Missouri law provides only two possible sentences for a
defendant convicted of capital murder: (a) death, or (b) life
imprisonment without eligibility for probation or parole for 50
years. Under state statutes, a separate presentence hearing, at
which additional evidence in mitigation and aggravation of
punishment is heard, must be held before the same jury that found
the defendant guilty; the prosecution must prove the existence of
aggravating circumstances beyond a reasonable doubt before the
death penalty may be imposed; and a jury that imposes the death
penalty must designate in writing the aggravating circumstance or
circumstances that it finds beyond a reasonable doubt. The guilt or
innocence phase of petitioner's state court trial resulted in a
verdict of guilty of capital murder, and his presentence hearing
resulted in the jury's additional verdict fixing petitioner's
punishment at life imprisonment without eligibility for probation
or parole for 50 years. After granting petitioner's post-trial
motion for a new trial because of the intervening decision in
Duren v. Missouri, 439 U. S. 357,
which held that Missouri's allowing automatic exemption of women
from jury service was unconstitutional, the trial court announced
that it would grant petitioner's motion, based on double jeopardy
grounds, to strike the prosecution's notice that it intended again
to seek the death penalty on the basis of the same aggravating
circumstances it had sought to prove at the first trial. The
Missouri Court of Appeals denied the State's request for a writ of
prohibition or mandamus, but the Missouri Supreme Court ultimately
granted a writ of prohibition.
Held: Because, under Missouri law, the sentencing
proceeding at petitioner's first trial was like the trial on the
question of guilt or innocence, the protection afforded by the
Double Jeopardy Clause to one acquitted by a jury is available to
him, with respect to the death penalty, at his retrial. The
reasoning of
Stroud v. United States, 251 U. S.
15, is not controlling. Pp.
451 U. S.
437-446.
(a) This Court generally has concluded that, because the
imposition of a particular sentence usually is not regarded as an
"acquittal" of any more severe sentence that could have been
imposed, the Double Jeopardy Clause imposes no absolute prohibition
against the imposition of a harsher sentence at retrial after a
defendant has succeeded in having his original conviction set
aside.
See North Carolina v.
Pearce,
Page 451 U. S. 431
395 U. S. 711;
Chaffin v. Stynchcombe, 412 U. S. 17;
Stroud v. United States, supra; United States v.
DiFrancesco, 449 U. S. 117.
However, in those cases, unlike the present case, the sentencing
procedures did not have the hallmarks of a trial on guilt or
innocence. In the first three cases, there was no separate
sentencing proceeding at which the prosecution was required to
prove additional facts in order to justify the particular sentence,
and the sentencer's discretion in determining punishment was
essentially unfettered. Although
United States v. DiFrancesco,
supra,. involved a separate sentencing procedure, the
prosecution was required to prove an additional fact warranting a
harsher penalty only by a preponderance of the evidence, and the
sentencer's choice of punishment was far broader than the two
choices available to petitioner's jury under Missouri law. Pp.
451 U. S.
437-441.
(b) The rationale of
Burks v. United States,
437 U. S. 1, which
held that a defendant may not be retried if he obtains a reversal
of his conviction on the ground that the evidence was insufficient
to convict, is relevant here. In the usual sentencing proceeding,
it is impossible, because of the absence of sentencing standards,
to conclude that a sentence less than the statutory maximum
constitutes a decision to the effect that the prosecution has
failed to prove its case. But by enacting a capital sentencing
procedure that resembles a trial on the issue of guilt or
innocence, Missouri explicitly requires the jury to determine
whether the prosecution has "proved its case." Petitioner's
sentence of life imprisonment at his first trial meant that the
jury has already acquitted him of whatever was necessary to impose
the death sentence. Pp.
451 U. S.
441-446.
594 S.W.2d
908, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, and STEVENS, JJ., joined. POWELL, J.,
filed a dissenting opinion, in which BURGER, C.J., and WHITE and
REHNQUIST, JJ., joined,
post, p.
451 U. S.
447.
JUSTICE BLACKMUN delivered the opinion of the Court.
Stroud v. United States, 251 U. S.
15 (1919), concerned a defendant who was convicted of
first-degree murder and sentenced
Page 451 U. S. 432
to life imprisonment, and who then obtained, upon confession of
error by the Solicitor General, a reversal of his conviction and a
new trial. This Court, by a unanimous vote in that case, held that
the Double Jeopardy Clause of the Fifth Amendment [
Footnote 1] did not bar the imposition of the
death penalty when Stroud, at his new trial, was again
convicted.
The issue in the present case is whether the reasoning of
Stroud is also to apply under a system where a jury's
sentencing decision is made at a bifurcated proceeding's second
stage at which the prosecution has the burden of proving certain
elements beyond a reasonable doubt before the death penalty may be
imposed.
I
Missouri law provides two, and only two, possible sentences for
a defendant convicted of capital murder: [
Footnote 2] (a) death, or (b) life imprisonment without
eligibility for probation or parole for 50 years. Mo.Rev.Stat. §
565.008.1 (1978). [
Footnote
3]
Like most death penalty legislation enacted after this Court's
decision in
Furman v. Georgia, 408 U.
S. 238 (1972),
Page 451 U. S. 433
the Missouri statutes contain substantive standards to guide the
discretion of the sentencer. The statutes also afford procedural
safeguards to the convicted defendant. Section 565.006 provides
that the trial court shall conduct a separate presentence hearing
for the defendant who is convicted by a jury of capital murder.
[
Footnote 4] The hearing must
be held before
Page 451 U. S. 434
the same jury [
Footnote 5]
that found the defendant guilty, and "additional evidence in
extenuation, mitigation, and aggravation of punishment" shall be
heard. "Only such evidence in aggravation as the prosecution has
made known to the defendant prior to his trial shall be
admissible." The jury must consider whether the evidence shows that
there exist any of the 10 [
Footnote
6] aggravating circumstances or the 7 mitigating circumstances
specified by the statute,
see §§ 565.012.2 and 565.012.3;
whether any other mitigating or aggravating circumstances
authorized by law exist; whether any aggravating circumstances that
do exist are sufficient to warrant the imposition of the death
penalty; and whether any mitigating circumstances that exist
outweigh the aggravating circumstances. § 565.012.1. A jury that
imposes the death penalty must designate in writing the aggravating
circumstance or circumstances that it finds beyond a reasonable
doubt. § 565.012.4. It also must be convinced beyond a reasonable
doubt that any aggravating circumstance or circumstances that it
finds to exist are sufficient to warrant the imposition of the
death penalty. Missouri Approved Instructions -- Criminal (MAI-Cr)
§ 15.42 (1979). A Missouri jury is instructed that it is not
compelled to impose the death
Page 451 U. S. 435
penalty, even if it decides that a sufficient aggravating
circumstance or circumstances exist and that it or they are not
outweighed by any mitigating circumstance or circumstances. MAI-Cr.
§ 15.46. A jury's decision to impose the death penalty must be
unanimous. If the jury is unable to agree, the defendant receives
the alternative sentence of life imprisonment described above. §
565.006.2; MAI-Cr. § 15.48.
II
In December, 1977, petitioner Robert Bullington was indicted in
St. Louis County, Mo., for capital murder and other crimes arising
out of the abduction of a young woman and her subsequent death by
drowning. [
Footnote 7]
The Circuit Court of St. Louis County granted petitioner's
pretrial motion for a change of venue to Jackson County in the
western part of the State. The prosecution, by letter, informed the
defense that the State would seek the death penalty if the jury
convicted the defendant of capital murder. App. 12. The
letter-notice stated that the prosecution would present evidence of
two aggravating circumstances specified by the statute: that "[t]he
offense was committed by a person . . . who has a substantial
history of serious assaultive criminal convictions," §
565.012.2(1), and that "[t]he offense was outrageously or wantonly
vile, horrible or inhuman in that it involved torture, or depravity
of mind," § 565.012.2(7).
At the guilt or innocence phase of petitioner's trial, the jury
returned a verdict of guilty of capital murder. App. 21. On the
following day, the trial court proceeded to hold the presentence
hearing required by § 565.006.2. Evidence submitted by the
prosecution was received. None was offered by the defense. After
argument by counsel, instructions from the judge, and deliberation,
the jury returned its
Page 451 U. S. 436
additional verdict fixing petitioner's punishment not at death,
but at imprisonment for life without eligibility for probation or
parole for 50 years. App. 27.
Petitioner then moved, on various grounds, for judgment of
acquittal or, in the alternative, for a new trial. While that
motion was pending,
Duren v. Missouri, 439 U.
S. 357 (1979), was decided. In that case, this Court
held that Missouri's constitutional and statutory provisions
allowing women to claim automatic exemption from jury service
deprived a defendant of his Sixth and Fourteenth Amendments right
to a jury drawn from a fair cross-section of the community. The
trial court overruled petitioner's motion for acquittal but,
relying upon
Duren, granted his motion for a new trial.
App. 44.
Soon thereafter, the prosecution served and filed a formal
"Notice of Evidence in Aggravation," stating that it intended again
to seek the death penalty . The notice specified the same
aggravating circumstances the State sought to prove at the first
trial,
see also Tr. of Oral Arg. 36, and asserted that it
would introduce the evidence that was previously disclosed to
defense counsel. App. 45-46. The defense moved to strike the
notice,
id. at 47, arguing that the Double Jeopardy Clause
of the Fifth Amendment (as made applicable to the States through
the Fourteenth Amendment,
Benton v. Maryland, 395 U.
S. 784,
395 U. S. 794
(1969)) barred the imposition of the penalty of death when the
first jury had declined to impose the death sentence.
The trial court announced that it would grant that motion and
would not permit the State to seek the death penalty. Before the
court issued a formal order to this effect, the prosecution sought
a writ of prohibition or mandamus from the Missouri Court of
Appeals for the Western District. After granting a temporary "stop
order," App. 56, the Court of Appeals, without opinion, denied the
State's request and dissolved the stop order.
Id. at 57.
The Supreme Court of Missouri, however, granted the prosecution's
motion for
Page 451 U. S. 437
transfer of the case to that court and issued preliminary writ
of prohibition. After argument, the court, sitting en banc and by a
divided vote, sustained the State's position and made the writ
absolute.
State ex rel. Westfall v. Mason, 594 S.W.2d
908 (1980). It held that neither the Double Jeopardy Clause nor
the Eighth Amendment nor the Due Process Clause barred the
imposition of the death penalty upon petitioner at his new trial,
and that allowing the prosecution to seek capital punishment would
not impermissibly chill a defendant's effort to seek redress for
any constitutional violation committed at his initial trial.
We granted certiorari, 449 U.S. 819 (1980), [
Footnote 8] in order to consider the important
issues raised by petitioner regarding the administration of the
death penalty. [
Footnote 9]
III
It is well established that the Double Jeopardy Clause forbids
the retrial of a defendant who has been acquitted of the crime
charged.
United States v. DiFrancesco, 449 U.
S. 117,
449 U. S.
129-130 (1980);
Burks v. United States,
437 U. S. 1,
437 U. S. 16
(1978);
Page 451 U. S. 438
United States v. Martin Linen Supply Co., 430 U.
S. 564,
430 U. S. 571
(1977);
Fong Foo v. United States, 369 U.
S. 141,
369 U. S. 143
(1962);
Green v. United States, 355 U.
S. 184 (1957). This Court, however, has resisted
attempts to extend that principle to sentencing. The imposition of
a particular sentence usually is not regarded as an "acquittal" of
any more severe sentence that could have been imposed. The Court
generally has concluded, therefore, that the Double Jeopardy Clause
imposes no absolute prohibition against the imposition of a harsher
sentence at retrial after a defendant has succeeded in having his
original conviction set aside.
See North Carolina v.
Pearce, 395 U. S. 711
(1969).
See also United States v. DiFrancesco, 449 U.S. at
449 U. S. 133,
449 U. S.
137-138;
Chaffin v. Stynchcombe, 412 U. S.
17,
412 U. S. 23-24
(1973);
Stroud v. United States, 251 U. S.
15 (1919).
The procedure that resulted in the imposition of the sentence of
life imprisonment upon petitioner Bullington at his first trial,
however, differs significantly from those employed in any of the
Court's cases where the Double Jeopardy Clause has been held
inapplicable to sentencing. The jury in this case was not given
unbounded discretion to select an appropriate punishment from a
wide range authorized by statute. Rather, a separate hearing was
required and was held, and the jury was presented both a choice
between two alternatives and standards to guide the making of that
choice. Nor did the prosecution simply recommend what it felt to be
an appropriate punishment. It undertook the burden of establishing
certain facts beyond a reasonable doubt in its quest to obtain the
harsher of the two alternative verdicts. The presentence hearing
resembled and, indeed, in all relevant respects was like the
immediately preceding trial on the issue of guilt or innocence. It
was itself a trial on the issue of punishment so precisely defined
by the Missouri statutes. [
Footnote 10]
Page 451 U. S. 439
In contrast, the sentencing procedures considered in the Court's
previous cases did not have the hallmarks of the trial on guilt or
innocence. In
Pearce, Chaffin, and
Stroud, there
was no separate sentencing proceeding at which the prosecution was
required to prove -- beyond a reasonable doubt or otherwise --
additional facts in order to justify the particular sentence. In
each of those cases, moreover, the sentencer's discretion was
essentially unfettered. In
Stroud, no standards had been
enacted to guide the jury's discretion. [
Footnote 11] In
Pearce, the judge had a wide
range of punishments from which to choose, with no explicit
standards imposed to guide him. [
Footnote 12] And in
Chaffin, the discretion
given to the jury was extremely broad. That defendant, convicted in
Georgia of
Page 451 U. S. 440
robbery, could have been sentenced to death, to life
imprisonment, or to a prison term of between 4 and 20 years. 412
U.S. at
412 U. S. 18,
and n. 1. The statute contained no standards to guide the jury's
exercise of its discretion. [
Footnote 13]
In only one prior case,
United States v. DiFrancesco,
has this Court considered a separate or bifurcated sentencing
procedure at which it was necessary for the prosecution to prove
additional facts. The federal statute under consideration there,
the "dangerous special offender" provision of the Organized Crime
Control Act of 1970, 18 U.S.C. §§ 3575 and 3576, requires a
separate presentence hearing. The Government must prove the
additional fact that the defendant is a "dangerous special
offender," as defined in the statute, in order for the court to
impose an enhanced sentence. But there are highly pertinent
differences between the Missouri procedures controlling the present
case and those found constitutional in
DiFrancesco. The
federal procedures at issue in
DiFrancesco include
appellate review of a sentence "on the record of the sentencing
court," § 3576, not a
de novo proceeding that gives the
Government the opportunity to convince a second factfinder of its
view of the facts. [
Footnote
14] Moreover, the choice presented to the federal judge under §
3575 is far broader than that faced by the state jury at the
present petitioner's trial. Bullington's Missouri jury was given --
and, under the State's statutes, could be given -- only two
choices, death or life imprisonment. On the other hand, if
Page 451 U. S. 441
the Federal Government proves that a person convicted of a
felony is a dangerous special offender, the judge may sentence that
person to
"an appropriate term not to exceed twenty-five years and not
disproportionate in severity to the maximum term otherwise
authorized by law for such felony."
§ 3575(b). Finally, although the statute requires the Government
to prove the additional fact that the defendant is a "dangerous
special offender," it need do so only by a preponderance of the
evidence.
Ibid. This stands in contrast to the reasonable
doubt standard of the Missouri statute, the same standard required
to be used at the trial on the issue of guilt or innocence.
Jackson v. Virginia, 443 U. S. 307
(1979);
In re Winship, 397 U. S. 358
(1970). The State's use of this standard indicates that, as has
been said generally of the criminal case,
"the interests of the defendant are of such magnitude that . . .
they have been protected by standards of proof designed to exclude
as nearly as possible the likelihood of an erroneous judgment. . .
. [O]ur society imposes almost the entire risk of error upon
itself."
Addington v. Texas, 441 U. S. 418,
441 U. S.
423-424 (1979).
IV
These procedural differences become important when the
underlying rationale of the cases is considered. The State here
relies principally upon
North Carolina v. Pearce.
[
Footnote 15] The
Page 451 U. S. 442
Court's starting point in that case, 395 U.S. at
395 U. S.
719-720, was the established rule that there is no
double jeopardy bar to retrying a defendant who has succeeded in
overturning his conviction.
See, e.g., United States v.
Tateo, 377 U. S. 463
(1964);
United States v. Ball, 163 U.
S. 662,
163 U. S. 672
(1896). The Court stated that this rule rests on the premise that
the original conviction has been nullified and "the slate wiped
clean." 395 U.S. at
395 U. S. 721.
Therefore, if the defendant is convicted again, he constitutionally
may be subjected to whatever punishment is lawful, subject only to
the limitation that he receive credit for time served.
There is an important exception, however, to the rule recognized
in
Pearce. A defendant may not be retried if he obtains a
reversal of his conviction on the ground that the evidence was
insufficient to convict.
Burks v. United States,
437 U. S. 1 (1978).
The reasons for this exception are relevant here:
"[R]eversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that
the government has failed to prove its cases. As such, it implies
nothing with respect to the guilt or innocence of the defendant. .
. ."
"The same cannot be said when a defendant's conviction has been
overturned due to a failure of proof at trial, in which case the
prosecution cannot complain of prejudice, for it has been given one
fair opportunity to offer whatever proof it can assemble. . . .
Since we necessarily accord absolute finality to a jury's
verdict of acquittal -- no matter how erroneous its
decision -- it is difficult to conceive how society has any greater
interest
Page 451 U. S. 443
in retrying a defendant when, on review, it is decided as a
matter of law that the jury could not properly have returned a
verdict of guilty."
Id. at 116 (emphasis in original).
The decision in
Burks was foreshadowed by
Green v.
United States, 355 U. S. 184
(1957). In that case, the defendant had been indicted for
first-degree murder, and the trial court instructed the jury that
it could convict him either of that crime or of the lesser included
offense of second-degree murder. The jury convicted him of
second-degree murder, but the conviction was reversed on appeal.
The Court held that a retrial on the first-degree murder charge was
barred by the Double Jeopardy Clause, because the defendant "was
forced to run the gantlet once on that charge, and the jury refused
to convict him."
Id. at
355 U. S. 190.
See also Price v. Georgia, 398 U.
S. 323 (1970).
Thus, the "clean slate" rationale recognized in
Pearce
is inapplicable whenever a jury agrees or an appellate court
decides that the prosecution has not proved its case.
In the usual sentencing proceeding, however, it is impossible to
conclude that a sentence less than the statutory maximum
"constitute[s] a decision to the effect that the government has
failed to prove its case." [
Footnote 16] In the normal
Page 451 U. S. 444
process of sentencing, "there are virtually no rules or tests or
standards -- and thus no issues to resolve. . . ." M. Frankel,
Criminal Sentences: Law Without Order 38 (1973). Thus,
"[t]he discretion of the judge . . . in [sentencing] matters is
virtually free of substantive control or guidance. Where the judge
has power to select a term of imprisonment within a range, the
exercise of that authority is left fairly at large."
Kadish, Legal Norm and Discretion in the Police and Sentencing
Processes, 75 Harv.L.Rev. 904, 916 (1962).
The Court's cases that have considered the role of the Double
Jeopardy Clause in sentencing have noted this absence of sentencing
standards. In
DiFrancesco, for example, we observed:
"[A] sentence is characteristically determined in large part on
the basis of information, such as the presentence report, developed
outside the courtroom. It is purely a judicial determination, and
much that goes into it is the result of inquiry that is
nonadversary in nature."
449 U.S. at
449 U. S.
136-137. And even if it is the jury that imposes the
sentence, "[n]ormally, there would be no way for the jury to place
on the record the reasons for its collective sentencing
determination. . . ."
Chaffin v. Stynchcombe, 412 U.S. at
412 U. S. 28, n.
15.
By enacting a capital sentencing procedure that resembles a
trial on the issue of guilt or innocence, however, Missouri
explicitly requires the jury to determine whether the
prosecution has "proved its case." Both
Burks and
Green, as has been noted, state an exception to the
general rule relied upon
Page 451 U. S. 445
in
North Carolina v. Pearce. That exception is
applicable here, and we therefore refrain from extending the
rationale of
Pearce to the very different facts of the
present case. Chief Justice Bardgett, in his dissent from the
ruling of the Missouri Supreme Court majority, observed that the
sentence of life imprisonment which petitioner received at his
first trial meant that "the jury has already acquitted the
defendant of whatever was necessary to impose the death sentence."
594 S.W.2d at 922. We agree.
A verdict of acquittal on the issue of guilt or innocence is, of
course, absolutely final. The values that underlie this principle,
stated for the Court by Justice Black, are equally applicable when
a jury has rejected the State's claim that the defendant deserves
to die:
"The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State, with
all its resources and power, should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that, even though innocent, he
may be found guilty."
Green v. United States, 355 U.S. at
355 U. S.
187-188.
See also United States v. DiFrancesco,
449 U.S. at
449 U. S. 136.
The "embarrassment, expense and ordeal" and the "anxiety and
insecurity" faced by a defendant at the penalty phase of a Missouri
capital murder trial surely are at least equivalent to that faced
by any defendant at the guilt phase of a criminal trial. The
"unacceptably high risk that the [prosecution], with its superior
resources, would wear down a defendant,"
id. at
449 U. S. 130,
thereby leading to an erroneously imposed death sentence, would
exist if the State were to have a further opportunity to convince a
jury to impose the ultimate punishment.
Page 451 U. S. 446
Missouri's use of the reasonable doubt standard indicates that,
in a capital sentencing proceeding, it is the State, not the
defendant, that should bear "almost the entire risk of error."
Addington v. Texas, 441 U.S. at
441 U. S. 424.
Given these considerations, our decision today does not at all
depend upon the State's announced intention to rely only upon the
same aggravating circumstances it sought to prove at petitioner's
first trial or upon its statement that it would introduce no new
evidence in support of its contention that petitioner deserves the
death penalty. Having received "one fair opportunity to offer
whatever proof it could assemble,"
Burks v. United States,
437 U.S. at
437 U. S. 16, the
State is not entitled to another.
V
The Court already has held that many of the protections
available to a defendant at a criminal trial also are available at
a sentencing hearing similar to that required by Missouri in a
capital case.
See, e.g., Specht v. Patterson, 386 U.
S. 605 (1967) (due process protections such as right to
counsel, right to confront witnesses, and right to present
favorable evidence are available at hearing at which sentence may
be imposed based upon "a new finding of fact . . . that was not an
ingredient of the offense charged,"
id. at
386 U. S.
608). Because the sentencing proceeding at petitioner's
first trial was like the trial on the question of guilt or
innocence, the protection afforded by the Double Jeopardy Clause to
one acquitted by a jury also is available to him, with respect to
the death penalty, at his retrial. [
Footnote 17] We therefore refrain from extending the
reasoning of
Stroud v. United States, 251 U. S.
15 (1919), to this very different situation.
The judgment of the Supreme Court of Missouri is reversed,
Page 451 U. S. 447
and the case is remanded to that court for further proceedings
not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
". . . nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb. . . ."
[
Footnote 2]
The definition of capital murder in Missouri is set forth in
Mo.Rev.Stat. § 565.001 (1978):
"Any person who unlawfully, willfully, knowingly, deliberately,
and with premeditation kills or causes the killing of another human
being is guilty of the offense of capital murder."
[
Footnote 3]
Section 565.008.1 reads:
"Persons convicted of the offense of capital murder shall, if
the judge or jury so recommends after complying with the provisions
of sections 565.006 and 565.012, be punished by death. If the judge
or jury does not recommend the imposition of the death penalty on a
finding of guilty of capital murder, the convicted person shall be
punished by imprisonment by the division of corrections during his
natural life and shall not be eligible for probation or parole
until he has served a minimum of fifty years of his sentence."
[
Footnote 4]
At all relevant times, § 565.006 read in pertinent part:
"1. At the conclusion of all trials upon an indictment or
information for capital murder heard by a jury, and after argument
of counsel and proper charge from the court, the jury shall retire
to consider a verdict of guilty or not guilty without any
consideration of punishment, and by their verdict ascertain,
whether the defendant is guilty of capital murder, murder in the
first degree, murder in the second degree, manslaughter, or is not
guilty of any offense. . . ."
"2. Where the jury . . . returns a verdict or finding of guilty
as provided in subsection 1 of this section, the court shall resume
the trial and conduct a presentence hearing before the jury . . .
at which time the only issue shall be the determination of the
punishment to be imposed. In such hearing, subject to the laws of
evidence, the jury . . . shall hear additional evidence in
extenuation, mitigation, and aggravation of punishment, including
the record of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant, or the absence of any
such prior criminal convictions and pleas. Only such evidence in
aggravation as the prosecution has made known to the defendant
prior to his trial shall be admissible. The jury . . . shall also
hear argument by the defendant or his counsel and the prosecuting
attorney regarding the punishment to be imposed. The prosecuting
attorney shall open and the defendant shall conclude the argument
to the jury. . . . Upon conclusion of the evidence and arguments,
the judge shall give the jury appropriate instructions and the jury
shall retire to determine the punishment to be imposed. In capital
murder cases in which the death penalty may be imposed by a jury .
. . the additional procedure provided in section 565.012 shall be
followed. The jury . . . shall fix a sentence within the limits
prescribed by law. The judge shall impose the sentence fixed by the
jury. . . . If the jury cannot, within a reasonable time, agree to
the punishment, the judge shall impose sentence within the limits
of the law; except that, the judge shall in no instance impose the
death penalty when, in cases tried by a jury, the jury cannot agree
upon the punishment."
"3. If the trial court is reversed on appeal because of error
only in the presentence hearing, the new trial which may be ordered
shall apply only to the issue of punishment."
The statute was amended by 1979 Mo.Laws H.B. 251, but the
amendment does not affect the present case.
[
Footnote 5]
Because the petitioner in this case was sentenced by a jury at
his first trial, we describe only Missouri's procedure for
imposition of the death penalty by a jury.
[
Footnote 6]
Section 565.012.2 was amended in 1980 to provide two additional
specified aggravating circumstances. Those added were:
"(11) The capital murder was committed while the defendant was
engaged in the perpetration or in the attempt to perpetrate the
felony of rape or forcible rape or the felony of sodomy or forcible
sodomy;"
"(12) The capital murder was committed by the defendant for the
purpose of preventing the person killed from testifying in any
judicial proceeding."
Mo.Rev.Stat. §§ 565.012.2 (11) and (12) (Supp. 1980).
[
Footnote 7]
Petitioner also was charged with the state crimes of kidnaping,
armed criminal action, burglary, and flourishing a dangerous and
deadly weapon. At his trial, petitioner was found guilty of all
these charges.
[
Footnote 8]
Although further proceedings are to take place in state court,
the judgment rejecting petitioner's double jeopardy claim is
"final" within the meaning of the jurisdictional statute, 28 U.S.C.
§ 1257.
Harris v. Washington, 404 U. S.
55 (1971).
See Abney v. United States,
431 U. S. 651
(1977) .
[
Footnote 9]
Subsequent to this Court's decisions in
Furman v.
Georgia, 408 U. S. 238
(1972), and
Gregg v. Georgia, 428 U.
S. 153 (1976), courts of at least two States have
concluded that a defendant originally sentenced to life
imprisonment may not be sentenced to death upon retrial after
reversal of his original conviction. The Texas Court of Criminal
Appeals has relied upon this Court's cases construing the Double
Jeopardy Clause.
Sanne v. State, 609
S.W.2d 762, 766-767 (1980);
Brasfield v.
State, 600
S.W.2d 288, 298 (1980). The Supreme Court of Georgia has
concluded that the imposition of a death sentence in these
circumstances would violate the state law requirement, Ga.Code §
27-2537(c)(3) (1979), that the sentence not be "
excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.'" Ward v.
State, 239 Ga. 205, 208-209, 236 S.E.2d
365, 368 (1977).
[
Footnote 10]
At the statutorily prescribed presentence hearing, counsel make
opening statements, testimony is taken, evidence is introduced, the
jury is instructed, and final arguments are made. The jury then
deliberates and returns its formal punishment verdict. § 565.006.2.
See n 4,
supra. All these steps were taken at petitioner's
presentence hearing following his first trial.
We think it not without some significance that the pertinent
Missouri statute itself speaks specifically of the presentence
hearing in terms of a continuing "trial." Section 565.006.2 states
that, after the verdict of guilty of capital murder is returned,
"the court shall
resume the trial and conduct a
presentence hearing." (Emphasis added.)
[
Footnote 11]
In
Stroud, the relevant statute provided: "Every person
guilty of murder in the first degree shall suffer death," but
"the jury may qualify their verdict by adding thereto 'without
capital punishment;' and whenever the jury shall return a verdict
qualified as aforesaid, the person convicted shall be sentenced to
imprisonment for life."
Act of Mar. 4, 1909, §§ 275, 330, 35 Stat. 1143, 1152, codified
currently as 18 U.S.C. § 1111(b).
At Stroud's retrial, the court essentially repeated the language
of this statute to the jury, giving it no further guidance as to
the appropriate penalty. Record in
Stroud v. United
States, O.T. 1919, No. 276, p. 472. At the previous trial, the
judge had told the jury that he would not "pretend to tell you the
various considerations that come into determining that question [of
the proper sentence]." Record in
Stroud v. United States,
O.T. 1917, No. 694, p 177.
[
Footnote 12]
Pearce was convicted of assault with intent to commit rape, a
state crime punishable by a prison term of between 1 and 15 years.
N.C.Gen.Stat. § 14-22 (1969),
repealed by 1979
N.C.Sess.Laws, ch. 682, § 7, and replaced.
[
Footnote 13]
In discussing the usual attributes of jury sentencing, the Court
in
Chaffin observed:
"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."
412 U.S. at
412 U. S. 28, n.
15. This starkly illustrates the significant difference between the
sentencing procedure in that case and the procedure now required by
Missouri in a capital murder case.
[
Footnote 14]
The statute authorizes
"review of whether the procedure employed was lawful, the
findings made were clearly erroneous, or the sentencing court's
discretion was abused."
18 U.S.C. § 3576.
[
Footnote 15]
The other cases that concern the application of the Double
Jeopardy Clause to sentencing do not add significantly to the
State's argument.
Chaffin relies primarily upon
Pearce. See 412 U.S. at
412 U. S. 23-24.
Stroud states only that
"[t]he fact that the jury may thus mitigate the punishment to
imprisonment for life did not render the conviction less than one
for first degree murder."
251 U.S. at
251 U. S. 18.
Stroud's jury was not required to find any facts in addition to
those necessary for a conviction for first-degree murder in order
to sentence him to death.
DiFrancesco relies upon "the history of sentencing
practices, . . . the pertinent rulings of this Court, [and]
considerations of double jeopardy policy. . . ." 449 U.S. at
449 U. S. 132.
The history of sentencing practices is of little assistance to
Missouri in this case, since the sentencing procedures for capital
cases instituted after the decision in
Furman are unique.
As we see below, considerations of double jeopardy policy favor
petitioner in this case, rather than the State. Missouri,
therefore, can rely only upon
DiFrancesco's discussion of
the Court's prior cases, a discussion that relies chiefly upon
Pearce. See 449 U.S. at
449 U. S.
134-136.
[
Footnote 16]
Sentencing and parole release decisions in this country have
largely been left to the unfettered discretion of the officials
involved. Legislatures have traditionally set high maximum
penalties within which judges must choose specific sentences, but
generally have provided little guidance for the exercise of this
choice. Although the purposes of sentencing have often been defined
as including deterrence, retribution, incapacitation,
rehabilitation, and community condemnation to maintain respect for
law, legislatures have been silent regarding which purposes are
primary and how conflicts among the purposes are to be resolved.
For example, federal law currently requires merely that, in
determining a sentence, the court consider "in its opinion the ends
of justice and best interest of the public." [1 U.S.C. §
4205(b).]
"In effect, sentencing policymaking has traditionally been
delegated to a multitude of independent judges to be exercised in
the context of individual cases. There has been no attempt to
separate policymaking from individual sentencing determinations.
Normally, some type of presentence investigation is available which
attempts to provide an informational basis for an intelligent and
'individualized' sentencing decision. Yet which factors should be
considered, under what circumstances, and how they are to be
weighted are decisions left solely to the unfettered discretion of
the individual decisionmakers."
Hoffman & Stover, Reform in the Determination of Prison
Terms: Equity, Determinacy, and the Parole Release Function, 7
Hofstra L.Rev. 89, 96 (1978) (footnotes omitted).
[
Footnote 17]
Because of our conclusion on the Double Jeopardy Clause issue,
we have no occasion to address petitioner's claims under the Sixth,
Eighth, and Fourteenth Amendments.
JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE REHNQUIST join, dissenting.
This case concerns the force of the Double Jeopardy Clause after
a defendant convicted of a crime and sentenced has succeeded in
having his conviction reversed. The Court holds that the jury's
decision at petitioner's first trial to sentence him to life
imprisonment precludes Missouri from asking the jury at
petitioner's second trial to sentence him to death. I consider the
Court's opinion irreconcilable in principle with the precedents of
this Court.
I
It is well established law that the Double Jeopardy Clause does
not apply to sentencing decisions after retrial with the same force
that it applies to redeterminations of guilt or innocence. Since
Stroud v. United States, 251 U. S. 15
(1919), it has been settled that a defendant whose conviction is
reversed may receive a more severe sentence upon retrial than he
received at his first trial. The Court followed this principle in
North Carolina v. Pearce, 395 U.
S. 711 (1969), where it held that a
"corollary of the power to retry a defendant is the power, upon
the defendant's reconviction, to impose whatever sentence may be
legally authorized, whether or not it is greater than the sentence
imposed after the first conviction."
Id. at
395 U. S. 720.
In contrast, where the question was whether a defendant could be
retried for first-degree murder after the jury at his first trial
had found him guilty only of second-degree murder, the Court
"regarded the jury's verdict as an implicit acquittal on the charge
of first degree murder" and held that the Double Jeopardy Clause
therefore barred retrial
Page 451 U. S. 448
on that charge.
Green v. United States, 355 U.
S. 184,
355 U. S. 190
(1957).
Although there is some tension between the
Green and
Pearce opinions, their holdings are not inconsistent. Both
have become landmarks in the law of the Double Jeopardy Clause. The
Court has cited each opinion time and time again, and more than
once the Court has declined to reexamine
Pearce. Indeed,
its rationale has been reaffirmed in recent cases.
United
States v. DiFrancesco, 449 U. S. 117,
449 U. S.
135-136, n. 14 (1980);
Chaffin v. Stynchcombe,
412 U. S. 17,
412 U. S. 24
(1973). Earlier this Term, the Court stated without qualification
that
"the difference in result reached in
Green and
Pearce can be explained only on the grounds that the
imposition of sentence does not operate as an implied acquittal of
any greater sentence."
United States v. DiFrancesco, supra, at
449 U. S. 136,
n. 14. [
Footnote 2/1]
Compare
ante at
451 U. S. 438
("The imposition of a particular sentence
usually is not
regarded as an
acquittal' of any more severe sentence. . . ."
(emphasis added)). But today the Court applies Green's
principle of "implicit acquittal" to sentencing, despite
Pearce and the unqualified statement in
DiFrancesco.
II
The Court justifies applying the implicit acquittal principle to
the sentencing in this case on the ground that Missouri's death
penalty statute establishes certain procedures for the sentencing
phase of a capital murder trial. [
Footnote 2/2] In the Court's
Page 451 U. S. 449
view, these procedures give the sentencing phase "the hallmarks
of the trial on guilt or innocence,"
ante at
451 U. S. 439,
and require the jury to decide whether the State has proved that
the defendant deserves the penalty of death,
ante at
451 U. S. 444.
The decision at the first trial to impose life imprisonment, the
Court reasons, reflects a decision that the State failed to prove
that the defendant deserves capital punishment. According to the
Court, that decision implies an "acquittal" of the harsher
sentence.
Having characterized the jury's decision for life imprisonment
as an "acquittal" of the death sentence, the Court recites the
classic double jeopardy rationale applicable to retrying the issue
of guilt or innocence,
Green v. United States, supra, at
355 U. S.
187-188, and applies it to the reconsideration of an
appropriate sentence for one whose guilt is unquestioned.
Ante at
451 U. S.
445-446. It states, without documentation in the record,
that the expense, ordeal, and anxiety at a resentencing in a
capital murder case are as great as would accompany a
redetermination of guilt or innocence.
Ante at
451 U. S. 445.
It also states that Missouri's second attempt to obtain a death
sentence might lead to an erroneously imposed death sentence.
Ante at
451 U. S.
445-446. The Court therefore concludes that the Double
Jeopardy Clause bars Missouri from again seeking the death penalty
against petitioner.
This is the first time the Court has held that the Double
Jeopardy Clause applies equally to sentencing and to determinations
of guilt or innocence. It heretofore has been thought that there is
a fundamental difference between the two.
Stroud v. United
States, supra; North Carolina v. Pearce, supra; Chaffin v.
Stynchcombe, supra; United States v. DiFrancesco, supra. I
would adhere to these precedents, and think they control this
case.
Page 451 U. S. 450
Underlying the question of guilt or innocence is an objective
truth: the defendant, in fact, did or did not commit the acts
constituting the crime charged. From the time an accused is first
suspected to the time the decision on guilt or innocence is made,
our criminal justice system is designed to enable the trier of fact
to discover that truth according to law. But triers of fact can
err, and an innocent person can be pronounced guilty. In contrast,
the law provides only limited standards for assessing the validity
of a sentencing decision. The sentencer's function is not to
discover a fact, but to mete out just deserts as he sees them.
Absent a mandatory sentence, there is no objective measure by which
the sentencer's decision can be deemed correct or erroneous if it
is duly made within the authority conferred by the legislature.
[
Footnote 2/3]
In light of this difference in the nature of the decisions, the
question in this case is not -- as the Court would frame it --
whether the procedures by which a sentencing decision is made are
similar to the procedures by which a decision on guilt or innocence
is made. Rather, the question is whether the reasons for
considering an acquittal on guilt or innocence as absolutely final
apply equally to a sentencing decision imposing less than the most
severe sentence authorized by law. I would have thought that the
pertinence of this question was clear, and that the answer
consistently given in the past could not have escaped the Court.
Earlier this Term, in
United States v. DiFrancesco, we
stated that
"[t]here are . . . fundamental distinctions between a sentence
and an acquittal, and to fail to recognize them is to ignore the
particular significance of an acquittal."
449 U.S. at
449 U. S.
133.
Page 451 U. S. 451
The reasons for considering an acquittal on guilt or innocence
as absolutely final do not apply equally to a sentencing decision
for less than the most severe sentence authorized by law. A retrial
of a defendant once found to have been innocent "enhanc[es] the
possibility that, even though innocent, he may be found guilty."
Green v. United States, 355 U.S. at
355 U. S. 188.
But in
Chaffin v. Stynchcombe, 412 U.S. at
412 U. S. 25, we
held that "[t]he possibility of a higher sentence was recognized
and accepted [in
Pearce] as a legitimate concomitant of
the retrial process." The possibility of a higher sentence is
acceptable under the Double Jeopardy Clause, whereas the
possibility of error as to guilt or innocence is not, because the
second jury's sentencing decision is as "correct" as the first
jury's. Similarly, a defendant once found to have been innocent
cannot be forced a second time through the ordeal of trial. But
when a defendant is found guilty, he must bear the ordeal of being
sentenced just as he does the ordeal of serving sentence.
In sum, I find wholly unpersuasive the Court's justification for
applying the implicit acquittal principle to sentencing. The Court
does not purport to justify its conclusion with the argument that
facing the death sentence a second time is more of an ordeal in the
legal sense than facing any other sentence a second time. The death
sentence, of course, is unlike any other punishment. For that
reason, this Court has read the Eighth Amendment and the Due
Process Clause of the Fourteenth Amendment to require that States
prescribe unique procedural safeguards to protect against
capricious or discriminatory impositions of the death sentence.
Furman v. Georgia, 408 U. S. 238
(1972);
Gregg v. Georgia, 428 U.
S. 153 (1976) (joint opinion). But a death sentence
imposed in accord with the strictures of the Eighth Amendment and
the Fourteenth Amendment is a lawful sentence, and Missouri
provides the requisite procedures. I find no basis under the Double
Jeopardy Clause for the Court to single out a sentence which is
statutorily authorized, and
Page 451 U. S. 452
otherwise may be imposed constitutionally as nonetheless one
that a guilty defendant may not be required to face twice.
Petitioner's ordeal upon retrial would not be different in kind
from that of the defendants in
Chaffin and
Stroud, both of whom faced the possibility of the death
sentence upon reconviction.
Chaffin v. Stynchcombe, supra,
at
412 U. S. 18-19;
Stroud v. United States, 251 U.S. at
251 U. S. 17-18.
The Court today simply disregards the principles established by
prior cases. [
Footnote 2/4]
III
In the course of explaining why the Double Jeopardy Clause does
not bar retrial after a reversal for trial error, the Court
stated:
"Corresponding to the right of an accused to be
Page 451 U. S. 453
given a fair trial is the societal interest in punishing one
whose guilt is clear after he has obtained such a trial."
United States v. Tateo, 377 U.
S. 463,
377 U. S. 466
(1964). Missouri has decided that death is an appropriate
punishment for one whose guilt of murder with aggravating
circumstances is made clear through special procedures. There is no
justification in the Constitution for barring Missouri from
exacting that punishment unless Missouri's interest in doing so
conflicts with constitutionally protected interests of the
defendant. The Double Jeopardy Clause does not protect a guilty
defendant's interest in avoiding a harsher sentence upon retrial,
even the death sentence. I therefore dissent.
[
Footnote 2/1]
In
Pearce, the Court stated:
"The Court's decision in
Green v. United States,
355 U. S.
184, is of no applicability to the present problem. The
Green decision was based upon the double jeopardy
provision's guarantee against retrial for an offense of which the
defendant was
acquitted."
395 U.S. at
395 U. S. 720,
n. 16 (emphasis in original).
[
Footnote 2/2]
In the Court's view, these procedures distinguish this case from
United States v. DiFrancesco, 449 U.
S. 117 (1980),
Chaffin v. Stynchcombe,
412 U. S. 17
(1973),
North Carolina v. Pearce, 395 U.
S. 711 (1969), and
Stroud v. United States,
251 U. S. 15
(1919), where the sentencing decisions were not made pursuant to
similar procedures. No one questions that these procedures,
applicable in capital cases, are different. But analytically, the
difference is immaterial for purposes of the Double Jeopardy
Clause.
See infra at
451 U. S.
450.
[
Footnote 2/3]
Of course, a sentence imposed upon one who did not commit the
crime is "erroneous," but the error inheres in the decision on
guilt or innocence, not in the sentencing decision. Also, a
sentence may be called "erroneous" if it is grossly
disproportionate to the severity of the crime committed. But in
that event, the sentence is "cruel and unusual" in violation of the
Eighth Amendment.
Weems v. United States, 217 U.
S. 349 (1910).
[
Footnote 2/4]
I would have trouble concurring in the Court's judgment even if
I agreed with the Court that the procedures of the Missouri death
penalty statute distinguish this case from
Pearce,
Chaffin, and
Stroud. In the Court's view, the first
jury's decision to sentence petitioner to life imprisonment, rather
than death, reveals that the State failed to "prove its case" that
petitioner deserved capital punishment. On this premise the Court
concludes that the principle of
Green and
Burks v.
United States, 437 U. S. 1 (1978),
bars a second attempt by the State to secure a death sentence.
Under the Missouri statute, Mo.Rev.Stat. § 565.012 (1978), the
"case" that the State had to prove was that petitioner committed
the murder under circumstances defined as "aggravating," and that
these circumstances warranted the imposition of the death penalty.
But the trial court expressly instructed the jury that it could
choose life imprisonment rather than death even if it found beyond
a reasonable doubt that the State had proved the existence and
gravity of such circumstances.
See ante at
451 U. S.
434-435. Thus, the jury's decision for life
imprisonment, rather than death, does not necessarily mean that the
State adduced insufficient evidence. To be sure, an acquittal on
the question of guilt or innocence does not necessarily mean that
the State adduced insufficient evidence, and yet such acquittals
are final. But juries instructed on the question of guilt or
innocence are not told that they can ignore the State's evidence.
Where the jury is so instructed, as in this case, there is
significantly less reason to assume that the State failed to prove
its case. Accordingly, there is less reason to consider a second
attempt to obtain the death penalty an unfair "
second bite at
the apple.'" Burks v. United States, supra, at
437 U. S.
17.