412 U.S., at 31, 93 S.Ct., at 1985
In early 1969 petitioner was tried by a jury in a Georgia state criminal court on a charge of robbery by open force or violence.1 The jury found him guilty and imposed a sentence of fifteen years in prison.2 He appealed to the Georgia Supreme Court, which affirmed the conviction.3 He then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia.4
The District Court found petitioner's contention meritorious, granted the writ, and ordered him returned to the state court for retrial.5 Upon retrial before a different judge and a new jury petitioner was again found guilty.6 The same prosecutor presented the same witnesses on the robbery facts.7 Petitioner added an insanity defense supported by new witnesses.8 He also gave a longer unsworn statement that included details of his family background, religious affiliation, job history, and physical injuries.9
The prosecutor urged the jury to impose the death penalty at the second trial, as he had at the first.10 The jury returned a sentence of life imprisonment.11 The parties agree that the jury was not aware of the length of the sentence meted out by the former jury.12 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.13
Petitioner appealed to the Georgia Supreme Court, which affirmed the judgment and sentence.14 He then filed a second application for federal habeas relief in the District Court.15 The District Court disagreed and declined to issue the writ.16 The United States Court of Appeals for the Fifth Circuit affirmed that denial.17
The Supreme Court granted certiorari to resolve a conflict among the circuits on the application of sentencing restrictions to jury resentencing.18
Whether the Due Process Clause of the Fourteenth Amendment bars a jury from rendering a higher sentence on retrial after reversal of a prior conviction in states that entrust sentencing responsibility to the jury?19
The Due Process Clause does not require extension of Pearce-type restrictions to jury sentencing.20 The potential for vindictiveness is de minimis in a properly controlled retrial.21 The jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness.22
No. The established facts demonstrate that upon retrial before a different judge and a new jury the petitioner received a life sentence after the prosecutor urged death as at the first trial.23 The jury was not informed of the length of the prior fifteen-year sentence or that the prior conviction had been overturned on collateral attack although one witness mentioned a prior trial on the same charge.24 Because the jury lacked knowledge of the prior sentence and had no personal stake in the reversed conviction the possibility of vindictiveness remains de minimis.25 The court therefore holds that due process permits the higher sentence under these circumstances.26
The Due Process Clause of the Fourteenth Amendment does not bar a jury from rendering a higher sentence on retrial after reversal of a prior conviction in states that entrust sentencing responsibility to the jury.27
Whether imposition of a higher sentence on retrial following a successful appeal violates the double jeopardy provision of the Fifth Amendment?28
The Double Jeopardy Clause does not prohibit a higher sentence on retrial after a defendant has succeeded in having the original conviction set aside.29 The original conviction is nullified and the slate is wiped clean.30 The state may retry the defendant and impose any legally authorized sentence.31
No. The established facts show that the petitioner succeeded in obtaining federal habeas relief that nullified his first conviction and ordered retrial.32 The second jury imposed life imprisonment rather than the original fifteen years.33 Under the rule reaffirmed from Stroud v. United States the power to retry a defendant who has overturned his conviction includes the corollary power to impose any legally authorized sentence even if greater than the first.34 The established facts therefore present no double jeopardy violation.35
Imposition of a higher sentence on retrial following a successful appeal does not violate the double jeopardy provision of the Fifth Amendment.36
Whether a higher sentence on retrial violates due process when it may reflect vindictiveness by the sentencing authority?37
A higher sentence on retrial violates due process only when it is the product of actual vindictiveness by the sentencing authority.38 The Due Process Clause requires affirmative reasons based on objective post-sentencing conduct only when the sentencing authority is a judge who may have a personal stake in the prior conviction.39
No. The established facts establish that the second jury had no knowledge of the prior fifteen-year sentence and consisted of different jurors from the first trial.40 The new jury therefore possessed no personal stake in the reversed conviction and no motivation for self-vindication.41 The prosecutor urged the same death penalty at both trials and the established facts contain no indication of retaliatory motivation by the jury.42 Because the possibility of vindictiveness is de minimis the higher life sentence does not violate due process.43
A higher sentence on retrial does not violate due process when it may reflect vindictiveness by the sentencing authority provided the jury lacks knowledge of the prior sentence and no actual vindictiveness appears.44
Related opinions on this issue
Joined by Justice Brennan
Justice Stewart dissents because there is a real danger of vindictiveness even when a jury imposes sentence.45 The trial judge and prosecutor may possess personal and institutional reasons to punish a successful appeal.46 In this case the prosecutor asked for death on retrial and the judge instructed the jury on that punishment possibly to secure a sentence at least as high as the original fifteen years.47
Stewart would require the trial judge to reduce any jury sentence exceeding the first unless the judge affirmatively states Pearce-type reasons based on identifiable post-sentencing conduct by the defendant.48 This procedure would eliminate the danger of retaliation while preserving the values of jury sentencing because it would at most reinstate the original jury's sentence.49
Justice Marshall dissents because the possibility of vindictiveness remains real whenever a jury on retrial might know of the prior conviction and sentence.50 The costs of preventing such vindictiveness do not outweigh the need to protect the constitutional right.51 He argues that even in properly controlled retrials the jury may learn of the prior sentence through local publicity.52
Prophylactic measures such as careful voir dire or curative instructions are either ineffective or too intrusive on jury selection and secrecy.53 Marshall would therefore impose Pearce limitations on jury resentencing to preclude consideration of the successful appeal and to avoid placing an unnecessary burden on the right to choose a jury trial after reversal.54
Whether the possibility of a higher sentence on retrial creates an impermissible chilling effect on the exercise of the right to appeal or to attack a conviction collaterally?55
The possibility of a higher sentence on retrial does not create an impermissible chilling effect on the right to appeal or collateral attack.56 The burden is speculative and incidental to legitimate jury sentencing practices that require the defendant to make difficult choices among constitutional rights.57
No. The established facts show that the petitioner was not chilled from exercising his right to seek habeas relief.58 Several contingencies must occur before a higher sentence could result including successful appeal retrial reconviction and a harsher jury sentence in the absence of vindictiveness.59 The court holds that such remote prospects do not impermissibly burden the right to appeal.60 Jury sentencing remains a legitimate practice whose incidental effect of requiring difficult choices is no more unconstitutional than the choices upheld in the guilty-plea cases and Crampton v. Ohio.61
The possibility of a higher sentence on retrial does not create an impermissible chilling effect on the exercise of the right to appeal or to attack a conviction collaterally.62
Related opinions on this issue
Justice Marshall further dissents on the chilling-effect claim by invoking United States v. Jackson.63 He argues that permitting juries but not judges to impose higher sentences without Pearce findings places an unnecessary burden on the defendant's right to choose a jury trial after a successful appeal.64 He contends that the test is strict necessity rather than speculation about the degree of burden.65
No legitimate state interest is materially advanced by allowing juries to enhance punishment without the limitations placed on judges.66 Marshall concludes that the rule endorsed by the majority is both unnecessary and an infringement upon the constitutional right to jury trial.67