Upon retrial following the reversal of his conviction,
petitioner was again found guilty and sentenced by the jury to a
greater term than had been imposed by the first jury. After
exhausting his state court appeals, petitioner was denied habeas
corpus on his claim that imposing a higher sentence on retrial was
unconstitutional, and the Court of Appeals affirmed.
The rendition of a higher sentence by a jury upon
retrial does not violate the Double Jeopardy Clause, North
Carolina v. Pearce, 395 U. S. 711
395 U. S.
-721, and does not offend the Due Process Clause as
long as the jury is not informed of the prior sentence and the
second sentence is not otherwise shown to be a product of
vindictiveness. Nor does the possibility of a higher sentence
impermissibly "chill" the exercise of a criminal defendant's right
to challenge his first conviction by direct appeal or collateral
attack. Pp. 412 U. S.
455 F.2d 640, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J.,
filed a dissenting statement, post,
p. 412 U. S. 35
STEWART, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 412 U. S. 35
MARSHALL, J., filed a dissenting opinion, post,
412 U. S.
Page 412 U. S. 18
MR. JUSTICE POWELL delivered the opinion of the Court.
A writ of certiorari was granted in this case to consider
whether, in those States that entrust the sentencing responsibility
to the jury, the Due Process Clause of the Fourteenth Amendment
bars the jury from rendering higher sentences on retrials following
reversals of prior convictions. In North Carolina v.
Pearce, 395 U. S. 711
(1969), this Court established limitations on the imposition of
higher sentences by judges in similar circumstances. While we
reaffirm the underlying rationale of Pearce
vindictiveness against the accused for having successfully
overturned his conviction has no place in the resentencing process,
whether by judge or jury, we hold today that due process of law
does not require extension of Pearce
-type restrictions to
Early in 1969, petitioner was tried by a jury in a Georgia state
criminal court on a charge of robbery by open force or violence, a
capital offense at that time. The jury, which had been instructed
that it was empowered to impose a sentence of death, life
imprisonment, or a term of years, [Footnote 1
] found petitioner guilty and sentenced him to
15 years in prison. He appealed to the Georgia Supreme Court,
claiming primarily that the trial judge had given an erroneous jury
instruction as to the
Page 412 U. S. 19
defendant's burden of proving an alibi defense. His claim was
rejected and his conviction was affirmed. 225 Ga. 602, 170 S.E.2d 426
(1969). Thereafter, he renewed that claim in a petition for a writ
of habeas corpus to the United States District Court for the
Northern District of Georgia. The District Court found petitioner's
contention meritorious, granted the writ, and ordered him returned
to the state court for retrial.
Upon retrial before a different judge and a new jury, petitioner
was again found guilty. A comparison of the trial transcripts in
the two cases indicates that the trials were similar in most
respects. The case was prosecuted on both occasions by the same
State's attorney and the same prosecution witnesses testified to
the facts surrounding the alleged robbery. Petitioner, however, was
represented by new counsel and, in addition to repeating his alibi
defense, he interposed an insanity defense not offered at the
former trial. New witnesses were called to testify for both sides
on this issue. Also, while petitioner took the stand and made an
unsworn statement in each case, his statement at the latter trial
was longer, and contained autobiographical information not
presented to the former jury, including an emotional discussion of
his family background, an account of his religious affiliation, job
history, previous physical injuries, and a rendition of several
religious poems and songs he had written. [Footnote 2
The jury instructions on the permissible range of punishment
were the same at each trial, and the prosecutor at the second trial
urged the jury to sentence petitioner to death, as he had in his
closing argument at the prior trial. [Footnote 3
] This time, however, the jury returned a
Page 412 U. S. 20
of life imprisonment. The parties agree that the jury was not
aware of the length of the sentence meted out by the former jury.
And, although the jury was informed by one of petitioner's own
witnesses that he had been tried previously on the same charge,
] the jury was not
told that petitioner had been convicted and that his conviction had
been overturned on collateral attack. [Footnote 5
Claiming primarily that it was improper for the State to allow
the jury to render a harsher sentence on retrial, petitioner
appealed again to the State Supreme Court. That court affirmed the
lower court's judgment and refused to alter petitioner's sentence.
227 Ga. 327, 180 S.E.2d 741
(1971). He then filed his second application for habeas relief in
the Federal District Court, arguing that the higher sentence was
invalid under Pearce.
Page 412 U. S. 21
The District Court disagreed, and declined to issue the writ. On
appeal to the United States Court of Appeals for the Fifth Circuit,
the District Court's judgment was affirmed in an opinion holding
that the higher sentence received in this case was not violative of
due process. 455 F.2d 640 (1972). Because two other federal courts
of appeals had held, to the contrary, that Pearce
restrictions are applicable, [Footnote 6
] we granted certiorari to resolve the conflict.
409 U. S. 12
Georgia is one of a small number of States that entrust the
sentencing function in felony cases to the jury, rather than to the
judge. [Footnote 7
] While much
has been written on the questions whether jury sentencing is
desirable [Footnote 8
whether it is compatible with the modern philosophy of criminal
sentencing that "the punishment should fit the offender, and not
merely the crime," Williams v.
Page 412 U. S. 22
York, 337 U. S. 241
337 U. S. 247
(1949), this Court has never expressed doubt about the
constitutionality of that practice. See McGautha v.
California, 402 U. S. 183
402 U. S.
-208 (1971); Witherspoon v. Illinois,
391 U. S. 510
391 U. S.
-520 and n. 15 (1968); Spencer v. Texas,
385 U. S. 554
385 U. S. 560
(1967); Giaccio v. Pennsylvania, 382 U.
, 382 U. S. 405
n. 8 (1966). The States have always enjoyed "wide leeway in
dividing responsibility between judge and jury in criminal cases."
Spencer v. Texas, supra,
at 385 U. S. 560
If a State concludes that jury sentencing is preferable because,
for instance, it guarantees the maintenance of a "link between
contemporary community values and the penal system,"
Witherspoon v. Illinois, supra,
at 391 U. S. 519
n. 15, or because "juries are more likely to act with compassion,
fairness, and understanding than the judge," Stubbs, Jury
Sentencing in Georgia -- Time For a Change?, 5 Ga.St.B.J. 421, 426
(1969), nothing in the Due Process Clause of the Fourteenth
Amendment intrudes upon that choice.
Petitioner does not question this proposition. Instead, he
contends that, although the jury may set the sentence, its range of
discretion must be subjected to limitations similar to those
imposed when the sentencing function on retrial is performed by the
judge. While primary reliance, therefore, is placed on this Court's
recent opinion in Pearce,
petitioner asserts three
distinct due process claims: (A) higher sentences on retrial
violate the double jeopardy provision of the Fifth Amendment, made
binding on the States through the Due Process Clause of the
Fourteenth Amendment, Benton v. Maryland, 395 U.
, 395 U. S.
-796 (1969); (B) higher sentences occasioned by
vindictiveness on the part of the sentencing authority violate
traditional concepts of fairness in the criminal process; and (C)
the possibility of a higher sentence, even absent a reasonable fear
Page 412 U. S. 23
has an impermissible "chilling effect" on the exercise of the
rights to appeal and to attack collaterally a conviction. Each
claim will be considered separately.
The question presented in Pearce,
arising in the
context of judicial resentencing, was framed as follows:
"When, at the behest of the defendant, a criminal conviction has
been set aside and a new trial ordered, to what extent does the
Constitution limit the imposition of a harsher sentence after
conviction upon retrial?"
395 U.S. at 395 U. S. 713
In addressing first the double jeopardy claim, the Court recognized
the long-accepted power of a State "to retry
who has succeeded in getting his first conviction set aside,"
at 395 U. S. 720
(emphasis in original); United States v. Tateo,
377 U. S. 463
(1964), and, as a "corollary" of that power, "to impose whatever
sentence may be legally authorized, whether or not it is greater
than the sentence imposed after the first conviction." 395 U.S. at
395 U. S.
The foundational precedent from which the Court's view of
resentencing discretion derives is Stroud v. United
States, 251 U. S. 15
(1919), a case which, because it involved jury resentencing, is
central to the double jeopardy claim in the present case. Robert
Stroud, popularly known as "The Birdman of Alcatraz," [Footnote 9
] was indicted for the murder
of a federal prison guard at Leavenworth, Kansas. After being
convicted and sentenced by a jury to life imprisonment, he won a
retrial upon a confession of error by the Solicitor General. His
retrial resulted in another verdict of guilty of murder in the
Page 412 U. S. 24
and a sentence, again imposed by the jury, of death. On a direct
appeal, a unanimous Court held that, despite the harsher sentence
on retrial, Stroud had not been "placed in second jeopardy within
the meaning of the Constitution." Id.
at 251 U. S.
The Court in Pearce
reaffirmed that decision,
emphasizing that it now constitutes a "well-established part of
our constitutional jurisprudence'" which rests on the "premise that
the original conviction has, at the defendant's behest, been wholly
nullified, and the slate wiped clean." 395 U.S. at 395 U. S.
720-721. Petitioner, relying on the views of MR. JUSTICE
DOUGLAS and Mr. Justice Harlan expressed in their separate opinions
in Pearce, id. at
395 U. S. 726, 395 U. S. 744,
urges the Court to overrule Stroud, [Footnote 10] a step which, for the reasons
stated in Pearce, we again decline to take.
Petitioner's second contention focuses on the problem of
vindictiveness. In Pearce,
it was held that
vindictiveness, manifesting itself in the form of increased
sentences upon conviction after retrial, can have no place in the
resentencing process. Under our constitutional system, it would be
impermissible for the sentencing authority to mete out higher
sentences on retrial as punishment for those who successfully
exercised their right to appeal, or to attack collaterally their
conviction. [Footnote 11
Those actually subjected to harsher resentencing as a
Page 412 U. S. 25
of such motivation would be most directly injured, but the wrong
would extend as well to those who elect not to exercise their
rights of appeal because of a legitimate fear of retaliation. Thus,
the Court held that fundamental notions of fairness embodied within
the concept of due process required that convicted defendants be
"freed of apprehension of such a retaliatory motivation."
at 395 U. S. 725
To that end, the Court concluded that, "whenever a judge imposes a
more severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear." Id.
at 395 U. S. 726
And, as a further prophylaxis, it was stated that those reasons
must be based upon
"objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original
Petitioner seeks the extension of the Pearce
to jury sentencing. That decision, as we have said, was premised on
the apparent need to guard against vindictiveness in the
resentencing process. Pearce
was not written with a view
to protecting against the mere possibility that, once the slate is
wiped clean and the prosecution begins anew, a fresh sentence may
be higher for some valid reason associated with the need for
flexibility and discretion in the sentencing process. The
possibility of a higher sentence was recognized and accepted as a
legitimate concomitant of the retrial process. Id.
395 U. S.
Subsequent cases have dispelled any doubt that Pearce
was premised on the hazard of vindictiveness. In Moon v.
Maryland, 398 U. S. 319
(1970), a case granted with a view to determining the retroactivity
the Court ordered the case dismissed as
improvidently granted when it became clear that there was no claim
there that the higher sentence received on retrial was
Page 412 U. S. 26
a product of vindictiveness on the part of the sentencing judge.
Because counsel for the reconvicted defendant eschewed that
contention, the Court held that "there is no claim in this case
that the due process standard of Pearce
at 398 U. S. 320
A similar focus on actual vindictiveness is reflected in the
decision last Term in Colten v. Kentucky, 407 U.
(1972). The question in that case was whether the
principle applied to bar the imposition of a higher
sentence after a de novo
trial in those jurisdictions that
employ a two-tier system of trial courts. While noting that "[i]t
may often be that the [de novo
"appeal" court] will impose
a punishment more severe than that received from the inferior
at 407 U. S. 117
we were shown nothing to persuade us that
"the hazard of being penalized
for seeking a new trial,
which underlay the holding of Pearce,
also inheres in the
at 407 U. S. 116
(emphasis supplied). In short, the Due Process Clause was not
violated, because the "possibility of vindictiveness" was not found
to inhere in the two-tier system. Ibid.
This case, then, is controlled by the inquiry into possible
vindictiveness counseled by Pearce, Moon,
The potential for such abuse of the sentencing
process by the jury is, we think, de minimis
in a properly
controlled retrial. The first prerequisite for the imposition of a
retaliatory penalty is knowledge of the prior sentence. It has been
conceded in this case that the jury was not informed of the prior
sentence. We have no reason to suspect that this is not customary
in a properly tried jury case. It is more likely that the jury will
be aware that there was a prior trial, but it does not follow from
this that the jury will know whether that trial was on the same
charge, or whether it
Page 412 U. S. 27
resulted in a conviction or mistrial. [Footnote 12
] Other distinguishing factors between jury
and judicial sentencing further diminish the possibility of
impropriety in jury sentencing. As was true in Colten,
second sentence is not meted out by the same judicial authority
whose handling of the prior trial was sufficiently unacceptable to
have required a reversal of the conviction. Thus, the jury, unlike
the judge who has been reversed, will have no personal stake in the
prior conviction and no motivation to engage in self-vindication.
Similarly, the jury is unlikely to be sensitive to the
institutional interests that might occasion higher sentences by a
judge desirous of discouraging what he regards as meritless
appeals. [Footnote 13
Page 412 U. S. 28
In light of these considerations, and where improper and
prejudicial information regarding the prior sentence is withheld,
] there is no
basis for holding that jury resentencing poses any real threat of
Page 412 U. S. 29
Petitioner's final argument is that harsher sentences on retrial
are impermissible because, irrespective of their causes and even
conceding that vindictiveness plays no discernible role, [Footnote 16
] they have a "chilling
effect" on the convicted defendant's exercise of his right to
challenge his first conviction either by direct appeal or
collateral attack. What we have said as to Pearce
demonstrates that it provides no foundation for this claim. To the
contrary, the Court there intimated no doubt about the
constitutional validity of higher sentences in the absence of
vindictiveness despite whatever incidental deterrent effect they
might have on the right to appeal. Colten
represents a view incompatible with petitioner's contention.
Petitioner relies instead on United States v. Jackson,
390 U. S. 570
(1968), in which the Court held unconstitutional
Page 412 U. S. 30
the capital punishment provision of the federal anti-kidnaping
law. By limiting to the jury the power to impose a death sentence,
the statute "discouraged" the exercise by the accused of his rights
to trial by jury and to plead not guilty. Id.
390 U. S. 581
The Court found that the interest of the Government in having the
jury retain the power to render the death penalty could be realized
without this imposition on the rights of the accused. Therefore,
the sentencing structure of the statute was struck down because it
"unnecessarily" and "needlessly chill[ed] the exercise of basic
constitutional rights." Id.
at 390 U. S. 582
did not hold, as subsequent decisions have made
clear, that the Constitution forbids every government-imposed
choice in the criminal process that has the effect of discouraging
the exercise of constitutional rights. In Brady v. United
States, 37 U. S. 742
(1970), Parker v. North Carolina, 397 U.
(1970), and North Carolina v. Alford,
400 U. S. 25
defendants entered pleas of guilty in order to avoid the potential
imposition of death sentences by a jury. Each was dissuaded from
exercising his rights to a jury trial and to plead not guilty. Each
was, in that sense, "discouraged" from asserting his rights, but
the Court found no constitutional infirmity despite the claim in
each case that Jackson
compelled a contrary result.
is particularly instructive. The Court there
canvassed several common plea bargaining circumstances in which the
accused is confronted with the "certainty or probability"
Page 412 U. S. 31
that, if he determines to exercise his right to plead innocent
and to demand a jury trial, he will receive a higher sentence than
would have followed a waiver of those rights. 397 U.S. at
397 U. S. 751
Although every such circumstance has a discouraging effect on the
defendant's assertion of his trial rights, the imposition of these
difficult choices was upheld as an inevitable attribute of any
legitimate system which tolerates and encourages the negotiation of
pleas. [Footnote 18
Mr. Justice Harlan's opinion for the Court in Crampton v.
a companion case to McGautha v. California,
402 U. S. 183
(1971), deals at some length with the constitutional problems
surrounding the imposition of difficult choices in the criminal
process and is of particular relevance, since it arises in the
context of jury sentencing. Petitioner Crampton attacked the Ohio
system of conducting capital trials. Ohio allowed the jury to
determine guilt and punishment in a single trial and a single
verdict, and Crampton complained that due process required a
bifurcated trial, because, in a single trial, he could not argue
his case for mitigation of punishment to the jury without forgoing
his right to remain silent on the issue of guilt. Id.
402 U. S.
-221. Thus, the free exercise of his Fifth Amendment
right to remain silent was "chilled" by the prospect that a harsher
jury sentence might ensue. [Footnote 19
] The Court did not agree, however, that the
burden imposed on that right was impermissible.
Page 412 U. S. 32
In terms pertinent to the case before us today, the Court in
"The criminal process, like the rest of the legal system, is
replete with situations requiring 'the making of difficult
judgments' as to which course to follow. . . . Although a defendant
may have a right, even of constitutional dimensions, to follow
whichever course he chooses, the Constitution does not, by that
token, always forbid requiring him to choose."
at 402 U. S. 213
Recognizing that the inquiry, by its very nature, must be made on a
case-by-case basis, the Court indicated that the "threshold
question is whether compelling the election impairs to an
appreciable extent any of the policies behind the rights involved."
The choice imposed by the Ohio system was similar to
the choice frequently faced by a criminal defendant in deciding
whether to assert his right to remain silent. And the fact that the
consequence of silence might be a harsher sentence was not regarded
as a distinguishing factor.
These cases, we think, erase any question whether
might call for abrogation of Georgia's
unrestricted jury resentencing process. Jury sentencing, based on
each jury's assessment of the evidence it hears and appraisal of
the demeanor and character of the accused, is a legitimate
at 412 U. S. 21
Just as in the guilty plea cases and Crampton,
incidental consequence of that practice [Footnote 20
] is that it
Page 412 U. S. 33
may require the accused to choose whether to accept the risk of
a higher sentence or to waive his rights. We see nothing in the
right to appeal or the right to attack collaterally a conviction,
even where constitutional errors are claimed, which elevates those
rights above the rights to jury trial and to remain silent.
Petitioner was not himself "chilled" in the exercise of his
right to appeal by the possibility of a higher sentence on retrial,
and we doubt that the "chill factor" will often be a deterrent of
any significance. Unlike the guilty plea situation and, to a lesser
extent, the non-bifurcated capital trial, the likelihood of
actually receiving a harsher sentence is quite remote at the time a
convicted defendant begins to weigh the question whether he will
appeal. Several contingencies must coalesce. First, his appeal must
succeed. Second, it must result in an order remanding the case for
retrial, rather than dismissing outright. Third, the prosecutor
must again make the decision to prosecute, and the accused must
again select trial by jury rather than securing a bench trial or
negotiating a plea. [Footnote
] Finally, the jury must again convict,
Page 412 U. S. 34
and then ultimately the jury or the judge must arrive at a
harsher sentence in circumstances devoid of a genuine likelihood of
vindictiveness. While it may not be wholly unrealistic for a
convicted defendant to anticipate the occurrence of each of these
events, [Footnote 22
especially in the
Page 412 U. S. 35
infrequent case in which his claim for reversal is strong and
his first sentence was unusually low, we cannot agree with
petitioner that such speculative prospects interfere with the right
to make a free choice whether to appeal.
Guided by the precedents of this Court, these are the
conclusions we reach. The rendition of a higher sentence by a jury
upon retrial does not violate the Double Jeopardy Clause. Nor does
such a sentence offend the Due Process Clause so long as the jury
is not informed of the prior sentence and the second sentence is
not otherwise shown to be a product of vindictiveness. The choice
occasioned by the possibility of a harsher sentence, even in the
case in which the choice may in fact, be "difficult," does not
place an impermissible burden on the right of a criminal defendant
to appeal or attack collaterally his conviction.
Mr. JUSTICE DOUGLAS dissents for the reasons stated in his
dissenting opinion in Moon v. Maryland, 398 U.
, 398 U. S. 321
(1970). He also agrees with MR. JUSTICE STEWART and MR. JUSTICE
MARSHALL that establishing one rule for resentencing by judges and
another for resentencing by juries burdens the defendant's right to
choose to be tried by a jury after a successful appeal. United
States v. Jackson, 390 U. S. 570
Petitioner was indicted under a statute that provided for the
following range of punishments:
"Robbery by open force or violence shall be punished by death,
unless the jury recommends mercy, in which event punishment shall
be imprisonment in the penitentiary for life: Provided, however,
the jury in all cases may recommend that the defendant be
imprisoned in the penitentiary for not less than four years nor
longer than 20 years, in the discretion of the court."
Ga.Code Ann. § 26-2502 (1935), replaced by Ga.Code Ann. §
For a detailed description of the unique unsworn statement
practice in Georgia, see Ferguson v. Georgia, 365 U.
During oral argument in this Court, counsel disagreed as to
whether the prosecutor asked for the death penalty at the first
trial. Tr. of Oral Arg. 13, 26, 32-33. At the Court's request,
counsel have filed post-argument affidavits on this question.
Although the closing arguments themselves were not transcribed, the
State prosecutor states that, while his memory is not entirely
clear on the matter, his notes indicate, and his customary practice
suggests, that he asked for the death sentence at both trials. Any
remaining doubt is foreclosed by the affidavit filed by the
attorney who represented petitioner during the first trial. He
states unequivocally that the prosecutor argued "vigorously" in
favor of imposition of the death penalty during the closing
argument in that trial.
During the second trial, petitioner's counsel from the first
trial was called to testify in petitioner's behalf in support of
his insanity defense. The substance of his testimony was that he
had an ample opportunity to study petitioner during the previous
proceedings, and that he was convinced that petitioner was
suffering from a "mental defect." He explained that, despite his
own evaluation, he acquiesced in petitioner's request that he not
interpose an insanity defense at that time.
At the most, then, the jury might have speculated as to whether
petitioner's retrial was the product of a mistrial or of a reversal
of a prior conviction. Indeed, counsel for respondent indicated at
oral argument that Georgia has many more retrials occasioned by
mistrials than retrials following conviction reversals. Tr. of Oral
the Fifth Circuit opinion in the instant case
(455 F.2d 640 (1972)), and Casias v. Beto,
459 F.2d 54
(CA5 1972), with Levine v. Peyton,
444 F.2d 525 (CA4
1971), and Pendergrass v. Neil,
456 F.2d 469 (CA6 1972)
(pet. for cert. pending,
No. 71-1472). State court
decisions on this question appear uniformly to hold Pearce
inapplicable to jury resentencing. See
cases discussed in
Aplin, Sentence Increases on Retrial After North Carolina v.
39 U.Cin.L.Rev. 427, 430-432 (1970).
Georgia is one of 12 States that provide for jury sentencing in
at least some categories of noncapital felony cases. Aplin,
6, at 429 and
Stubbs, Jury Sentencing in Georgia -- Time
For a Change?, 5 Ga. St.B.J. 421 (1969); Note, Jury Sentencing in
Virginia, 53 Va.L.Rev. 968 (1967); President's Commission on Law
Enforcement and Administration of Justice, The Challenge of Crime
in a Free Society 145 (1967), and American Bar Association Project
on Standards for Criminal Justice, Sentencing Alternatives and
Procedures § 1.1 (Approved Draft 1968) (both recommending the
abolition of jury sentencing).
T. Gaddis, Birdman of Alcatraz (1955); R. Stroud,
Diseases of Canaries (1935); R. Stroud, Digest on the Diseases of
Birds (1939); Stroud v. United States,
283 F.2d 137 (CA10
1960), cert. denied,
365 U.S. 864 (1961).
Brief for Petitioner 9; Tr. of Oral Arg. 441.
While there is no per se
constitutional right to
appeal, this Court has frequently held that, once a State
establishes an appellate forum, it must assure access to it upon
terms and conditions equally applicable and available to all.
North Carolina v. Pearce, 395 U.
, 395 U. S. 724
(1969); Griffin v. Illinois, 351 U. S.
(1956); Douglas v. California, 372 U.
(1963); Rinaldi v. Yeager, 384 U.
(1966). See also Johnson v. Avery,
393 U. S. 483
and accompanying text. See also n
Finally, depending upon the circumstances, it may be a desirable
precaution for the trial judge to give the same instructions on the
range of punishment at both trials and for the prosecutor to seek
the same sentence in each case. See n
It has been suggested that higher sentences on retrial might
result from vindictiveness on the part of the prosecutor. As
punishment for a successful appeal, for instance, a prosecutor
might recommend to the jury, and strenuously argue in favor of, a
higher sentence than he previously sought. No such indication
exists on this record, since the prosecutor vigorously urged the
imposition of the death penalty at the first trial. In any event,
it would be erroneous to infer a vindictive motive merely from the
severity of the sentence recommended by the prosecutor. Prosecutors
often request more than they can reasonably expect to get, knowing
that the jury will customarily arrive at some compromise sentence.
The prosecutor's strategy also might well vary from case to case
depending on such factors as his assessment of the jury's reaction
to the proof and to the testimony of witnesses for and against the
State. Given these practical considerations, and constrained by the
bar against his informing the jury of the facts of prior conviction
and sentence, the possibility that a harsher sentence will be
obtained through prosecutorial malice seems remote. See
Williams v. McMann,
436 F.2d 103, 105-106 (CA2 1970).
The State agreed at oral argument that it would be improper to
inform the jury of the prior sentence, and that Pearce
might be applied in a case in which, either because of the highly
publicized nature of the prior trial or because of some other
irregularity, the jury was so informed. Tr. of Oral Arg. 39. We do
not decide, however, whether improperly informing the jury would
always require limitation of the sentence, or whether such error
might be cured by careful questioning of the jury venire or by a
cautionary jury instruction.
Because we have concluded that jury sentencing is not
susceptible of the abuse that prompted the Pearce
decision, we need not consider what remedy would be required if
jury sentencing were subjected to Pearce
restrictions. It is sufficient here to note that, because the
institution of jury sentencing is unlike judicial sentencing in a
number of fundamental ways, those restrictions may not be easily
invoked. Normally, there would be no way for a jury to place on the
record the reasons for its collective sentencing determination, and
ordinarily the resentencing jury would not be informed of any
conduct of the accused unless relevant to the question of guilt.
Note, supra, n
8, at 978-980; Stubbs, supra, n
8, at 428-429; Lagront, Assessment of
Punishment -- A Judge or Jury Function?, 38 Tex.L.Rev. 835, 837-842
(1960). These important differences would not be entirely overcome
by requiring that jury trials be bifurcated, as suggested by the
Sixth Circuit in Pendergrass v. Neil,
456 F.2d at 472
(pet. for cert. pending,
No. 71-1472). While some jury
sentencing States have adopted bifurcated jury trials, in which the
jury assesses the punishment in a separate proceeding after a
verdict of guilty has been rendered (see
6, at 430,
441-442; Ga.Code Ann. § 27-2534 (1972)), bifurcation alone would
not wipe away the fundamental differences between .jury and
judicial sentencing. It may make little sense to supply the jury
with information about the defendant's conduct if the goal of jury
sentencing is not necessarily to fit the punishment to the
offender, and if the jury is, therefore, not concerned about
matters considered pertinent to judicial sentencing.
Petitioner and recent court of appeals cases suggest that an
approximation of the Pearce
limitations could be realized
either by instructing the jury that it may return no verdict higher
than the former sentence, or by empowering the judge to reduce the
second sentence whenever it exceeds the former sentence. See
Levine v. Peyton,
444 F.2d 525 (CA4 1971); Pendergrass v.
Although these alternatives would provide an
absolute protection from the possibility of vindictiveness, they
would also interfere with ordinary sentencing discretion in a
manner more intrusive than contemplated by Pearce.
would achieve, in the name of due process, the substance of the
result we have declined to approve under the Double Jeopardy
During oral argument, Tr. of Oral Arg. 11-12, petitioner's
counsel seemed to concede the absence of an improper motivation on
the jury's part:
"Question. Did the jury know anything about the first
"[Petitioner's Counsel]. No, they did not."
"* * * *"
"Question. Was there any possibility of vindictiveness?"
"[Petitioner's Counsel]. There is none, obviously not."
"Question. Why not?"
"[Petitioner's Counsel]. Because the jury did not know [about]
the first sentence."
In Brady v. United States, 397 U.
(1970), the Court succinctly articulated the
narrow holding in Jackson:
"Because the legitimate goal
of limiting the death
penalty to cases in which a jury recommends it could be
without penalizing those defendants who plead not
guilty and elect a jury trial, the death penalty provision
'needlessly penalize[d] the assertion of a constitutional
at 397 U. S. 746
The legitimacy of the practice of "plea bargaining," as the
Court noted last Term in Santobello v. New York,
404 U. S. 257
(1971), has not been doubted, and, where "properly administered,"
it is to be "encouraged" as an "essential" and "desirable"
"component of the administration of justice." Id.
404 U. S.
-261. See also Brady v. United States,
at 397 U. S.
The case was argued on the theory that the Ohio single
proceeding created a "tension between constitutional rights," 402
U.S. at 402 U. S. 211
similar to that involved in Simmons v. United States,
390 U. S. 377
(1968). The Court declined to decide the case in those terms, 402
U.S. at 402 U. S.
-213, but focused instead on the extent to which the
lack of a bifurcated proceeding created a burden on the exercise of
the right to remain silent, or, stated differently, encouraged its
at 402 U. S.
We reiterate that we are dealing here only with the case in
which jury sentencing is utilized for legitimate purposes, and not
as a means of punishing or penalizing the assertion of protected
are clear, and
subsequent cases have not dulled their force: if the only objective
of a state practice is to discourage the assertion of
constitutional rights, it is "patently unconstitutional.'"
Shapiro v. Thompson, 394 U. S. 618,
394 U. S. 631
A footnote in the Court of Appeals opinion indicates that
petitioner argued in that court that unrestricted jury resentencing
would have an impermissible "chilling effect" on his right to
select a jury trial upon retrial. 455 F.2d at 641 n. 7. Although
this argument is not mentioned in his appellate brief in this
Court, petitioner's counsel touched on it briefly at oral argument.
Tr. of Oral Arg. 13-14. What we have said here regarding the
collective force of Pearce, Colten,
the guilty plea cases,
should make clear that this claim is without
is not to the contrary. Unlike that case,
the choice here is subject to considerable speculation. Applying
the judge may or may not give a sentence as high
as the jury might give. More importantly, the discouraging effect
cannot be said to be "needless." 390 U.S. at 390 U. S. 583
The parameters of judge and jury sentencing power, given the
binding nature of Pearce,
can only be made coterminous by
either (1) restricting the jury's power of independent assessment,
or (2) requiring jury sentencing in every felony case irrespective
whether guilt is determined by a bench trial or a guilty plea after
reversal of the conviction. Either alternative would interfere with
concededly legitimate state interests, and thus the burden imposed
on the right to trial by jury is no less "necessary," post
at 412 U. S. 44
than the burdens tolerated in Brady
Where the burden of the choice is as speculative as this one is,
such incursions upon valid state interests are not justified.
In practical terms, as those closest to the criminal appellate
process well know (see
Hermann, Frivolous Criminal
Appeals, 47 N.Y.U.L.Rev. 701 (1972); Carrington, Crowded Dockets
and the Courts of Appeals: The Threat to the Function of Review and
the National Law, 82 Harv.L.Rev. 542 (1969)), the likelihood that a
convicted defendant will forgo his right to appeal or to attack
collaterally his conviction has been diminishing in recent years,
in part as a consequence of decisions removing roadblocks and
disincentives to appeal. See, e.g., Griffin v. Illinois,
351 U. S. 12
(1956); Douglas v. California, 372 U.
(1963); Anders v. California,
386 U. S. 738
(1967); Johnson v. Avery, 393 U.
(1969); Younger v. Gilmore, 404 U. S.
(1971). Available statistical evidence, from both the
federal and state criminal systems, demonstrates that the volume
and rate of appeal have risen steadily over the last few years. In
a criminal system in which appeal is the rule, rather than the
exception, the possibility of a higher sentence is a remote
American Bar Association Project on
Standards for Criminal Justice, Criminal Appeals 19-21 (Approved
Draft 1970) ("The trend today is clearly toward a much higher rate
of appeal"); Administrative Office of the U.S. Courts, 1972 Annual
Report of the Director II-11 (direct criminal appeals in 1972 up
nearly 25% from 1971); Carrington, supra,
(approximately a 200% increase in federal direct criminal appeals
from 1959-1960 to 1966-1967).
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins,
In North Carolina v. Pearce, 395 U.
, 395 U. S. 725
the Court held that
"vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he
receives after a new trial."
As I see it, there is a real danger of such vindictiveness
Page 412 U. S. 36
even when a jury, rather than a judge, imposes the sentence
after retrial. Because the Court today declines to require any
procedures to eliminate that danger, even though procedures quite
similar to those adopted in Pearce
could readily be
applied without sacrificing the values of jury sentencing, I must
The true threat of vindictiveness at a retrial where the jury
metes out the sentence comes from the trial judge and prosecutor.
Either or both might have personal and institutional reasons for
desiring to punish a defendant who has successfully challenged his
conviction. Out of vindictiveness, the prosecutor might well ask
for a sentence more severe than that meted out after the first
trial, and a judge by the manner in which he charges the jury might
influence the jury to impose a higher sentence at the second trial.
In the present case, for example, while the petitioner was
sentenced to 15 years' imprisonment after his first trial, on
retrial, the prosecutor asked the jury to impose the death penalty,
and the judge instructed the jurors that they could inflict that
punishment. It is said that the prosecutor and judge gave the jury
the option to impose capital punishment at the retrial simply as a
tactical move to assure that the petitioner would again receive at
least a 15-year sentence. But it is not inconceivable in this
setting that a prosecutor or a judge might seek to secure a higher
sentence for a defendant in order to punish him for his successful
Page 412 U. S. 37
It was to purge that possibility of retaliation that
required prophylactic measures for judicial
sentencing. Without such procedures, as the Court pointed out in
it would be extremely difficult for a defendant to
establish that his higher sentence was the result of a retaliatory
I agree with the Court today that some measures are ill-suited
to eliminating the possibility of retaliation in a case where the
jury imposes the sentence. For example, the jury ought not to be
told that its sentencing power is limited by the term imposed at
the first trial, for the jury might then impose a less severe
sentence in reaching a compromise verdict. But there is no reason
why the trial judge should not be compelled to reduce any sentence
imposed by the jury after retrial to that imposed after the first
trial, unless he can affirmatively set forth the kind of reasons
required in Pearce
for the increased sentence.
"Those reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing
395 U.S. at 395 U. S.
As in Pearce,
that procedure would serve to minimize
the possibility that vindictiveness had played a role in the
sentence a defendant received after a new trial, and it would free
a convicted man from the fear that a successful challenge to his
conviction might lead to a vindictively imposed harsher sentence
after a second trial. Since this measure would, at the most,
reinstate the sentence imposed by the original jury, none of the
basic purposes served by jury sentencing would be jeopardized.
I also agree with my Brother MARSHALL that allowing a more
severe sentence to be imposed by a jury on retrial, when that
sentence would be impermissible for a judge to impose, is an
infringement upon a defendant's constitutional right to a jury
trial. See United States v. Jackson, 390 U.
. Requiring that a judge reduce a jury-imposed
Page 412 U. S. 38
sentence to that imposed after the first trial, unless he can
make the kind of findings required by Pearce, would eliminate that
illegitimate burden upon a constitutional right.
* The Court finds the possibility of prosecutorial malice
412 U. S. 27
. The only basis for that conclusion appears
to be that the prosecutor may have quite innocent strategic reasons
for requesting an increased sentence after a retrial. But that does
not foreclose the possibility that a prosecutor might have quite
vindictive reasons for seeking a more severe penalty, and it
underlines the extraordinary difficulty a defendant would have in
attempting to prove a retaliatory motivation.
MR. JUSTICE MARSHALL, dissenting.
I cannot agree with the Court that it is permissible for a jury,
but not for a judge, to give a defendant, on his retrial, a
sentence more severe than the one he received in his first trial,
without specifying particular aspects of his behavior since the
time of his first trial that justify the enhanced sentence. Such a
rule is defective in two ways. First, the Court acknowledges that a
jury violates the Constitution when it gives such a defendant a
more severe sentence to punish him for successfully taking an
at 412 U. S. 26
Yet, when the costs, in terms of other values served by juries, of
the methods of preventing, detecting, and remedying that kind of
violation are balanced against the minor degree to which
restrictions on jury resentencing impair the values served by jury
sentencing, the need to vindicate the constitutional right warrants
restrictions on juries similar to those we placed on judges in
North Carolina v. Pearce, 395 U.
(1969). Second, as in United States v.
Jackson, 390 U. S. 570
(1968), the possibility that a jury might increase a sentence for
reasons that would be unavailable to a judge unnecessarily burdens
the defendant's right to choose a jury trial. I therefore
I begin with what appears to be common ground. If the jury, on
retrial, has been informed of the defendant's prior conviction and
sentence, the possibility is real that it will enhance his
punishment simply because he successfully appealed. The Court
apparently agrees, ante
at 412 U. S. 27
13, 412 U. S. 28
nn. 115, and suggests that a variety of preventive and remedial
measures must be taken to minimize
Page 412 U. S. 39
that possibility. Those measures, I believe, are too intrusive
on the process of selecting the jury and insulating its
deliberations from inquiry. In Pearce,
we devised a remedy
for judicial vindictiveness in sentencing that was broader than the
constitutional vice, because a remedy more closely tailored to the
vice would too severely intrude on the process by which the judge
made his sentencing decisions. A similar remedy is justified for
the same reasons in the case of jury resentencing.
Of course, a jury that does not know of a prior conviction and
sentence cannot take them into account when it resentences the
offender. But there is a real possibility that a jury will know of
a prior sentence and will enhance the punishment it imposes out of
vindictiveness, as the Court apparently concedes in limiting its
holding to "properly controlled retrial[s]." Ante
412 U. S. 26
And only when the possibility of vindictiveness can confidently be
said to be de minimis
distinguished. Even in Pearce,
we acknowledged the
difficulty in establishing that sentences were frequently enhanced
out of vindictiveness. 395 U.S. at 395 U. S. 725
n. 20. Indeed, we could cite only studies that showed that
increased sentences on reconviction were "far from rare,"
we had before us no evidence at all that
vindictiveness actually played a part in a substantial number of
cases where sentences were increased. [Footnote 2/1
Page 412 U. S. 40
Given the possibility of vindictiveness, a defendant is entitled
to a remedy designed to eliminate, or at least minimize, that
possibility. It follows, I believe, that the defense is entitled to
have prospective jurors asked carefully framed questions designed
to explore their knowledge of a prior conviction and sentence.
Cf. Ham v. South Carolina, 409 U.
(1973). But it will inevitably be difficult to
frame questions that will do so without informing the jurors of
those facts in the very act of questioning them. In addition, the
right to have questions asked of prospective jurors would be
meaningless unless the defense could challenge jurors for cause
solely on the basis of the answers to those questions. Yet nearly
all of the States in which jury sentencing is required have large
rural areas, [Footnote 2/2
it is quite likely that a retrial after a successful appeal will be
a notorious public event. It seems to me probable, then, that the
right recognized by the Court will substantially impede expeditious
selection of juries, for it will generally be easy to make a
threshold showing of local publicity, and may often so severely
limit the number of available jurors as to raise serious questions
of the representativeness of the jury finally chosen. [Footnote 2/3
The Court suggests that a curative instruction might minimize
the possibility that the jury will be improperly influenced by its
knowledge of a prior conviction or
Page 412 U. S. 41
at 412 U. S. 28
14. We have already recognized, however, that it is quite
unrealistic to believe that instructions to disregard evidence that
a jury might treat in a manner highly prejudicial to a defendant
will often be followed. Jackson v. Denno, 378 U.
, 378 U. S.
-389 (1964); Bruton v. United States,
391 U. S. 123
391 U. S.
-137 (1968). Cf.
E. Morgan, Some Problems of
Proof Under the Anglo-American System of Litigation 105 (1956). And
curative instructions may serve only to highlight the problem. Not
every such instruction is ineffective, of course, but I would not
burden the judicial process with difficult inquiries into the
effectiveness of such an instruction where, as here, the State's
interest in having sentences imposed by a jury can easily be
satisfied without requiring such inquiries. See infra
412 U. S.
Finally, a post-sentencing inquiry of a jury that imposes a more
severe sentence might disclose that vindictiveness played no part
in its sentencing decision. But this could be achieved only by
sacrificing the traditional secrecy of jury deliberations. Cf.
Clark v. United States, 289 U. S. 1
and cases cited therein.
Because of the differing institutional positions of judge and
jury, [Footnote 2/4
] and because
the jury that sentences also convicts,
Page 412 U. S. 42
and so focuses on the facts of the offense, the question of
applying the limitations imposed by Pearce
by judges to resentencing by juries would surely be a close one if
only the issue of possible vindictiveness were involved. Since no
state interests in jury sentencing would be impaired to any
significant degree by imposing such limitations, however, the
question should be resolved in favor of limiting the jury's
One group of policies underlying jury sentencing derives from
the belief that juries will be more humane and compassionate than
judges: judge, it is said, represent a centralized government
remote from the details of local life; judges who often must seek
reelection may be unduly swayed by political considerations that
have little impact on jurors; and judges who routinely deal with
criminal cases may become callous and insensitive to the human
problems of defendants. In contrast, the jury has close ties to the
local community, and, because it sits only once and then dissolves,
its members ordinarily have little experience with criminal
Note, Jury Sentencing in Virginia, 53
Va.L.Rev. 968, 988-991 (1967). It is somewhat anomalous, however,
to contend that, because juries are more compassionate than judges,
they may impose a sentence more severe than a judge may
constitutionally impose. I cannot understand, therefore, how the
belief that juries are more compassionate than judges justifies a
rule that permits a jury on retrial to impose a sentence more
severe than that imposed by the original jury.
The second policy implicated in jury sentencing is that the jury
serves as a "link between contemporary community values and the
penal system," Witherspoon v. Illinois, 391 U.
, 391 U. S. 519
n. 15 (1968). More accurately than a judge, the jury reflects the
community's moral attitude toward the particular offender. The
jury's function in sentencing, then, is to make the punishment
Page 412 U. S. 43
fit the crime, not the criminal. Limitations on the sentences a
jury might impose do impair its ability to decide what punishment
fits the crime before it. But in cases like this one, one jury has
already determined what it, as a representative of community views,
thinks is an appropriate sentence. Indeed, it has done so after a
trial in which reversible error, presumably prejudicial to the
defendant, occurred. Thus, this state interest is not substantially
impaired by limitations designed to preclude the second jury from
imposing a sentence based, in part, on a desire to punish the
defendant for taking an appeal.
In short, even if only the question of vindictiveness were
involved in the case of jury resentencing, I would hold that
limitations similar to those in Pearce
must be imposed on
jury resentencing: alternative methods of minimizing vindictiveness
may seriously impair other values, and the limitations of
do not greatly affect the values served by jury
sentencing. [Footnote 2/5
vindictiveness alone is not the only issue here. For, by
Page 412 U. S. 44
one rule for sentencing by judges and another for sentencing by
juries, the Court places an unnecessary burden on the defendant's
right to choose to be tried by a jury after a successful
We held unconstitutional in United States v. Jackson,
390 U. S. 570
(1968), a sentencing structure that placed an unnecessary burden on
a defendant's right to a jury trial. The Court today purports to
on the ground that subsequent cases
show that Jackson
does not make unconstitutional
sentencing structures that impose a burden on the exercise of
constitutional rights as "an incidental consequence." Ante
at 412 U. S. 32
Yet, in Jackson,
"The question is not whether the chilling effect is
'incidental,' rather than intentional; the question is whether that
effect is unnecessary, and therefore excessive."
390 U.S. at 390 U. S. 582
Brady v. United States, 397 U. S. 742
(1970), and Crampton v. Ohio, 402 U.
(1971), the cases that the Court now relies on,
did not overrule Jackson;
nor did they change the
constitutional test. The question is still whether the burden on
the exercise of the right to be tried by a jury is necessary, not
whether it is only incidental to the accomplishment of some
legitimate state purpose.
a defendant sought to vacate his guilty plea
on the ground that he had pleaded guilty only to avoid capital
punishment, under a statute that provided for the death penalty
only on the recommendation of the jury. The Court viewed his
argument as applicable to
Page 412 U. S. 45
every kind of inducement that the prosecution offers to a
defendant in order to elicit a plea of guilty. See
U.S. at 397 U. S.
-753. Thus, on the Court's analysis, upholding his
challenge would have necessarily invalidated the widespread
practice of plea bargaining, which the Court thought essential to
our system of criminal justice. The burden on the exercise of a
defendant's right not to incriminate himself was therefore
necessary, in the terms of the analysis required by
Similarly, the defendant in Crampton
failure to separate the trial of a capital case into a
guilt-determining phase and a sentencing phase deterred him from
testifying to facts bearing on sentence alone, for to testify would
have opened him up to impeachment and to questions bearing on
guilt. To the Court, however, such pressure was indistinguishable
from that placed on him by a very powerful case for the prosecution
that might require rebuttal, or by a large number of other widely
accepted procedural rules. See
402 U.S. at 402 U. S.
-216. As in Brady,
then, the Court could not
agree with the defendant without holding unconstitutional many
procedures that it thought essential to the criminal process.
applied the test of
necessity. The Court today does not, as it concedes when it says
that, "[where] the burden . . . is as speculative as this one is,"
constitutional limitations on resentencing are not justified.
at 412 U. S. 34
21. But Jackson, Brady,
involve assessments of the relative severity of the burden on the
right to choose to be tried by a jury; [Footnote 2/6
] they turned on the question of strict
Page 412 U. S. 46
necessity. [Footnote 2/7
legitimate state interest is materially advanced by permitting a
second jury to enhance punishment without limitations like those
placed by Pearce
on judges, and such limitations would not
substantially affect any such interest. Thus, the rule endorsed by
the Court today is not only unnecessary, but it unquestionably
burdens a defendant's choice of jury trial after a successful
appeal. [Footnote 2/8
I believe that Pearce
States with jury sentencing adopt procedures by which juries
resentencing an offender are precluded from considering the fact
that the offender successfully appealed in determining the new
sentence, and so I dissent.
I assume that the Court would treat jury sentencing as it
treated judge sentencing in Pearce
if it were presented
with the same kind of evidence we drew on in Pearce.
Cf. Witherspoon v. Illinois, 391 U.
, 391 U. S.
-518 (1968). Because of the differing institutional
positions of judges, who will be repeatedly reviewed by appellate
courts, and juries, which are not continuing bodies, cf.
Illinois v. Somerville, 410 U. S. 458
410 U. S. 477
(1973) (MARSHALL, J., dissenting), evidence supporting the
inference that vindictiveness may not infrequently influence jury
decisions would be especially valuable from cases in which the
evidence on retrial was not substantially different from the
evidence at the first trial.
In addition to Georgia, these States include Arkansas, Kentucky
Missouri, Oklahoma, Tennessee, and Virginia.
Even on the Court's analysis, if a defendant must proceed to
trial before a jury that knows of his prior conviction and
sentence, due process would require limitations on the sentence
imposed, though such limitations would not be required in "properly
controlled retrial[s]." Thus, the Court does not today endorse the
proposition that limitations on jury sentencing on a retrial are
never required. See ante
at 412 U. S. 28
14. At most, it holds only that, in the absence of knowledge of the
prior conviction and sentence, no limitations are constitutionally
The Court distinguishes Pearce
from this case in part
on the ground that, there,
"the second sentence [was] meted out by the same judicial
authority whose handling of the prior trial was sufficiently
unacceptable to have required a reversal of the conviction,"
"the jury, unlike the judge who has been reversed, will have no
personal stake in the prior conviction and no motivation to engage
at 412 U. S. 27
The Court cannot mean that Pearce himself was resentenced by the
same judge who sentenced him in the first place, for Pearce was
tried before two different judges. See State v. Pearce,
266 N.C. 234, 236, 145 S.E.2d
, 920 (1966) (Judge Williams at first trial); State v.
268 N.C. 707, 708, 151 S.E.2d
, 572 (1966) (Judge McLaughlin at second trial). Thus, the
only differences in this respect are institutional, not personal:
juries are not continuing bodies and may have little interest in
deterring appeals or vindicating a colleague.
The Court suggests that the limitations of Pearce
cannot easily be adapted to jury sentencing. Ante
412 U. S. 28
n. 15. But procedures like bifurcation, special verdicts stating
the reasons for the sentence imposed or stating that the prior
conviction and sentence were not taken into account, instructing
the jury that the maximum sentence available to it is that imposed
earlier, or empowering the judge to reduce the sentence if it
exceeds the prior sentence, are some obvious alternatives. The
Court suggests that the first two are inconsistent with the basic
purpose of jury sentencing -- making the punishment fit the crime
-- and that the latter two "would achieve, in the name of due
process, the substance of the result we have declined to approve
under the Double Jeopardy Clause." Ante
at 412 U. S. 29
15. The latter point confuses limitations imposed by the
Constitution with choices a State might make to carry out the
policies it seeks to vindicate through jury sentencing; if a State
chooses to impose a maximum limit on resentencing instead of
establishing a bifurcated procedure, for example, the result is
not, even in substance, the result urged under the Double Jeopardy
Clause, for it results from choice among alternatives and not from
constitutional commands. Similarly, bifurcation may inject into
jury sentencing considerations that the State thinks are irrelevant
to its purposes in establishing a system in which juries are the
sentencing authority, and it may decide to adopt some other method
of complying with the constitutional requirements. But surely there
is no clear conflict between bifurcation or special verdicts and
the purposes of jury sentencing.
Georgia permits a defendant to plead not guilty and waive his
right to jury trial. See Berry v. State,
61 Ga.App. 315, 6
S.E.2d 148 (1939). Of the States with jury sentencing, apparently
only Kentucky does not permit such a waiver. See Meyer v.
(Ky.1971). Where the prosecution must agree to such a waiver,
Fed.Rule Crim.Proc. 23(a), it would of course be
impermissible to refuse agreement solely because a judge would be
restricted in resentencing, while a jury would not, cf. Singer
v. United States, 380 U. S. 24
380 U. S. 37
In discussing whether the holding today burdens the right to
appeal, the Court says that, for the undesired outcome to occur,
"[s]everal contingencies must coalesce." Thus,
"the likelihood of actually receiving a harsher sentence is
quite remote at the time a convicted defendant begins to weigh the
question whether he will appeal."
at 412 U. S. 33
But, of the list the Court provides, only two remain contingent
when the defendant must decide to waive or insist upon a jury trial
-- reconviction and sentence. The Court acknowledges that, in some
cases, even when all the contingencies must be taken into account,
the possibility of a harsher sentence might well affect the
decision to appeal. Ante
at 412 U. S. 34
The burden will surely be substantial when the contingencies are
reduced to two.
The Court, in its footnote discussing this argument, does assert
that the burden "cannot be said to be needless.'" Ante
at 412 U. S. 33-34,
n. 21. The sentence following that assertion does not supply any
reason why the burden is necessary; it simply states two ways in
which the burden might be eliminated without saying why those
alternatives are so impractical as to make necessary the burden
that, after today's decision, may be placed on the right to jury