Thurgood Marshall

“ Justice HARLAN in his separate opinion covering the present cases, 401 U.S. 675, 91 S.Ct. 1171, 28 L.Ed.2d 410, in my view requires that cases still on direct review should receive full benefit of our supervening constitutional decisions. I am persuaded that willingness to tolerate the inevitable costs and anomalies of the Court's current approach to retroactivity is incompatible with the judicial duty of principaled review of convictions not yet final. ”

“ In particular, if the purposes of a new rule implicate decisively the basic truth-determining function of the criminal trial, then I believe the rule should be given full retroactive application, for the required constitutional procedure itself would then stand as a concrete embodiment of 'the concept of ordered liberty.' Palko v. ”