concurring in the judgment.
Twelve years ago, this Court decided
Linkletter v.
Walker, 381 U. S. 618
(1965). In the intervening years, we have struggled with the
question of retroactivity when new constitutional rules affecting
the administration of the criminal law have been adopted.
See Beytagh, Ten Years of Non-Retroactivity: A Critique
and a Proposal, 61 Va.L.Rev. 1557, 1558-1596 (1975). The
retroactivity doctrine that has emerged is far from satisfactory.
Although on several occasions I have joined in its application, I
am now persuaded that it would be wiser to adopt the view urged by
Mr. Justice Harlan in
Mackey v. United States,
401 U. S. 667,
401 U. S.
675-702 (1971) (separate opinion).
See also Desist
v. United States, 394 U. S. 244,
394 U. S.
256-269 (1969) (Harlan, J., dissenting);
Williams
Page 432 U. S. 247
v. United States, 401 U. S. 646,
401 U. S.
665-666 (1971) (MARSHALL, J., concurring in part and
dissenting in part).
When the Court declines to hold a new constitutional rule
retroactive, one chance beneficiary -- the lucky individual whose
case was chosen as the occasion for announcing the new principle --
enjoys retroactive application, while others similarly situated
have their claims adjudicated under the old doctrine. This hardly
comports with the ideal of "administration of justice with an even
hand."
Desist v. United States, supra at
394 U. S. 255
(Douglas, J., dissenting). [
Footnote
2/1]
On the other hand, the holding that a new constitutional
principle is fully retroactive also may result in serious costs.
Convictions long regarded as final must be reconsidered on
collateral attack; frequently they must be overturned for reasons
unrelated to the guilt or innocence of the prisoner, and in spite
of good faith adherence on the part of police, prosecutors, and
courts to what they understood to be acceptable procedures. Society
suffers either the burden on judicial and prosecutorial resources
entailed in retrial or the miscarriage of justice that occurs when
a guilty offender is set free only because effective retrial is
impossible years after the offense. Reopening a case also carries
disadvantages for those who have been convicted:
"Both the individual criminal defendant and society have an
interest in insuring that there will at some point be the certainty
that comes with an end to litigation, and that attention will
ultimately be focused not on whether a conviction was free from
error, but rather on whether the prisoner can be restored to a
useful place in the community."
Sanders v. United States, 373 U. S.
1,
373 U. S. 225
(1963) (Harlan, J., dissenting).
Page 432 U. S. 248
See Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S. 262
(1973) (POWELL, J., concurring).
A different approach to the retroactivity question is available.
Described in detail in Mr. Justice Harlan's separate opinion in
Mackey, supra, it contemplates, in rough outline, that
courts apply a new rule retroactively in cases still pending on
direct review, whereas cases on collateral review ordinarily would
be considered in light of the rule as it stood when the conviction
became final. [
Footnote 2/2] Mr.
Justice Harlan marshaled compellingly the reasoning supporting this
view, 401 U.S. at
401 U. S.
675-698, and for me to repeat the arguments here would
be pointless. I note simply that this approach is closer to the
ideal of principled, evenhanded judicial review than is the
traditional retroactivity doctrine. At the same time, it is more
attuned to the historical limitations on habeas corpus,
see
Stone v. Powell, 428 U. S. 465
(1976), and to the importance of finality in a rational system of
justice.
See Blackledge v. Allison, 431 U. S.
63,
431 U. S. 83
(1977) (POWELL, J., concurring).
The case before us is here on direct review. I therefore agree
with the Court that Hankerson is entitled to retroactive
application of the
Mullaney rule. Accordingly, I concur in
the judgment.
[
Footnote 2/1]
In addition, as Mr. Justice Harlan noted, the typical
nonretroactivity decision often places the Court in the role of a
legislature, rather than that of a judicial tribunal.
Mackey v.
United States, 401 U.S. at
401 U. S.
677-681.
[
Footnote 2/2]
Mr. Justice Harlan described two exceptions under which a new
rule occasionally would be applied retroactively even on collateral
review.
Id. at
401 U. S.
692-695. The case he makes for these exceptions is
persuasive, but I save for another day when the question is
squarely presented a decision on when such exceptions are
appropriate.
See also Williams v. United States, 401 U.S.
at
401 U. S. 666
(MARSHALL, J., concurring in part and dissenting in part).