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 that 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 jury sentencing.
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,
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.
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.
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.
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.
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.S. 784, 793-796 (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 of vindictiveness,
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 713. In addressing first the double jeopardy claim, the Court recognized the long-accepted power of a State "to retry a defendant who has succeeded in getting his first conviction set aside," id., at 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 720.
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,"
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 720-721. Petitioner, relying on the views of MR. JUSTICE DOUGLAS and Mr. Justice Harlan expressed in their separate opinions in Pearce, id., at 726, 744, urges the Court to overrule Stroud,
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 meet out higher sentences on retrial as punishment for those who successfully exercised their right to appeal, or to attack collaterally their conviction.
Petitioner seeks the extension of the Pearce rationale 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., at 723.
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 of Pearce, 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
This case, then, is controlled by the inquiry into possible vindictiveness counseled by Pearce, Moon, and Colten. 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
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,
Petitioner relies instead on United States v. Jackson, 390 U.S. 570 (1968), in which the Court held unconstitutional
Jackson 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, 397 U.S. 742 (1970), Parker v. North Carolina, 397 U.S. 790 (1970), and North Carolina v. Alford, 400 U.S. 25 (1970), 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. Brady is particularly instructive. The Court there canvassed several common plea-bargaining circumstances in which the accused is confronted with the "certainty or probability"
Mr. Justice Harlan's opinion for the Court in Crampton v. Ohio, 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., at 220-221. Thus, the free exercise of his Fifth Amendment right to remain silent was "chilled" by the prospect that a harsher jury sentence might ensue.
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." Ibid. 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 Jackson 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 practice. Supra, at 21-22. Just as in the guilty-plea cases and Crampton, an incidental consequence of that practice
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 nonbifurcated 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.
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 STEWART, with whom MR. JUSTICE BRENNAN joins, dissenting.
In North Carolina v. Pearce, 395 U.S. 711, 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
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 appeal.
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 proceeding." 395 U. S., at 726.
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.S. 570. Requiring that a judge reduce a jury-imposed
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 appeal. Ante, at 26-28. 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.S. 711 (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 respectfully dissent.
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 27 n. 13, 28-29, nn. 14-15, and suggests that a variety of preventive and remedial measures must be taken to minimize
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, at 26. And only when the possibility of vindictiveness can confidently be said to be de minimis can Pearce be distinguished. Even in Pearce we acknowledged the difficulty in establishing that sentences were frequently enhanced out of vindictiveness. 395 U. S., at 725 n. 20. Indeed, we could cite only studies that showed that increased sentences on reconviction were "far from rare," ibid.; we had before us no evidence at all that vindictiveness actually played a part in a substantial number of cases where sentences were increased.
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
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 (1933), and cases cited therein.
Because of the differing institutional positions of judge and jury,
One group of policies underlying jury sentencing derives from the belief that juries will be more humane and compassionate than judges: judges, it is said, represent a centralized government remote from the details of local life; judges who often must seek re-election 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 offenders. Cf. 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.S. 510, 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
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 Pearce do not greatly affect the values served by jury sentencing.
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 distinguish Jackson 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 32. Yet in Jackson we said, "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 582. Brady v. United States, 397 U.S. 742 (1970), and Crampton v. Ohio, 402 U.S. 183 (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.
In Brady, 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
Similarly, the defendant in Crampton contended that 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 213-216. 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.
Both Brady and Crampton 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. Ante, at 34 n. 21. But Jackson, Brady, and Crampton did not involve assessments of the relative severity of the burden on the right to choose to be tried by a jury;
I believe that Pearce and Jackson require that 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.
"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. § 26-1902 (1972).
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).
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. Neil, supra. 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. They would achieve, in the name of due process, the substance of the result we have declined to approve under the Double Jeopardy Clause.
"Question. Did the jury know anything about the first trial?
"[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."
"Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved 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 right.' " Id., at 746 (emphasis supplied).
Mr. JUSTICE DOUGLAS dissents for the reasons stated in his dissenting opinion in Moon v. Maryland, 398 U.S. 319, 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 (1968).