John Marshall Harlan II

“ But in Marchetti and Grosso, we dealt with the question whether, in light of possible uses of testimonial evidence sought to be compelled over a claim of privilege, the Fifth Amendment allows the individual concerned to withhold the evidence without penalty. In the present case, however, we deal with the scope of immunity required when the privilege is claimed and the evidence is nevertheless compelled. This distinction, in my view critical, is overlooked by petitioner. Where testimony has been refused, adjudication of necessity must take place in something of a vacuum. ”

“ The dissenting opinion attempts to palliate its invocation of the legislative process by alternately suggesting that the typical statutory rule is, because widespread, part of our fabric of 'positive law' and the issue, therefore, is whether this Court should carry this policy over to the realm of constitutional interpretation. Three cases are cited that allegedly reveal we are not foreclosed from taking this course. The short answer to all this remains the same: the distinction between judicial and legislative power is equally woven deeply into the fabric of our positive law. ”

“ United States, 373 U.S., at 24-25, 83 S.Ct., at 1082 (Harlan, J., dissenting) . At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the question litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. ”

“ Viewed in this light, then, Marchetti and Grosso are the outgrowth of two principles inapplicable to the problem at hand. The first is that when a given class of activities is, in the main, made criminal by either state or federal law, an individual may not be compelled to disclose whether he engages in activities within the class unless his disclosure is compensated by the requisite grant of immunity. ”

“ As a court of law we have no right on direct review to treat one case differently from another with respect to constitutional provisions applicable to both. As regards cases coming here on collateral review, the problem of retroactivity is in truth none other than one of resettling the limits of the reach of the Great Writ, which under the recent decisions of this Court has been given almost boundless sweep. ”

“ We cannot release criminals from jail merely because we think one case is a particularly appropriate one in which to apply what reads like a general rule of law or in order to avoid making new legal norms through promulgation of dicta. This serious interference with the corrective process is justified only by necessity, as part of our task of applying the Constitution to cases before us. ”

“ For the reasons discussed above, the Government may validly enforce the tax laws by a scheme of required reports, directed at all persons engaging in certain types of activity, and requiring them to report the amount of their income so that the Government may insure that the requisite taxes have been paid. If such a reporting requirement raises a substantial danger of incrimination under state or federal statutes making criminal the activity that is being taxed, an individual may, of course, assert the privilege against self-incrimination and refuse to disclose the information sought. ”

“ While I do not subscribe to the Blackstonian theory that the law should be taken to have always been what it is said to mean at a later time, I do believe that whether a new constitutional rule is to be given retroactive or simply prospective effect must be determined upon principles that comport with the judicial function, and not upon considerations that are appropriate enough for a legislative body. ”

“ Of Course, the Government may not insulate inquiries designed to produce incriminating information merely by labeling the inquiry a necessary incident of a regulatory scheme. Where the essence of a statutory scheme is to forbid a given class of activities, it may not be enforced by requiring individuals to report their violations. See Marchetti, supra; Haynes v. United States, 390 U.S. 85, 88 S.Ct. ”

“ Chimel's dispute with the State of California, it is hard to see the necessity, wisdom, or justification for imposing that control in the Chimel case itself. In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation. ”

“ While Kahriger did indeed, in my judgment, rest upon an 'excessively narrow' view of the scope of the privilege against self-incrimination, I cannot say that hindsight reveals that judgment to have been so grossly erroneous as to amount to the perpetration of an inexcusable inequity against Mackey in these circumstances. Despite our rejection of it as a matter of Fifth Amendment policy, the prior justification of the Government's activity in this area-that persons affected could avoid incrimination by ceasing to engage in illegal activities-is not without some force. ”

“ Refusal to apply new constitutional rules to all cases arising on direct review may well substantially deter those whose financial resources are barely sufficient to withstand the costs of litigating to this Court, or attorneys who are willing to make sacrifices to perform their professional obligation in its broadest sense, from asserting rights bottomed on constitutional interpretations different from those currently prevailing in this Court. ”

“ As I have stated before, '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. ”

“ While men languish in jail, not uncommonly for over a year, awaiting a first trial on their guilt or innocence, it is not easy to justify expending substantial quantities of the time and energies of judges, prosecutors, and defense lawyers litigating the validity under present law of criminal convictions that were perfectly free from error when made final. ”

“ Assuring every state and federal prisoner a forum in which he can continually litigate the current constitutional validity of the basis for his conviction tends to assure a uniformity of ultimate treatment among prisoners ”

“ Thus, even when the privilege against self-incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements. United States v. Knox, 396 U.S. 77, 80-83, 90 S.Ct. 363, 365-367, 24 L.Ed.2d 275 (1969) .
The flaw in petitioner's argument lies in its misunderstanding of Marchetti and Grosso as applied to a situation where testimonial evidence has been compelled over a claim of privilege. ”

“ It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed. ”

“ Mackey is not asserting that the conduct for which he is being punished, evading payment of his federal income taxes, has been held to be constitutionally immune from punishment. In this regard, Mackey's claim differs from that raised by the respondent in Coin & Currency, also decided today, where Marchetti and Grosso do operate to render Congress powerless to punish the conduct there at issue. Instead, Mackey's claim is that the procedures utilized in procuring his conviction were vitiated by the Marchetti and Grosso decisions. ”

“ But where the statutory scheme is not designed to forbid certain acts, but only to require that they be done in a certain way, the Government may enforce its requirements by a compulsory scheme of reporting, directed at all who engage in those activities, and not on its face designed simply to elicit incriminating information. ”

“ In conclusion, the Court in deciding these cases seems largely to have forgotten the limitations that accompany its functions as a court of law. For the retroactivity doctrine announced today bespeaks more considerations of policy than of legal principle. ”

“ There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose. Moreover, issuance of the writ on substantive due process grounds entails none of the adverse collateral consequences of retrial I have described above. Thus, the obvious interest in freeing individuals from punishment for conduct that is constitutionally protected seems to me sufficiently substantial to justify applying current notions of substantive due process to petitions for habeas corpus. See generally Part II of my opinion for the Court in United States v. ”

“ For while the Government may not undertake the prosecution of crime by inquiring of individuals what criminal acts they have lately planned or committed, it may surround a taxing or regulatory scheme with reporting requirements designed to insure compliance with the scheme. ”

“ But neither in Sullivan nor in any other of our cases is there the slightest suggestion that an individual may refuse to disclose the income he has earned solely because such disclosure will indicate a failure to pay the taxes imposed on that income. ”

“ United States, supra. This not to say, however, that the function of habeas corpus is to provide a federal forum for determining whether any individual is presently "in custody in violation of the constitution ... of the United States," 28 U.S.C. § 2254 (1964 ed., Supp. V) , in the sense that the basis for his incarceration would, under the law existing at the time a petition is filed or adjudicated, as distinguished from the law that was applicable at the time his conviction became final, be held free of constitutional error. ”

“ No longer do the inferior courts -- and, in the constitutional realm, all courts are inferior to us -- bear responsibility for developing or interpreting the Constitution. For it is a necessary corollary of this current retroactivity doctrine that an inferior court errs when it arrives at a result which this Court subsequently adopts but later decides must operate prospectively only. See my dissent in Desist, 394 U.S., at 259. Cf. United States v. ”

“ Nor did we suggest that the Fifth Amendment would make it impossible for Congress to construct an enforceable statutory scheme for reporting by individuals of their illicit gains. See 390 U.S., at 72, 88 S.Ct., at 716 (Brennan, J., concurring) . Rather, we noted that ' (t) he laws of every State, except Nevada, include broad prohibitions against gambling, wagering, and associated activities,' and that even Nevada imposed 'criminal penalties upon lotteries and certain other wagering activities taxable under (the federal) statutes.' Id., at 44-46, 88 S.Ct., at 700, 701. ”

“ In such circumstance, sanctions may be applied for refusal to testify only if it is "perfectly clear, from a careful consideration of all the circumstances in the case * * * that the answer (s) cannot possibly have (a) tendency' to incriminate.' Id., at 488, 71 S.Ct., at 819, quoting Temple v. ”

“ United States Coin & Currency, 401 U.S., at 735, 91 S.Ct., at 1052, points out, in an analogous situation, the legislative repeal of a criminal statute, 'the judge-made rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule ”