Lead Opinion
dеlivered the opinion of the Court. Levine and Eldridge, JJ., dissent and Eldridge, J., filed a dissenting opinion in which Levine, J., concurs at page 717 infra.
In this case appellant, Alphonso C. Wiggins (Wiggins), asks us to overrule our approval in Franklin v. State,
In Long the court held “[t]he Maryland Juvenile Causes Act, Md. Ann. Code [(1957, 1966 Repl. Vol.)], Art. 26, Secs. 51 et seq., . . . unconstitutional insofar as it exempts Baltimore City from the uniform juvenile age requirement of eighteen (18) years,” as well as “[t]he provisions of Art. 4, S240 of the Public Local Laws of Baltimore City, as applied since 1945, . . . insofar as they define a child as a ‘person under the age of sixteen years’ thereby excluding sixteen and seventeen year olds in Baltimore City from the scope of the Juvenile Causes Act.”
It is stipulated: Wiggins was born on June 23, 1944. He was indicted in 1960 on a charge of burglary allegedly committed on August 2, 1960. He was convicted and sentenced to a term of imprisonment of not more than one year to run from August 15, 1960. In 1961 he was indicted on five counts of burglary allegedly committed on May 29, June 2, July 3, July 9, and July 26, 1960. He was convicted and sentenced on each count to one year imprisonment, some of which sentences were to be consecutive and some concurrent. He was imprisoned at the Maryland Correctional Institution at Hagerstown, Maryland, from September 28, 1960, until February 4, 1963. Since he had not attained 16 years of age at the time of the incidents on May 29, 1960, and June 2, 1960, “[h]e was waived to the jurisdiction of the Criminal Court of Baltimore to be tried as an adult offender on th[o]se indiсtments pursuant to a waiver order signed by the Honorable Charles E. Moylan [of the Division for Juvenile Causes of the Circuit Court of Baltimore City on] February 23, 1961. No hearing was held prior to the signing of the waiver order,” nor was Wiggins physically present in the Circuit Court of Baltimore City “either immediately preceding or at the time the above mentioned waiver order was signed and [he] was at no time brought before that court in connection with the offenses for which he was waived.” He was then incarcerated as a convicted adult felon.
Although' we set forth much of the background of the Maryland statutes relative to juveniles in Matter of Anderson,
In 1940 Governor Herbert R. O’Conor appointed a Juvenile Delinquency Commission “to consider the whole field of the treatment of juvenile delinquency in Maryland, and to report its findings‘to the Governor and to the General Assembly at its session of 1941.” It pointed out that “Baltimore [was] the only large city in the United States whose Juvenile Court judges [were]. Justices of the Peace.” It
The Governor was authorized by Chapter 323 of the Acts of 1931, which became Code (1939) Art. 52, §§ 83-91, inclusive, to appoint “an additional justice of the peace for each county to be known as the magistrate for juvenile causes for the particular county.” This provision did not apply to Baltimore City nor to Allegany, Washington, and Baltimore Counties. The person so appointed was to be “at least twenty-five years of age [and] a member of the bar of the Court of Appeals of Maryland.” There was the further proviso that “no such appointment shfould] be made in any county until the County Commissioners sh[ould] have provided a salary for such Justice, and shfould] have notified the Governor that such provision ha[d] been made.”
The appointment by Governor O’Conor of the Juvenile Delinquency Commission in 1940 had been followed by his appointment on November 1, 1941, of a Commission on the Judiciary Article of the Constitution of Maryland, commonly known as the “Bond Commission” for its chairman, Chief Judge Carroll T. Bond of this Court. The Bond Commission was of the opinion that in order to avoid the multiplication of courts a juvenile court in Baltimore City should be a branch of the Supreme Bench and that a judge of that bench qualified for such work should continue to serve in juvenile matters without rotation in order to promote the most effective administration.
“Creation of a juvenile court in Baltimore city and in each county or at least in each Judicial Circuit, that shall have (1) original, exclusive jurisdiction, unless expressly waived by such courts in favor of the criminal courts, over children up to 16 years of age in all cases of delinquency, dependency, neglect, abandonment or feeble-mindedness; (2) original jurisdiction to determine paternity in disputed cases; (3) original, exclusive jurisdiction to try, subject to the right of trial by jury unless waived, any parent, guardian or other adult for any wilful act or omission contributing to, encouraging or tending to cause any condition bringing a child within the jurisdiction of a juvenile court, as just defined; and if found guilty, to sentence any such person for any such act or omission as a misdemeanor, to pay a fine or to imprisonment, or bоth, within limits to be fixed by statute; such juvenile court in Baltimore city to be a part of the Supreme Bench of Baltimore City, and such juvenile courts in the Counties to be parts of the existing circuit courts.” Id. at 85-86.
The General Assembly acted upon this report by enacting Chapter 818 of the Acts of 1943 providing for the exercise of juvenile jurisdiction by the Circuit Court of Baltimore City. Thus, for the first time in Maryland a judge, as distinguished from a justice of the peace, had jurisdiction in juvenile matters. The term “child” was defined as “a person under the age of sixteen years and subject to the jurisdiction of the court.” A delinquent child included an individual “who violate[d] any law or ordinance, or who commit[ted] any act which, if committed by an adult, would be a crime not
Those from without the state who have occasion to read this opinion should understand that the circuit courts of the 23 counties of Maryland are the courts of general trial jurisdiction created by Maryland Constitution Art. IV, § 20. The Constitution provides for Baltimore City what is “styled [as] the Supreme Bench of Baltimore City.” Under Art. IV, § 27, it includes the various trial courts of the City of Baltimore. The sum total of the jurisdiction of those courts equals that of the circuit courts for the various counties. The Criminal Court of Baltimore has the same general criminal trial jurisdiction as the circuit courts in the counties of Maryland. The Circuit Court of Baltimore' City has the equity jurisdiction vested in the circuit courts for the counties.
In 1945 juvenile jurisdiction reached the circuit courts for the counties with the enactment of Chapter 797 of the Acts of that year which became Code (1939, 1947 Cum. Supp.) Art. 26, §§ 48A-48U. It was not applicable to Baltimore City nor to Washington, Allegany, and Montgomery Counties. Other than for the fact' that it defined a child as a person under the age of 18 years with corresponding modifications elsewhere in the act, the 1943 and 1945 acts are similar, including the fact that § 48D of the 1945 act provided that a “[j]udge, after full investigation, m[ight] in his discretion waive jurisdiction and order such child held for action under the regular procedure that would follow if such act or acts had been committed by an adult.” It is to be specifically
The Legislative Council appointed a subcommittee on juvenile causes in 1968. Its report recommended extensive revision in the juvenile law. It formed the basis for Chapter 432 of the Acts of 1969. Most of Code (1957, 1973 Repl. Yol.) Art. 26, § § 51-71, was enacted by that chapter. It continued the exemption from the subtitle for Montgomery County. There was no difference, however, between the act for Montgomery County and the statewide act relative to age. As introduced the act would have defined a child as a person who had not reached his 18th birthday except in Baltimore City where until July 1, 1971, this meant a person who had not reached his 16th birthday. The General Assembly in its wisdom elected to cut that date back to July 1,1970. Chapter 730 of the Acts of 1970, however, changed the phase out to 1971. In this regard it is interesting to note that the Bond Commission in its interim report in 1942 did not propose a different age limit for Baltimore City, but recommended that “the jurisdiction [of the juvenile courts] be exclusive over all proceedings involving crimes or offenses by minors below the age of 18 years . . . .”
As indicated, prior to the 1969 enactment nothing was spelled out in the statutes as to what should be considered by a juvenile judge in determining whether or not to waive juvenile jurisdiction and permit an individual to be tried under the usual criminal procedure. Code (1974) § 3-816 (c) of the Courts and Judicial Proceedings Article today
The genesis of the modern retroactivity doctrine in criminal litigation is Linkletter v. Walker,
“[T]he accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective....
“[T]he Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said [in Great Northern Ry. Co. v. Sunburst Oil & Refining Co.,287 U. S. 358 , 364,53 S. Ct. 145 ,77 L. Ed. 360 (1932)], ‘We think the federal constitution has no voice upon the subject.’ ” Id. at 628-29.
In Linkletter, the .Cоurt had before it the question of whether the holding in Mapp v. Ohio,
“Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, [United States v.] Schooner Peggy, [1 Cranch 103 ,2 L.Ed. 49 (1801)],11 and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of ‘particular relations . . . and particular conduct ... of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and ‘of public policy in the light of the nature both of the statute and of its previous*700 application.’ Chicot County Drainage Dist. v. Baxter State Bank, supra, [308 U. S.] at 374.
The Court then enunciated a three-pronged test to aid in the resolution of the problem:
“We believe that the existence of the Wolf doctrine prior to Mapp is ‘an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.’ Chicot County Drainage Dist. v. Baxter State Bank, supra, at 374. The thousands of cases that were finally decided on Wolf cannot be obliterated. The ‘particular conduct, private and official,’ must be considered. Here ‘prior determinations deemed to have finality and acted upon accordingly’ have ‘become vested.’ And finally, ‘public policy in the light of the nature both of the . . . [Wolf doctrine] and of its previous application’ must be given its proper weight. Ibid,. In short, we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp.” Id. at 636.
It will be seen that the Court in its opinion relied heavily upon Chicot County which was based on the doctrine of res judicata. In that case the Court was faced with the question of whether to give its decision in Ashton v. Cameron County District,
We glean from the Supreme Court cases that there are three circumstances in which a retrospective application is mandated, (1) where the old rule affected the integrity of the fact-finding process, (2) where no trial was constitutionally permissible, and (3) where the punishment is not constitutionally permissible. In the absence of one of those three circumstances, then the three-pronged Linkletter test is applicable.
Cases involving the integrity of the fact-finding process are represented by the plurality opinion in Williams v. United States,
*702 “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial which substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.6 Neither good-faith reliance by state or federal authorities on рrior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.
“It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary, or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials.
In Williams the Court held that its decision in Chimel v. California,
It will be noted that the cases listed by Mr. Justice White in footnote 6 of his plurality opinion had a significant effect on the fact-finding process and retroactive application resulted. For instance, in Berger v. California,
Gosa v. Mayden,
“We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior*704 adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made, to tolerate, a. result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.
“We conclude that the purpose to be served by O’Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O’Callahan be accorded prospective application only. We so hold.” Id. at 685.
Mr. Justice Douglas concurred in the result in a companion case of Gosa. He advocated reargument of Gosa, however, on the issue of res judicata. He said he had “reached no position on the merits and would reserve judgment until the issue was fully explored on reargument,” but what he set forth in his opiniоn were “the reasons why res judicata arguably should lead to an affirmance . . . .” Two paragraphs of his opinion reflect a striking similarity to the case at hand:
“Here the question is whether a civilian, rather than a military, tribunal should have tried him. Does the question whether the ‘jurisdiction’ of the military tribunal can be contested at this late date turn on whether res judicata bars that inquiry?
“Petitioner Gosa in the review of his conviction by the military tribunal never raised the question raised in O’Callahan. If he was ‘constitutionally immune from punishment’ in any court, wé would have the problem presented in United States v. U. S. Coin & Currency,401 U. S. 715 , 723-724. But*705 petitioner was not tried by a kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice.” Id. at 689-90. (Footnotes omitted.)
Wiggins relies upon Robinson v. Neil,
“Linkletter indicated, for instance, that only those procedural rules affecting ‘the very integrity of the factfinding process’ would be given retrospective effect.381 U. S., at 639 . In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia,408 U. S. 238 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia,408 U. S. 936 .
“The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of Benton v. Maryland, [395 U. S. 784 ,89 S. Ct. 2056 , 23 L.Ed.2d*706 707 (1969),] it has indicated that it is retroactive without examination of the Linkletter criteria. North Carolina v. Pearce,395 U. S. 711 (1969); Ashe v. Swenson,397 U. S. 436 , 437 n. 1 (1970). These decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition.
“The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.
“We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis' will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates.” Id. at 508-09.
Similarly, in United States v. U. S. Coin & Currency,
“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.” Id. at 724. (Emphasis added.)
As noted, Mr. Justice Rehnquist pointed out in Robinson an example of giving retrospective effect to a decision relative to punishment, the application in Walker v. Georgia,
In Woodall the Fourth Circuit said:
“We think the question of retroactivity is controlled by our decision in Kemplen v. State of Maryland,428 F. 2d 169 (4th Cir. 1970). It is true, as the state contends, that the unconstitutional treatment of petitioners does not relate to the accuracy of the fact finding function of the judicial process. But as we said in Kemplen, the normal waiver proceeding is a critical point in the criminal proceedings against a juvenile. It is ‘the only*708 opportunity an accused has to plead the defense of his diminished responsibility as a juvenile.’ Kemplen, at 177. To deny juveniles in Baltimore the opportunity of such a defense and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings. We hold, therefore, that Long v. Robinson,436 F. 2d 1116 (4th Cir. 1971), is to be retroactively applied.” Id. at465 F. 2d 52 .
Kemplen v. State of Maryland,
As we have indicated, the Fourth Circuit in Woodall concluded that conviction of an individual such as Wiggins under our prior procedure is “so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in th[o]se proceedings.” We see it somewhat differently. The waiver hearing is not intended as an opportunity for a juvenile “to plead a defense of his diminished responsibility,” but to afford an opportunity for a judge to determine the fitness of the juvenile for rehabilitative measures giving due consideration to the safety of the public and applying the factors noted in Code (1974) § 3-816 (c) of the Courts and Judicial Proceedings Article. The waiver proceeding is in no way concerned with the ultimate fact-finding determination of whether the accused did nor did not commit the act he is said to have committed. The fact that there has been no waiver is not a matter for consideration in the juvenile proceeding in determining whether the child committed the act in question and thus is delinquent. Likewise, in a trial under adult procedures the fact of waiver is not an element
Wiggins was indicted by the Grand Jury of Baltimore City. He was accorded the right of trial by a jury. Since he was accused of a felony, he became entitled to the appointment of counsel on his behalf as had been the Maryland rule for many years prior to the decision of the Supreme Court in Gideon v. Wainwright,
“Moreover, the State put in evidence, over objection, summaries of reports by school principals and teachers, that had been gathered by thе school superintendent, although the persons making the reports were not present for cross-examination. The original reports were not produced. Not only were some of the statements in these reports highly derogatory, but the statements as a whole were equivocal. At one point the statements as to Dinez speak of an unacceptable behaviour pattern, at another of cooperation in the current year. In the case of Dwight, the statements speak at one point of emotional disturbance, at another of marked improvement. In this case there was also a report from the Health Department, that he had been referred ‘after being suspected’ of a serious sexual offense. Yet there was no finding on the point, and nothing but a notation that he kept appointments irregularly. Apart from being hearsay, the report was irrelevant and misleading.” Id. at 415.
It is common knowledge among those involved with juvenile cases prior to the decision of this Court in Cromwell that evidence similar to that rejected by the Court in Cromwell had been freely admitted in juvenile proceedings. Thus, had Wiggins been before the Circuit Court of Baltimore City for a determination of whether he was a juvenile delinquent the truth-finding processes would not, as of the time of his conviction, have been as carefully carried out as they were in the Criminal Court of Baltimore.
Returning to the three-pronged test enunciated by the Supreme Court in Linkletter, the purpose of the Long rule
On the issue of reliance we find persuasive the language used by the Supreme Court in Stovall v. Denno,
“The unusual force of the countervailing considerations strengthens our conclusion in favor of prospective application. The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. Today’s rulings were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit,358 F. 2d 557 . The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury. Wall, Eye-Witness Identification in Criminal Cases 38. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel. It is, therefore, very clear that retroactive application of Wade and Gilbert ‘would seriously disrupt the administration of our criminal laws.’ Johnson v. New Jersey, [384 U. S. 719 ], at 731. In Tehan v. Shott, [382 U. S. 406 ], we thought it persuasive against retroactive application of the no-comment*713 rule of Griffin v. California,380 U. S. 609 , that such application would have a serious impact on the six States that allowed comment on an accused’s failure to take the stand. We said, ‘To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.’382 U. S., at 419 . That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and .whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive.” Id. at 299-300.
The fact-finding process insofar as Wiggins was concerned was certainly not contaminated to the degree of that in Griffin v. California,
“The prosecutor made much of the failure of petitioner to testify:
‘The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
‘What kind of a man is it that would want to*714 have sex with a woman that beat up if she was beat up at the time he left?
‘He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
‘These things he has not seen fit to take the stand and deny or explain.
‘And in the whole world, if anybody would know, this defendant would know.
‘Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.’ ” Id. at 610-11.
The Court held “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Nevertheless, as indicated in that portion of Stovall which we have quoted, the Supreme Court in Tehan v. Shott,
Let us consider what retrospective application of Long would involve. First of all, there could be literally hundreds of applications similar to that here made by Wiggins. If there is to be fairness to society as a whole as well as to those individuals previously convicted, it would be necessary for a judge in the Circuit Court of Baltimore City (not sitting
In the words of Mr. Justice Douglas in Gosa, Wiggins “was not tried by a kangaroo court or by eager vigilantes,” but by a regularly constituted court of this State of the highest trial
“The law ... is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, howevеr crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.
. . There is danger that the criminal law will be brought into contempt — that discredit will. even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.” Id. at 122.
We find persuasive the holding of Gosa, the language used by Mr. Justice Douglas in his dissenting opinion in Gosa, the holding in Tehan, and the holding and language used in Stovall. Keeping “the balance true” as between the rights of the individual accused and fairness to the accuser and society at large and balancing the rights of Wiggins and persons such as he against the substantial burden to the State, we find no reason, constitutional or otherwise, for imposing upon the citizenry of the State of Maryland the onus which Wiggins here seeks to impose.
Judgment affirmed.
Notes
. It is obvious that the counties of the State were not particularly interested in implementing at their expense such a juvenile system for Maryland Manual lHS-lHi reflects the existence for terms expiring May, 1945, of magistrates for juvenile causes in Allegany, Montgomery, and Washington Counties only. Separate statutes covered Allegany and Washington Counties. See Code of Public Local Laws (1930) Art. 1, §§ 370-375 and Art. 22, §§ 558-578, originally enacted in 1914 and 1924, respectively. These statutes mandated the appointment and set the compensation as did Code (1939, 1943 Cum. Supp.) Art. 52, § 83A, enacted as Chap. 147 of the Acts of 1943, for Montgomery County.
. See Interim Report of the Commission on the Judiciary Article of the Constitution of Maryland 11 (1942) and Report of the Commission on the Judiciary Article of the Constitution of Maryland 12 (1942).
. In Anderson,
. By a footnote he observed that “[w]hile Blackstone is always cited as the foremost exponent of the declaratory theory, a very similar view was stated by Sir Matthew Hale in his History of the Common Law which was published 13 years before the birth of Blackstone. Gray, Nature and Sources of the Law 206 (1st ed. 1909).”
“11 Accord, Carpenter v. Wabash R. Co.,
“6 See, e.g., Arenault v. Massachusetts,
. Of course, as the dissent notes, the place in which an individual committed an act bringing him within the jurisdiction of the court, not his place of residence, was determinative of whether he was proceeded against as a juvenile or as an adult. It is probable, however, that the General Assembly believed that the vast majority of such acts committed in Baltimore City were committed by persons residing in that city and that the vast majority of such acts committed in the counties of Maryland were committed by persons residing in the counties.
Dissenting Opinion
dissenting:
In my view, the holding of Long v. Robinson,
The majority suggests that petitioner, in seeking to have Long v. Robinson applied to cases prior to May 15, 1969, is asking us to overrule our prior decision in Franklin v. State,
As the majority points out, beginning with Linkletter v. Walker,
“Our recent discussions of the retroactivity of other constitutional rules of criminal procedure make unnecessary, any detailed treatment of that question here. Linkletter v. Walker, supra; Tehan v. United States ex rel. Shott, supra [382 U. S. 406 ,86 S. Ct. 459 ,15 L.Ed.2d 453 (1966)]; Johnson v. State of New Jersey, supra [384 U. S. 719 ,86 S. Ct. 1772 ,16 L.Ed.2d 882 (1966)]. ‘These cases establish the principle that in the criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application” . . . .’ Johnson, supra,384 U. S., at 726-727 ,86 S. Ct., at 1777 . The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Emphasis supplied.)
On the other hand, as I understand the Supreme Court’s opinions, there are circumstances where constitutional
These principles compel the conclusion that Long v. Robinson should be applied retroactively in the present case. First, that case did not overrule any prior authority and did not announce any new principles of constitutional law, but merely applied settled equal protection principles to strike down a discriminatory practice in Baltimore City. Second, under the holding in Long v. Robinson, petitioner’s criminal trial and punishment should not have taken place. Instead, under the Equal Protection Clause of the Fourteenth Amendment, petitioner should have been proceeded against and, if found to have been delinquent, dealt with as a juvenile without suffering a criminal conviction and the subsequent disabilities which such conviction imposes. Third, even if the “three prong test” of Linkletter v. Walker, Stovall v. Denno, and subsequent cases is pertinent here, I believe that the application of the Linkletter and Stovall criteria requires that full retroactivity be accorded the holding in Long v. Robinson.
I.
Under the Supreme Court’s cases, whether a particular judicial decision on a constitutional issue should be applied
That the principle of nonretroactivity only comes into play in connection with decisions declaring new doctrine has been made clear by the Supreme Court on many occasions. In Hanover Shoe, Inc. v. United Shoe Mach. Corp., supra, a civil antitrust action, the Supreme Court held that it did not have to decide whether the principle of nonretroactivity should be applied beyond the area of criminal law to certain antitrust decisions because those decisions did not involve a “novel” issue and did not overrule earlier cases. The Court there stated (
“The theory of the Court of Appeals seems to have been that when a party has significantly relied upon a clear and established doctrine, and the retrospective application of a newly declared doctrine would upset that justifiable reliance to his substantial injury, considerations of justice and fairness require that the new rule apply prospectively only. Pointing to recent decisions of this Court in the area of the criminal law, the Court of Appeals could see no reason why the considerations which had favored only prospective application in those cases should not be applied as well as in the civil area, especially in a treble-damage action. There is, of course, no reason to confront this theory unless we have before us a situation in which there was a clearly declared judicial doctrine upon which United relied and under which its conduct was lawful, a doctrine which was overruled in favor of a new rule*721 according to which conduct performed in reliance upon the old rule would have been unlawful. Because we do not believe that this case presents such a situation, we have no occasion to pass upon the theory of the Court of Appeals.
“Neither the opinion in Alcoa [United States v. Aluminum Co. of America,148 F. 2d 416 (2d Cir. 1945)] nor the opinion in American Tobacco [American Tobacco Co. v. United States,328 U. S. 781 ,66 S. Ct. 1125 ,90 L. Ed. 1575 (1946)] indicated that the issue involved was novel, that innovative principles were necessary to resolve it, or that the issue had been settled in prior cases in a manner contrary to the view held by those courts. In ruling that it was not necessary to exclude competitors to be guilty of monopolization, the Court of Appeals for the Second Circuit relied upon a long line of cases in this Court stretching back to 1912.148 F. 2d, at 429 . The conclusion that actions which will show monopolization are not ‘limited to manoeuvres not honestly industrial’ was also premised on earlier opinions of this Court, particularly United States v. Swift & Co.,286 U. S. 106 , 116,52 S. Ct. 460 ,76 L. Ed. 999 (1932).”
In Desist v. United States, supra, the issue was whether the decision in Katz v. United States,
“We are met at the outset with the petitioners’ contention that Katz does not actually present a*722 choice between prospective or retroactive application of new constitutional doctrine. The Court in that decision, it is said, did not depart from any existing interpretation of the Constitution, but merely confirmed the previous demise of obsolete decisions enunciating the distinction between ‘trespassory’ searches and those in which there was no physical penetration of the protected premises.”
And the Court continued (
“But this contention misconstrues our opinion in Katz. Our holding there that Goldman and Olmstead ‘can no longer be regarded as controlling,’389 U. S., at 353 ,88 S. Ct., at 512 , recognized that those decisions had not been overruled until that day. True, the principles they expressed had been modified. The belief that an oral conversation could not be the object of a ‘search’ or ‘seizure’ had not survived. And in Silverman v. United States,365 U. S. 505 ,81 S. Ct. 679 ,5 L.Ed.2d 734 , we had cautioned that the scope of the Fourth Amendment could not be ascertained by resort to the ‘ancient niceties of tort or real property law.’365 U. S., at 511 ,81 S. Ct., at 682 . But the assumption persisted that electronic surveillance did not offend the Constitution unless there was an ‘actual intrusion into a constitutionally protected area.’ While decisions before Katz may have reflected growing dissatisfaction with the traditional tests of the constitutional validity of electronic surveillance, the Court consistently reiterated those tests and declined invitations to abandon them. However clearly our holding in Katz may have been foreshadowed, it was a clear break with the past, and we are thus compelled to decide whether its application should be limited to the future. ”
Consequently, the Supreme Court cases in the criminal law area which have considered whether a decision should just be applied prospectively all involve decisions which overruled or which were inconsistent with earlier decisions on the particular issues involved. For example, Adams v. Illinois,
“Implicit in such an approach [the Austinian view] is the admission when a case is overruled that the earlier decision was wrongly decided. However, rather than being erased by the later overruling decision it is considered as an existing juridical fact until overruled, and intermediate cases finally decided under it are not to be disturbed.” (Emphasis supplied.)
The reasoning of the Court underlying the nonretroactivity principle, throughout its opinion in Linkletter, was that “decisions though later overruled, ‘are law none the less for intermediate transactions’ ” (
The very manner in which the three prong test for determining nonretroactivity was set forth in Stovall v. Denno, supra,
“The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Emphasis supplied.)
See also Williams v. United States, supra,
“In Linkletter v. Walker ... we declined to give complete retroactive effect to the exlusionary rule*727 of Mapp v. Ohio .... Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored.” (Emphasis supplied.)
The Supreme Court’s decision just this past term in United States v. Peltier,
While Peltier makes it clear that a “new constitutional principle” for purposes of the rule of nonretroactivity need not always stem from the overruling of a prior United States Supreme Court decision, and while the majority and dissenting opinions in Peltier disagreed over the nature of the lower federal court decisions involved and the extent to which border patrol agents could have justifiably relied on them {id. at 540-542), nevertheless the majority opinion did appear to reaffirm that the question of nonretroactivity only arises with respect to decisions declaring new constitutional doctrine.
It is entirely reasonable to limit consideration of the Linkletter and Stovall rule of nonretroactivity to those decisions declaring a new constitutional principle or doctrine. For example, at the time of the defendant’s trial in Linkletter,
Moreover, where a decision announces no new constitutional principle, there is no basis for the argument that public officials “relied” upon the “old” constitutional principle. Finally, where a decision involves merely the application of settled constitutional principles to a particular practice, there is much less justification for public officials to complain about the effect of the decision upon the administration of justice.
Long v. Robinson, supra, declared no new constitutional doctrine, overruled no prior authority, but merely applied long established principles under the Equal Protection Clause of the Fourteenth Amendment to strike down an arbitrary and discriminatory practice in Maryland.
The only basis for the discrimination suggested by the majority in the instant case is that “the youth of Baltimore City were regarded by the General Assembly as reaching that state of maturity where they should be prosecuted as adults two years earlier than their peers in the remainder of the State.” This, however, could not have been the basis or rationale for the different treatment, because the distinction was. not dependent upon whether the defendant was a “youth of Baltimore City” or a resident elsewhere in the State. Whether a sixteen or seventeen year old was criminally prosecuted or treated as a juvenile for committing a “criminal” or “delinquent” act depended upon where the offense was committed, not upon where in the State the youth resided. Code (1974), § 3-818 (b) of the Courts and Judicial Proceedings Article; Code (1957, 1966 Repl. Vol., 1969 Cum. Supp.), Art. 26, § 70-4 (1); Code (1957, 1963 Repl. Vol.), Maryland Rule 901. In Long v. Robinson
While the cases applying the equal protection clause have indicated that there is a wide toleration for territorial distinctions within a state, nevertheless the state’s authority is limited to drawing “reasonable distinctions between political subdivisions within its bordеrs.” San Antonio Independent School District v. Rodriguez,
“Nor, apart from any other consideration, is there any rational basis for the territorial classification made by the act, for there is no such difference in the conditions existing within the state outside of Baltimore City and those within its limits, in reference to the business of paper hanging, which would make the pursuit of it in the city a menace to the public health and safety but harmless beyond its limits. It is, of course, well settled that the legislature may restrict the application of statutes to localities less in extent than the state ... as the exigencies of the several parts of the state may require. But broad as that power is, it may not be used to deprive the citizens*732 of one part of the state of rights and privileges which they enjoy in common with the citizens of all other parts of the state, unless there is some difference in conditions in the territory selected and that not affected by the statute, sufficient to afford some basis, however slight, for the classification.” (Emphasis supplied.)
Since there was no reasonable ground or basis for the distinction between youths committing offenses in Baltimore City and youths committing offenses elsewhere in the State, the striking down of this discriminatory practice •in Long v. Robinson clearly represented an application of well-settled equal protection principles to the facts of a particular case.
II.
Another circumstance in which a constitutional ruling should be applied retroactively to a criminal matter, independently of the Linkletter, Stovall, etc. analysis, is where the ruling would have prevented the criminal trial from taking place, or the type of punishment from being imposed.
While the principle that certain constitutional decisions should only be applied prospectively has on occasion been invoked in other areas,
On the other hand, the Supreme Court has made it clear that certain types of cases, not involving questions of procedure arising during the criminal proceedings, are not susceptible to the analysis of Linkletter, Stovall, and similar cases. In Robinson v. Neil, supra,
“We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity in a decision announcing that the exclusionary rule of Mapp v. Ohio,367 U. S. 643 ,81 S. Ct. 1684 ,6 L.Ed.2d 1081 (1961), would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting*734 trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, he lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application.
“Linkletter indicated, for instance, that only those procedural rules affecting ‘the very integrity of the factfinding process’ would be given retrospective effect.381 U. S., at 639 ,85 S. Ct., at 1743 . In terms of some nonprocedural guarantees, thr test is simply not appropriate. In Furman v. Georgia,408 U. S. 238 ,92 S. Ct. 2726 ,33 L.Ed.2d 346 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia,408 U. S. 936 ,92 S. Ct. 2845 ,33 L.Ed.2d 753 .”
The Court in Robinson v. Neil went on to hold that Waller v. Florida,
“The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have*735 prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.”
See also Ashe v. Swenson, supra,
Again in United States v. United States Coin and Currency, supra,
*736 “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 . . . ; Tehan v. United States ex rel. Shott . . . ; Johnson v. Nеw Jersey . . . ; Stovall v. Denno .... 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.”
And, in language particularly apt to the majority’s discussion in the instant case concerning the superior fact finding procedures in the criminal court, the Supreme Court in United States Coin and Currency went on (
“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.”
Furthermore, even where the constitutional ruling would not have prevented the criminal trial, but would have prevented the imposition of the particular penalty involved, the rule of “complete retroactivity” is applicable. Thus, Walker v. Georgia,
Applying these Supreme Court cases to the decision in Long v. Robinson dictates that Long be given full retroactive effect. Although the majority opinion in the present case compares the procedural rights applicable in a criminal trial with those applicable in juvenile proceedings, this is simply irrelevant. Long v. Robinson was not concerned with procedural rights during a trial, but with the unconstitutionality of subjecting certain youths to criminal proceedings and criminal punishment at the same time that other youths of the samе age, committing the same acts, were not subject to prosecution and punishment as criminals.
III.
As previously discussed, the three criteria set forth in the cases applying new constitutional rulings prospectively only, are “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Gosa v. Mayden, supra,
The most important of the criteria for determining the retroactivity of a constitutional ruling is the purpose of the ruling. If the “purpose” test clearly points to retroactivity, the ruling is given “complete retroactive effect,” and “[njeither 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, supra,
Where a major purpose of a constitutional ruling does not relate to the fairness or propriety of the verdict or sentence, but has other objects such as insuring police compliance with the restrictions imposed upon them by the Fourth Amendment (e.g., United States v. Peltier, supra; Linkletter v. Walker, supra), the Supreme Court has usually limited the effect of the ruling to subsequent cases. On the other hand, where the purpose of the ruling bears most heavily upon the fairness of the adjudicatory process against a defendant, such as the right to counsel during trial (Pickelsimer v. Wainwright, supra) or the right of confrontation (Berger v. California, supra), the ruling will normally be given retroactive effect.
Typically, where a constitutional holding is aimed at the adjudicatory process itself, rather than having some extraneous object, it is said to “infect the integrity of the truth-determining process at trial” (Stovall v. Denno, supra,
However, the “purpose” criteria is broader than this. When the Supreme Court has referred to the “integrity of the fact-finding process,” it has meant something more than whether or not the defendant engaged in a particular action. Where a ruling cast doubt about the “verdict of guilt,” Mackey v. United States, supra,
The ruling in Long v. Robinson, while it may not have related to the fairness of the procedure for deciding whether a sixteen year old did a particular act, was directly concerned with the fairness of the guilty verdict and the sentence. Under the Long holding, petitioner would not have been subject to trial initially as an adult and, absent a w.aiver of jurisdiction by the juvenile court, would not have suffered a criminal conviction and punishment in an adult prison. Obviously, the Long ruling was directly related to the verdict and sentence to be imposed, and thus the “purpose” of the ruling requires that it be applied retroactively.
In another respect, the “purpose” standard dictates
Since the “purpose” standard dictates that Long v. Robinson should be given retrospective application, the criteria of “reliance” and “effect on the administration of justice,” as previously mentioned, are not particularly relevant. However, both of these criteria also point to retroactivity.
The Supreme Court, in discussing the factor of “reliance” upon old constitutional standards, almost invariably has been referring to the reliance upon prior judicial authority setting forth or upholding the “old” standards. As discussed in Part I, supra, there was no prior authority upholding the discriminatory practice in Baltimore City. The only prior reported decision on the subject had, on equal protection grounds, invalidated the type of discrimination involved. Moreover, for the reasons also, delineated in Part I, supra, any reliance by Maryland officials on the statute authorizing the discrimination would not have been reasonable or justified, and the Supreme Court opinions have repeatedly indicated that the reliance must be “justified.” See, e.g., Roberts v. Russell, supra,
Turning to the effect upon the administration of justice by applying Long v. Robinson retroactively, it would seem that
In sum, for several reasons, I would agree with the decision in Woodall v. Pettibone,
Judge Levine authorizes me to state that he concurs in the views expressed herein.
. In his bill of complaint, petitioner sought a declaration that his conviction for the four burglaries committed after his sixteenth birthday and before his eighteenth birthday be declared null and void because the Juvenile Court did not waive its jurisdiction over those offenses before his trial in the Criminal Court of Baltimore. He also sought a declaration that his conviction for the two burglaries committed before his sixteenth birthday be declared null and void because, although the Juvenile Court waived jurisdiction over those offenses, no hearing was granted to him before the waiver order. In Kemplen v. Maryland,
. The retroactivity of Escobedo v. Illinois,
In Stovall v. Denno, supra, the question was the retroactivity of United States v. Wade,
Witherspoon v. Illinois,
Roberts v. Russell,
In De Stefano v. Woods,
In Fuller v. Alaska,
Berger v. California,
In Ashe v. Swenson,
Williams v. United States,
Both United States v. United States Coin and Currency,
In Stewart v. Massachusetts,
Michigan v. Payne,
The Court in Gosa v. Mayden,
. The Supreme Court has consistently rejected the argument that, with respect to the retroactivity of a constitutional holding, a distinction should be made between cases on direct review from a criminal conyiction and those involving a later collateral attack upon the criminal conviction. See, e.g., Williams v. United States, supra,
. While a 1967 opinion of the Court of Special Appeals, Graves v. State, No. 201, Initial Term, 1967, decided July 21, 1967, had upheld the practice, Graves was an unreported per curiam, opinion, and as such constituted no precedential authority upholding the discrimination. See Maryland Rule 1092 b.
. As pointed out by Judge Watkins in Long v. Robinson, supra
. Even if Long v. Robinson had involved a “new" application of the requirement that no. state shall deny to any persons the equal protection of the laws, I would still doubt that it should be regarded as announcing a new constitutional principle so as to bring into consideration the Linkletter rule of nonretroactivity. Cf. United States v. United States Coin and Currency, supra,
. E.g., the plurality opinion of the Chief Justice in Lemon v. Kurtzman, supra,
. See, e.g., cases discussed in fn. 2, supra.
. This, of course, distinguishes the instant case and Long from Gosa v. Mayden, supra, upon which the majority relies. Gosa was concerned with the retroactivity of O’Callahan v. Parker, supra, regarding court martial trials of non-service connected crimes. As the plurality opinion in Gosa makes clear, the question was not whether or not one was initially subject to criminal prosecution for non-service connected crimes but whether he was entitled to the procedural rights set forth in the Fifth and Sixth Amendments. See