*1 UNITED STATES v. DiFRANCESCO Argued No. 79-567. October 9,1980 1980 Decided December *2 Burger, Court, in which the opinion of the J., delivered Blaokmun, J., Brennan, JJ., joined. Rehnquist, Powell, and Stewart, J.,C. and JJ., Stevens,, and Marshall, White, opinion, which dissenting a filed p. post, 152. dissenting opinion, J., a filed Stevens, p. post, joined, the for the cause Frey argued General Solicitor Deputy Gen- Solicitor were briefs the him With States. United Vic- and Heymann, General Attorney McCree, Assistant eral Stone. D. tor brief a and filed cause the DeMoyer argued C.
Edgar respondent.* Court. opinion delivered Blaokmun
Justice 91-452, L. Pub. ofAct Crime Control Organized of a definition things, other among contains, Stat. and (e) §§ 3575 U. S. C. offender,” special “dangerous upon increased of an imposition authorizes (f);1 Quin by Denvir filed were urging affirmance curiae amici of *Briefs California; and Defender Public State Smith for Laurance Liberties Union. Civil American Michaelson Martin for this case: pertinent provides, so far Section a defendant prosecution with charged attorney “(a) Whenever felony when committed alleged for an a court to believe years reason twenty-one age of over defendant attorney, a reasonable such special offender dangerous is a con- or nolo guilty plea of the court acceptance or before time a convicted dangerous special offender. 3575 (b); and grants the United States the right, under specified conditions, may tendere, sign and file with court, amend, a notice (1) specifying that the defendant is a dangerous special offender upon who conviction for such felony subject imposition of a sentence under (b) subsection section, (2) setting out with particularity the why reasons such attorney believes the defendant to dangerous special offender. In no case shall the fact that the defendant is alleged to be a dangerous special offender be an upon issue the trial of such felony, [or] be disclosed to jury .... “(b) Upon any plea guilty or nolo contendere verdict or finding of guilty of the defendant of such felony, a hearing shall be held before sen- tence is imposed, by the court sitting without jury. The court shall fix a time for the hearing, and notice thereof given shall be to the defendant and the United States at days least ten prior thereto. The court shall permit the United States and counsel for the defendant, or the defendant *3 if he is not represented by counsel, inspect presentence the report suffi- ciently prior to hearing the as to afford a opportunity reasonable for verifi- cation. ... In connection with the hearing, the defendant and the United States shall be entitled to assistance counsel, of compulsory process, and cross-examination of such witnesses as appear at hearing. the duly A authenticated copy of a judgment former or commitment prima shall be facie evidence of such judgment former or commitment. If appears by it preponderance a of the information, including information submitted dur- ing the trial felony of such and the sentencing hearing so and much of the presentence report as the court relies upon, that the defendant is a dan- gerous special offender, the court shall sentence the defendant to imprison- ment for an appropriate term not to twenty-five exceed years and not disproportionate in severity to the maximum term otherwise by authorized law for felony. such Otherwise it shall sentence the defendant accord- ance with the law prescribing penalties for felony. such The court shall place in the record findings, its including an identification of the informa- upon tion relied making such findings, and its reasons for the sentence imposed.
“(e) A special defendant is a offender for purposes of this section if— “(3) felony such was, or the defendant felony committed such in fur- of, therance a conspiracy with three or more persons other engage a pattern of conduct criminal under applicable any laws of jurisdiction, and the did, defendant agreed or that he would, initiate, organize, finance, plan, review, for Appeals of to the Court sentence take § is whether case by this presented issue 3576.2 conduct, or conspiracy or part such of or supervise all direct, manage, or part of such conduct. or as all force or use a give receive bribe or subsection, criminal (3) (2) of this paragraphs and of purposes “. . . For the that have same acts criminal if embraces pattern forms conduct of commis- methods or results, participants, victims, purposes, or similar distinguishing characteristic[s] by interrelated are sion, or otherwise events. not isolated are period if a this section purposes of dangerous for “(f) defendant A required for felony is provided for such longer than that of confinement by the conduct further criminal public from the protection of the defendant.” in full as follows: reads Section of a sentence correction, or reduction imposition, the respect to “With the of a review chapter, of section 3575 proceedings under after by de- the may be taken sentencing court the of record sentence Any of review appeals. to a court States the United or fendant days five before least taken at be by shall the United States taken sentence appeal of or the sentence taking for review the time expiration prosecuted. The diligently shall by the conviction notice, time extend motion and may, without sentencing with or court days thirty to exceed period not for a of the sentence taking a review for by The court prescribed law. the time otherwise expiration of from the sentence of the taking a time review not extend shall taking extending the time A expired. court time has States after time for extend shall the United of the sentence a review by the defend- appeal of the conviction sentence taking review by the sentence taking a review period. The for the same ant taking of a review *4 be deemed shall sentence of the Review by the defendant. the conviction appeal of lawful, the employed procedure whether of review include shall sentencing discretion court’s erroneous, clearly were findings made may, after of the sentence on review appeals of The court was abused. report, presentence information including entire record, considering the hearing, and felony sentencing and the the trial of such during submitted sentence, sentencing court, affirm findings of and reasons sentencing any which the of sentence imposition impose or direct sentencing for further imposed, or remand originally have could court sentence, except that a sentence imposition of proceedings by the United taken only the sentence on review of more severe be made
authorizing the United States so to appeal, violates the Dou- ble Jeopardy Clause3 of the Fifth Amendment of the Constitution.4
States and after hearing. Failure of the United States to take a review imposition of the shall, upon review by taken the United States of the correction or reduction of the sentence, imposition foreclose of a sentence more severe than that previously imposed. Any withdrawal or dismissal of review of the sentence taken the United States shall imposition foreclose of a sentence more severe than that reviewed but shall not otherwise foreclose the review of the sentence or appeal the conviction. The court of appeals shall state writing the reasons for its disposition of the review of the Any sentence. review of the sentence taken the United States may be dismissed on a showing of abuse of right of the United States to take such review.” Section 3576 has a twin in 21 U. S. (h). C. §849 This was enacted (h) the Comprehensive Drug Abuse Prevention and Control Act 1970, Pub. L. 91-513, 84 Stat. 1266. any shall “[N]or person be subject for the same offence twice put in jeopardy of life or limb .. . .” U. Const., Arndt. 5. 4 Academic professional commentary on general issue is divided. For conclusions that prosecution appeals of sentences do not violate Double Jeopardy Clause, see Westen, The Three Faces of Jeop Double ardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001 (1980); Stern, Government Appeals of Sentences: A Con Response stitutional to Arbitrary and Unreasonable Sentences, 18 Am. Crim. L. Rev. 51 (1980); Dunsky, The Constitutionality of Increasing Sentences on Appellate Review, 69 J. Crim. L. & Criminology (1978). For conclusions that such appeals are unconstitutional, see Spence, The Federal Criminal Code Reform Act of 1977 and Appeal Prosecutorial Sentences: Justice or Double Jeopardy?, 37 Md. L. Freeman & Earley, United States v. DiFrancesco: (1978); Rev. 739 Appeal Government Sentences, 18 Am. Crim. L. Rev. (1980); Note, 63 Va. L. Rev. 325 (1977); Report on Government Appeal of Sentences, 35 Lawyer 617, Bus. 624r-628 At least one commentator-witness ago some time re garded the answer to the constitutional “simply issue as Low, unclear.” Special Offender Sentencing, 8 Q. Am. Crim. L. 91 (1970) (reprint of statement submitted at Hearings on S. 30 et al. before the Subcommit tee on Criminal Laws and Procedures the Senate Committee on the Judiciary, Cong., 91st 1st Sess., (1969)). See also ABA Standards for Criminal Justice 20-1.1 (d), appended commentary, pp. 20-7 through (2d 20-13 1980). ed. *5 122
I Court District in the jury a 1977 At Eugene respondent York, of New District Western the for of affairs the conducting of was convicted DiFrancesco of and activity, racketeering of pattern through enterprise C.S. 18 U. of in violation offense, that commit conspiring 1978—before in jury trial another At (d).5 and (c) 1962 §§ indict on an District —based same the judge different respond indictment, racketeering prior returned ment in violation property, federal damaging of convicted was ent ma explosive storing unlawfully of §C. conspiring (j), and 842§C. U. S. of 18 violation terials, 371.6 § S. C. in violation offenses, those to commit con- on his March sentenced, first was Respondent on eight years He received trial. later victions on the years five property federal damaging for charge concurrently, served be sentences these charge, conspiracy served to be charge, storage unlawful on year one made a total This sentences. other consecutively to the sen- was respondent April, In imprisonment. years’ nine to two 3575 § under offender special dangerous aas tenced he which upon counts racketeering terms 10-year these specified court trial; the earlier convicted other each concurrently with served were sentences special dangerous The in March. imposed sentences with 5 not fine of is a for a violation § punishment maximum The both, years, or than more for not imprisonment $25,000 or than more specified forfeitures. plus violation, for its punishment the maximum specifies Section imprison $10,000 or not more than fine of $100, ais damage exceeds if for punishment years, maximum or both. than not more for ment imprisonment $1,000 or than not more (j) is a fine of § a violation specifies (b). Section year, both. or §844 one than not more is violation, when offense its punishment maximum than more of not misdemeanor, a fine is conspiracy object of years, both. five than more of not imprisonment $10,000 or
offender charge and sentences resulted in thus additional punishment only year. a about
Respondent appealed judgments respective the convic- tion to the Court of Appeals Circuit, for the and the Second United States sought review, under of the sentences § imposed upon respondent dangerous as a special offender. The Appeals Court of unanimously judgments affirmed the conviction. By a divided vote, however, that court dismissed the Government’s appeal on double grounds. F. 2d 769 The majority two in the thus did judges not address the merits of special the offender issue. The judge, third while agreeing the appeal that Government’s was to be dismissed, based that conclusion not on constitutional as did grounds, the majority, grounds but that §§ the and 3576 were inapplicable to the facts of case. 604 F. at 787.7 2d, Because of importance of the constitutional question, granted we petition the Government’s for certiorari, which confined itself single to that issue. U. S. 1070 (1980). Respondent has not filed cross-petition.
II At the earlier racketeering trial, evidence showed that respondent was in involved in arson-for-hire scheme Rochester, Y., N. area responsible eight that was least at fires between 1970 and 1973; that collaborated with ring property owners set fire buildings return shares of the insurance proceeds; and that insurers were defrauded of approximately $480,000 aas result of these fires. At second trial, the evidence showed respondent partici- 7 The applicability of respondent, 3576 to this §§3575 issue upon which the concurring judge rested his conclusion, is not before us. majority observed, Appeals Court of passing, the trial court “properly could find that applicable.” statute was 2d, 604 F. 780-781, at any event, n. 13. In considered, issue if there is any doing, reason for so on remand. including the Day bombings,” “Columbus in the 1970 pated building Rochester. bombing of the federal with accordance Government, trial, Prior to the first alleging a notice the trial (a), filed with court notice offender. This special respondent dangerous sen- seek enhanced intention to recited Government’s respondent in the event racketeering on the counts tences respondent was found trial. After was convicted dangerous hearing, pursuant offender guilty, special *7 relied At Government (b), hearing, § held. testimony public upon upon adduced at respondent documents that attested other convictions of for Day loansharking, the Columbus bombings, App. murder. offered no 27-28, 30. The defense evidence. validity id., public 31-32, conceded the of the records, It at objected any but be- consideration of the murder offense Id., cause that conviction been on appeal. had vacated 28-29.
The District findings Court made fact and ruled that respondent was a dangerous special offender within mean- of the ing findings respondent’s statute. The set forth crim- inal record and “virtually stated that that record revealed continuous criminal conduct the past over in- eight years, terrupted only by relatively periods imprisonment brief 1975, 1976 and Id., in 1977.” The court found, addition, respondent’s that “criminal history, based upon proven facts, pattern reveals a of habitual and knowing crim- inal conduct of the most dangerous violent and against nature the lives and property the citizens of community. this It further shows the defendant’s complete and utter disregard public safety. for the The defendant, by virtue of his own criminal record, shown himself be a hardened habitual from public criminal whom the be protected must for as period long possible. Only way public that can the protected from further dangerous violent and criminal Id., conduct defendant.” at 43.8 The court there- upon respondent sentenced under § 3575 (b) to the concurrent 10-year terms hereinabove described. App. 45^46.
The United States then took its appeal under claim- ing that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of re- spondent for only one year, the face of the findings the court made after the dangerous special hearing.9 offender
8The court then findings summarized its and set forth its conclusion as follows: sum, “In Court, on the above, basis the facts finds that age years was over the of 21 when the crimes for which he stands committed; convicted were that the defendant stands convicted felonies; felony two that one was committed in furtherance of a con-
spiracy (18 (c)); U. S. C. 1962 felony the other was itself a con- (18 spiracy (d)); U. S. C. 1962 conspiracy and the substantive persons crime involved at least four ; other than the defendant . . . conspiracy and the engage substantive crime was to in a pattern of conduct which was criminal under the laws of the State (New New 150) York York Code, Penal Article and of the United States (18 1341); U. S. C. organize, the defendant did initiate, plan, direct, manage and.supervise part conspiracy at least and the substantive *8 acts; criminal that confinement of period longer the defendant for a [and provided than that (c) (d) violation of 18 U. S. C. 1962 or 1962 is required protection for the public of the from further criminal conduct by the defendant.] “WHEREFORE, finding it is the of this Court the defendant Eugene DiFrancesco, having felony charges been convicted of two before 31, 1977, having years this Court on age October and been over the of 21 at the time of the dangerous commission of special those felonies is a offender meaning (e) within the (3) (f) of sections 3575 Title 3575 18 Code, subject the United States sentencing provi- therefore (b) sions of section 3575 of Title 18 App. of the United States Code.” 43-44. phrase findings typed, bracketed is in the as but a line has been drawn
through persuasive deletion, it in ink hand. No explanation for this if one, it is offered this has been Court. 9It argument, Arg. 5, 37,39, was indicated at oral Tr. of Oral and in one briefs, 12, Respondent of the Brief for opinion well as in the 126 appeal the Court
The dismissal
the Government’s
conclusion,
its
which it de-
Appeals
specifically upon
rested
subject “to
“inescapable,”
scribed as
to
sentence, upon
appeal by
greater
of substitution of a
risk
fin jeopardy
him
time
a second
government,
place
”
or
2d,
limb.’
604 F.
at 783.
life
Ill
able
has
Court,
ascertain,
While this
so far as we are
Congress
jeopardy
never invalidated an Act of
on double
recently
grounds,
frequent
has had
occasion
to consider
pass upon
double
claims
con
raised
various
Jorn,
texts. See United States v.
470 (1971);
400 U. S.
Kentucky,
Colten v.
Illinois v. Somer
407
104 (1972);
U. S.
ville, 410 U.
Stynchcombe,
458 (1973);
S.
v.
412 U. S.
Chaffin
Wilson,
United States v.
(1973);
17
420
(1975);
U. S. 332
Jenkins,
United States v.
420 U.
ass v.
358
S.
(1975); Serf
United States, Jones,
Breed v.
(1975);
U. S. 377
Dinits,
(1975); United States v.
U. S.
127 Whalen v. Brady, (1978); Swisher v. 204 438 U. S. (1978); Vitale, 447 Illinois v. States, United (1980); S. 684 U. S. 410 (1980). decade past just
These
are the additions
cited cases
de
jeopardy
to the
of well-known double
less numerous list
are United
past years. Among
cisions of
those earlier cases
Lange, 18
Perez,
Ex
parte
(1824);
9
v.
Wheat. 579
Ball,
(1896) ;
662
United States v.
163
163
S.
(1874),
Wall.
U.
Green
v.
States,
Kepner
(1904);
v.
195
100
U. S.
United
United
States,
Fong Foo v.
United
(1957);
ual for an compelling him and ordeal expense embarrassment, anxiety insecurity, state of continuing to live in a though possibility that even well enhancing as guilty.” S., 355 U. at 187-188. may innocent he be found States, ass United S., 387-388; 420 U. at also See v. Serf Bretz, Crist v. concept This S., 437 U. at 35. has ancient acquit, of autre centering pleas in the common-law roots fois convict, autre 4 pardon, Blackstone, W. Commen fois (1st expression 329-330 ed. and found 1769), taries Green v. United legal tradition of colonial America. States, id., 355 200 S., 187; (dissenting opinion); at at U. Wilson, United States United States v. S., 339-342; 420 at U. Scott, v. 437 U. at S., 87.
—The specific stated terms of has been design, purpose, expressed ways. various It has been said “a” or “the” “primary purpose” preserve finality of the Clause “to Bretz, Crist judgments,” v. S., 33, U. at the “integ Scott, of judgments, United rity” States v. atS., U. But objective it also been said “central prohibition against trials” is successive barrier to “afford ing prosecution opportunity supply another evidence failed Burks v. which it to muster in proceeding.” the first United Brady, Swisher v. 11; U. S., S., at 438 U. at Implicit thought 215-216. in this is the that if the Gov ernment reprosecute, gains an advantage from what strengths it learns at the first trial about the of the defense case and the weaknesses of its own. See United States v. Scott, S., (dissenting at n. opinion); Wilson, v. S., at 352.
Still another consideration has been noted:
“Because jeopardy before attaches the judgment be- final, comes constitutional protection also embraces right defendant’s Valued to have his trial completed ” Arizona v. Washington, particular tribunal.’ U. S., quoting Hunter, from Wade v. 336 TJ. S. 684, 689
See Swisher Brady, S., Bretz, 214-215; Crist 437 U. S., at 36.
On occasion, stress has been placed upon punishment:
“It is the punishment
legally
would
follow the sec-
ond conviction which
danger
is the real
guarded against
by the
Ex
Constitution.”
parte Lange,
“That [against jeopardy] double has been said consist of three separate constitutional protec tions. It protects against a prosecution second for the same offense acquittal. after protects It against a sec ond prosecution for the same after offense conviction. protects And against multiple punishments for the same (Footnotes offense.” omitted.) North Carolina v. Pearce, 395 U. 717 711, (1969).10 See Vitale, Illinois v. 447 S.,U. at 415.
—An acquittal is accorded special weight. “The constitu protection tional against double jeopardy pro unequivocally hibits a second trial an following acquittal,” for the “public finality interest judgments criminal is strong so acquitted an may not be even though retried ‘the acquittal was upon egregiously based an erroneous founda Fong tion.’ Foo v. United 369 If States, U. S. 143. the innocence of the accused been has confirmed a final judgment, the Constitution conclusively presumes that sec ond trial would be Washington, unfair.” Arizona 434 S., v. U. at 503. The law particular significance “attaches ac to an United quittal.” Scott, 437 v. U. 91. S., at saying This recital is described as this Court’s about “favorite double jeopardy” subject comment, and is the uncritical, in Professor provocative thoughtful article, Westen’s The Three Faces of Double Jeopardy: Appeals Sentences, Reflections on Government of Criminal Mich. L. 1062-1063 Rev. ground however justified mistaken the that,
This is unacceptably high there be an may have would acquittal been, Government, superior with its would resources, risk that defendant, thereby “enhancing possibility wear down Green v. though he be found guilty.” innocent that even States, United States v. at 188. See also S., United Co., Linen Supply Martin at S., 571, 573, n. “[W]e ac- necessarily finality jury’s afford absolute to a verdict (emphasis matter how its decision” quittal erroneous —no Burks v. United at 16.11 original). U. S., definitely cases where the trial —The result otherwise in recog long acquittal. not ended This Court has prosecution may bring Government a second nized that necessity.” a mistrial has been occasioned “manifest where Perez, Arizona Wheat, States v. 580. See Somerville, Washington, 514-516; Illinois S.,U. *12 of a de Furthermore, reprosecution 458 is not successfully for a mistrial fendant who has moved deliberately seek barred, long so did as the Government not Dinitz, 424 United States v. provoke request. mistrial S.,U. at 606-611. to a prior where the trial has been terminated
Similarly, unrelated request grounds verdict jury at defendant’s re- appellate seek guilt innocence, the Government be would though of that decision even a second trial view Scott, 437 United by a reversal. See States necessitated v. A Jeopardy the Double Clause does fortiori, at 98-99. S.,U. appeal ruling from in favor not a Government bar has been the trier guilty after a verdict entered Wilson, v. supra; States United States United v. of fact. See (CA9 1977); v. United States 938, 2d Rojas, 554 F. (CA2 1975). Garces, 1156, 2d De 518 F. succinctly way: describes Professor Westen acquittal jury’s following an on a on retrial based prohibition “The Id., acquit against 1012, . . . 1063. evidence .”
prerogative to
if
Finally,
the first trial has ended in a conviction, the dou
ble jeopardy guarantee
“imposes no limitations whatever
upon
power
to retry a defendant who has succeeded in
getting his first conviction set aside” (emphasis in original).
North Carolina v. Pearce, S.,U.
at 720. “It
would
high price indeed for society to pay were every accused
granted immunity from punishment
any
because of
defect
sufficient to constitute reversible error in the proceedings lead
ing to conviction.” United States
Toteo,
v.
S.,U.
at 466.
require
“[T]o
a criminal defendant
to stand
again
after
he has successfully invoked a statutory right of appeal
upset his first conviction is
act of governmental oppres
sion
the sort against which the Double Jeopardy Clause was
protect.”
intended to
United States v. Scott, atS.,
There is, however, one exception to this rule:
the Double
prohibits
Clause
retrial after a conviction has been
reversed because of insufficiency of the evidence.
Burks
United States, supra; Greene v. Massey,
—The United States “has no right of appeal in a criminal
case, absent explicit statutory authority.” Scott, S.,U.
at 84-85. But with the enactment of the
first paragraph of what is now 18 U. S.
§ C. 3731
Pub. L.
91-644 in 1971, 84
Stat.
permitting a
ap-
Government
peal
in a criminal case except “where the
double
clause of the United States
prohibits
Constitution
further
prosecution,” the Court necessarily concluded that “Congress
intended to remove all statutory barriers to
ap-
Government
*13
peals and to allow appeals whenever the Constitution would
permit.” United
v. Wilson,
States
S.,U.
at 337. See
also United States
Scott,
v.
IV pertinent propositions certain principles, these From emerge: controversy present barrier complete not is Clause Jeopardy Double
A. The case. “[W]here in a criminal prosecution appeal to an prosecu- successive no threat presents appeal a Government United not offended.” Clause is Double tions, the 569-570. Co., S.,U. Supply Linen Martin States v. States 342; United atS., Wilson, 420 U. United States v.
also Government’s that it follows Scott, this supra. From v. itself does not respondent’s a review taking success its because just principles jeopardy offend double sen- lenient a more benefit respondent might deprive in Scott again in Wilson Indeed, tence. tribunal that court, victory a total won
had have allowed would that ain manner the case terminated had con- over the nevertheless, Government, free. go him to appeal. allowed was challenge, stitutional but appeal not on the thus, is focus, jeopardy The double B. determine is to our task requested, is that relief on the be ac- is to pronounced, once sentence, a criminal whether similar conclusiveness finality and constitutional corded con- acquittal. We verdict jury’s ato attaches which nor the sentencing practices, history of neither clude considerations even nor Court, rulings of pertinent equation. such an support policy double pro- said Court has above, noted has been As “controlling constitu- is the trials multiple against hibition 346; Wilson, 420 U. S., at States v. United principle.” tional Co., S., Supply Linen Martin States United protection that even show cases Court’s course, the But, prevents acquittal It is absolute. is retrial against United at the trial. committed legal error if even retrial why “law This Ball, acquittal.” to an significance particular attaches
133 States v. Scott, S., at 91. Appeal of a sentence, there fore, would seem to be a violation of double jeopardy if only the original sentence, as pronounced, is to be treated in way same as an acquittal is treated, and the appeal is to be treated in the way same as a retrial. Put another way, the argument would be that, for double jeopardy finality pur poses, the imposition of the sentence is an “implied acquittal” any greater sentence. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Ap pellant, 74 Yale L. J. 606, 634-635 (1965).
We agree with the Government approach this does not withstand analysis. Any reliance the Court of Appeals may placed have on Kepner v. United States, S. (1904),13 is misplaced, for the focus of Kepner undesirability of a second trial. There are, furthermore, fun- damental distinctions between a sentence and an acquittal, and to fail to recognize them is ignore particular signifi- cance of an acquittal.
Historically, the pronouncement of sentence has never car- ried the finality that attaches to an acquittal. The common- law writs of autre acquit and autre convict were pro- fois fois tections against retrial. See Wilson, States U. S., at 340. Although the distinction of great was not im- portance early in the English common law because nearly all felonies, to which double jeopardy principles originally were limited, were punishable by the critical sentences death deportation, see Comment, Statutory Implementation of Dou- ble Jeopardy Clauses: New Life for a Moribund Constitu- tional Guarantee, Yale L. J. 339, 342-343 (1956), gained it importance when sentences of imprisonment became common. The trial court’s increase of a sentence, so long place took challenge While Kepner was based not on the Double Clause, but aon statute extending jeopardy double protection Philippines, accepted Court has that decision having “as correctly stated the relevant double principles.” See United States v. Wil son, 332, 346, n. *15 practice This permitted. court, was same term during the See principle. jeopardy any double to violate thought not was (dissenting id., at 192-194 167; Wall., Lange, 18 parte Ex See 1789). ed. (13th §438 Institutes Coke, 3 E. opinion); The (1861). 144 Weymouth, 84 Mass. v. Commonwealth also Dou our for context, present in the important law is common pro common-law with the drafted Clause was Jeopardy ble Wilson, S., v. States United See mind. tections (dis 200-201 atS., States, U. 355 United Green v. 340-342; practice established for the This accounts opinion). senting the may recall judge sentencing the that courts federal in the venture we (and least sentence, at his increase defendant yet not as he long limitation) so as comment no v. United g., e. See, sentence. that to serve begun 402 denied, cert. 1970), (CA2 221 DiLorenzo, 429 F. 2d 216, 2d F. 337 United Vincent v. (1971); S. 950 Thus (1965). 988 denied, 380 U. cert. (CA8 1964), 894 the that history demonstrates certainty that with said may be sentence a finality to such ascribed never law common appeal authorizing its from body legislative a prevent would legal their trace that countries Indeed, prosecution. by the appeals. such permit law common English systems Mar (1970), (ii) (b) (1)(b) and §§605 Stat. Rev. Can. ed. Greenspan (E. 523, 636 Code Criminal Annual tin’s amended 1961, as Act Crimes Zealand 1979); New (2) 383§Z.N. Repr. Stat. Act of Amendment Crimes (1969). Double Friedland, See M. clearly es- sentencing area in the decisions Court’s This C. consti- qualities have the does a sentence tablish Bozza In acquittal. an finality attend tutional convicted defendant (1947), States, 330 U. S. fine mandatory minimum a carrying crime de- sentenced however, court, imprisonment. day, same on the Later imprisonment. only fendant im- fine and both imposed recalled judge prisonment. This Court held there was no jeop- double ardy. “The require sentencing Constitution does not game should be a a wrong judge in which means move Id., immunity prisoner.” at 166-167. What judge put petitioner had done “did not twice Id., at 167. And in North Carolina the same offense.” Pearce, U. S. the Court no (1969), held that there was imposition absolute constitutional bar to of more severe sentence on ap- reconviction after the defendant’s successful peal original judgment of conviction. The rule of Pearce, permitting increase sentence on retrial *16 part “well-established of our jurisprudence.” constitutional Id., Stynchcombe, See at 720. v. 412 U. 24. S., at Chaffin States, also Stroud United any U. S. 15 If finality applied pronouncement rule of to had the of sen- sentence in Pearce would have served as a tence, original the at retrial.14 While Pearce dealt on ceiling imposed the one principal recognize import The dissent fails to the of Pearce. Accord ing dissent, “analytic similarity acquittal to that the of verdict of and imposition requires may the of the sentence” conclusion sentences not imposition violating be increased after without the Double Clause. Post, Thus, 10-year imposition 25-year at the 146. of a sentence where a is, permissible acquittal view, implicit sentence is in the dissent’s an the of greater precisely argument unsuccessfully Ibid. sentence. But Douglas S., advanced Justices and Harlan in Pearce. See 395 U. J., id., J., 726-728, (Douglas, concurring); (Harlan, and 1n. at 744-746 concurring part dissenting part). majority and The in Pearce thus rejected imposition the notion that the of a sentence less than the maxi operates implied acquittal any id., greater mum as an of sentence. See 720, and n. 16. Further, distinguish principal attempt the to on dissent’s Pearce the grounds imposition that there the of retrial, the sentence followed a rather appeal, unconvincing. is In v. United than Green an (1957), the Court held that a defendant who had been of the lesser convicted second-degree offense of murder at his first included trial could not be con- greater first-degree retrial; thus, of the offense of murder on victed the implicit acquittal operated of the lesser included offense as conviction an greater. sought the of the Since defendant and obtained a retrial in each than, rather retrial after sentence a new of imposition the with “con- than a more is no difference appeal, after here, at S., Pearce, Carolina North nicety.” ceptual reprosecu- bar considerations jeopardy double The D. a sentence. of review prohibit do acquittal an after tion double of the design the basic above noted haveWe attempts to repeated against a bar is, as provision, em- subjection consequent convict, with possi- and insecurity, and anxiety, expense, barrassment, innocent. though even guilty be found he bility that application significant no have however, considerations, These a sen- review right statutorily granted prosecution’s ap- or' retrial not involve appeal does limited This tence. or guilt basic issue on of a ordeal proximate promptly taken to be is appeal 3576, the Under innocence. The court. sentencing record essentially is statute knowledge with charged is defendant, course, finality in expectation of no has provisions, appeal its time or concluded is appeal until his prolong may- appeal sure, To be expired. appeal only for so but does may exist, anxiety that any period no appeal by the statute. provided period finite under appeal any Government than ordeal more infor- *17 indictment an of dismissal from § C. U. S. ob- anxiety and concern primary defendant’s The mation. and guilt, or innocence of determination to viously relate to no subject is defendant him. behind already is that innocent. although convicted, then being harassed risk in characteristically determined is sentence Furthermore, a explained Pearce can Green in reached in result case, the difference operate not does of sentence imposition that grounds only on the any greater sentence. acquittal of implied separate Harlan’s on Justice reliance dissent, with its Justice SteveNs’ S., at part, 395 U. in dissenting concurring part and Pearce, in in opinion wrongly decided. Pearce that nothing than more argues 744, effect Pearce. overrule inclined not We are large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely judi- cial determination, and much goes into it is the result of inquiry is nonadversary in nature. E. The Double Jeopardy Clause does provide not de
fendant with the right to know at any specific
moment
time
what the exact limit
his punishment
will turn
out
be.
Congress has established many types of criminal sanctions
under which the defendant
is unaware of
precise
extent
his punishment
for significant periods of
,or
time,
even for
yet
life,
these sanctions have not been considered to be viola-
tive of the Clause. Thus, there is no double jeopardy protec
against
tion
revocation
probation
imposition
and the
imprisonment.
g.,
See,
e.
Thomas v.
United
327 F. 2d
795 (CA10), cert. denied,
V sentence of a increase whether question turnWe in punishment multiple constitutes under on review Ap- The Court Clause. Double of the violation conclu- This at 784r-787. 2d, 604 F. it did. that found peals court’s to primarily attributable to be appears sion dictum this Court’s appeal to an extending fed- effect to (1931), 304, 307 Benz, v. by the trial in sentence increase barring an practice eral constitutionally is begun has sentence service after court was however, Benz, only issue and real The based.15 a defendant’s reduce to power had the judge the trial whether held The Court begun. had service after say gratuitously, to It went power. such had court trial textbook from a quotations with and 307-308, id., at however, trial 173, that Wall., Lange, 18 parte Ex and from increase though the even sentence, increase a may not court if the session, court same during the is effectuated source, dictum’s But sentence. of his begun service trial Lange In principle. Lange, no such states parte Ex even fine, imprisonment both erroneously imposed court only one impose 'by statute authorized it was though fine paid had Lange punishments. two of these other resen- court then The days in prison. five served been having The fine imprisonment. year’s him to tenced the alternative one of suffered having the defendant paid further punish the court power “the punishments, impose observed also Court Id., gone.” Massachusetts, Murphy present dicta are similar Somewhat Covert, in Reid opinion plurality and in (1900), U. S. jeopardy case. not a double The latter 1, 37-38, n. U. S. *19 year’s maximum) a imprisonment (the days after had five punish Id., been served was to twice the same at offense. holding Lange, Benz, The in 175. and thus the in dictum susceptible general application. are not We confine the to Lange’s specific dictum Benz Although context. might be argued perceives defendant length finally his sentence as determined when he begins it, serve judge and that the trial should be prohibited from thereafter increasing the sentence, argument has no force where, dangerous as in the special Congress offender statute, has specifically provided that subject appeal. is Under such circumstances there can be expectation no finality in the original sentence. Rep. See 91-617, No. p. 97 (1969); Dunsky, The Constitutionality of Increasing Sentences on Appellate Review, J. L. & Criminology Crim. guarantee
The against multiple punishment that has evolved in the holdings of this plainly is Court not involved parte Lange this cáse. As Ex demonstrates, greater receive not legislature sentence than the has No authorized. double jeopardy problem would have been presented in Ex parte Lange Congress provided if had that the offense punishable by there was both fine and imprisonment, though even multiple punishment. is Whalen See v. S., 688-689; id., (con- at 697-698 curring opinion). punishment The Congress authorized under 3575 and specific and, accordingly, §§ clear and guarantee against punishment does violate the multiple expounded by parte Ex Lange.
VI The conclusion neither the guarantee 3576 violates against against multiple punishment guarantee multi- nor ple opinions consistent with trials is those which the Court constitutionality upheld two-stage criminal pro- Massachusetts, S., at 630- Ludwig v. ceedings. Kentucky, S., 118-120.16 Colten See also Brady, particular (1978), affords Swisher 438 U. S. reach. we for the and, indeed, precedent decision support mas- of a Maryland use scheme That case concerned receiv- master, after proceeding. Court ter in a Juvenile *20 to show the had failed concluded State evidence, that ing an committed the had beyond a doubt that reasonable minor the recommendation to robbery. The and master’s assault ex- filed conclusion. State Court that The set forth Juvenile rule, procedural to do under a as it was authorized ceptions, to the notice motion responded with dismiss minor and the its with procedural rule, the ground on that the exceptions Jeopardy Double de novo hearing, violated the for a provision habeas, On federal denied relief. The state courts Clause. held, violate system not Maryland did this Court that sys- fact that was the in the decision Important Clause. Id., at crack.” a “second prosecution provide not tem did closed “and additional was master before the record The only judge by the Juvenile Court be received can evidence held Ibid. The Court also the minor.” consent with the “unfairly sub- procedure in the nothing was there ordeal and expense, embarrassment, to the the defendant jects to more akin are “burdens Ibid. The . .” . of a second trial. post- request permissible judge’s from a resulting those two-stage sentencing establishing the most at read We § specifically Congress original bill introduced Indeed, procedure. disposi until after be considered final to was the sentence stated that 30, 91st appeal. S. expiration the time or until tion review Relating Organized Crime: (1969); to Measures Sess., Cong., 1st § Laws Criminal on before Subcommittee 30 et al. Hearings on S. 1st Judiciary, Cong., 91st Committee the Senate Procedures language however, was (1969). Congress, advised Sess., 28-29 statute, constitutionality preserve in order not needed was Id., 65 Cornell L. Rev. 196, and n. 18. See omitted. and it was trial briefing argument or following a bench trial than to the ”
(cid:127)'expense’ of a full-blown second Id., trial.... 217. And the extent the “[t]o Juvenile Court judge supplemental makes findings .. sponte, .—either sua response to the State’s ex- ceptions, in response juvenile’s exceptions, and either on the record or on a record supplemented by evidence which the parties objection raise no so does vio- without —he lating the constraints of Id., the Double Clause.” at 219. Court Swisher the proceedings characterized before
the master and those judge before the Juvenile as a con- Court tinuing single process distinguished situation in Breed Jones, held (1975), where it had been juvenile placed adjudi- twice in after an when, catory finding in Court, Juvenile he was transferred adult criminal court and tried convicted for the same conduct. Maryland Swisher,
Like the system at issue in 3576 does *21 subject not a defendant Maryland to second trial. The of system, course, concerns a whereas 3576 con- master, § cerns a federal trial court. is no difference, however, This of constitutional court no consequence, the federal trial has power impose to a final dangerous special offender sentence that not subject appeal. is to indeed, Section is more in scope Maryland limited in Swisher. procedure than the The federal statute specifies Appeals Court of that the the only increase sentence if trial abused its the court discretion or employed clearly unlawful or procedures made erroneous findings. appellate empowered The court thus is only Maryland to legal procedure correct Under the error. Swisher, judge legal involved the need find error on in not the part of de novo master; the he is free to make a determina- or If relating guilt innocence. is con- tion the facts against double guarantee with the jeopardy, sistent appellate review of was, Court held it the limited a sentence necessarily 3576 is constitutional. by § authorized be avoided. is to substance form over The exaltation is context it jeopardy in double has said that Court The controlling, action that is substance Linen Martin United action. given label Wilson, States Co., 571; S., Supply purpose have achieved could Congress atS.,U. constitutionality whose statute slightly different by a § provided might have Congress unquestionable. be would towas offender special dangerous be a found to a defendant court trial but mandatory term, specified receive ap- the court a lesser recommend could then recommendation accept the free to would be which peals, base no conceivable offer would scheme That it. reject defend- on the impact Yet the jeopardy objection. a double than, worse possibly exactly as, same would ant policy double No written. 3576 as § impact under and declar- procedures of these one by approving advanced is unconstitutional. ing the other represents passing that in noting worth perhaps
It is problem a specific to attack attempt legislative a considered tendency on is, the system, that justice our criminal in cases light sentences mete out “to judges some part personnel.” management crime organized involving Presi- by Report Society, a Free of Crime Challenge and Administration Law Enforcement Commission dent’s response Congress’ Section (1967). of Justice pp. 85-87 91-617, No. Rep. See S. plea. to that on the narrowly focused and is scope is limited The statute of “Government example not an It so identified. problem stands Jeopardy Clause the Double which against oppression” *22 Scott, It has S., States guard. See areas of the sentencing is one elsewhere observed been of reform. most in need system justice criminal of the (1973); Order Without Law Sentences: Criminal Frankel, M. Curtis, D. Just Toward Churgin, & O’Donnell, M. P. Frankel himself Judge System (1977). Sentencing Effective system present problem” “basic the the has observed arbitrary and of the sentencers to be power unbridled is “the Appellate at 49. review supra, discriminatory.” Frankel, should lead power, and upon a check this unlimited creates sentencing. consistency in greater degree chal- the constitutional § 3576 withstands We conclude that us. The judgment case before lenge raised remanded case is Appeals reversed, Court of and the opinion. with this proceedings further consistent
It is so ordered. White, Justice Brennan, Justice with whom Justice dissenting. join, and Justice Stevens Marshall, the United § Title 18 U. S. C. authorizes judge federal district appeal2 imposed by from a sentence further is too lenient and ground the sentence severity court to increase permits appellate neither 3576 violates The Court holds that initial sentence. part: pertinent Section 3576 states may sentencing court review of the on the record of the sentence “[A] . . by appeals. . be taken the defendant or the United States to a court procedure em- of the sentence include review of whether Review shall clearly erroneous, lawful, findings or the sen- ployed made were appeals tencing The court of on review court’s discretion was abused. presen- record, including may, considering entire the sentence after felony report, during and the the trial such tence information submitted sentencing court, findings sentencing hearing, and reasons of the and the any imposition of sentence sentence, impose affirm the or direct imposed, or originally remand court could have sentencing which sentence, except that a imposition sentencing proceedings and further only taken may on review of the sentence be made more severe hearing . . .” the United States and after . only if so in a criminal case appeal decisions The United States (1978) ; Scott, 84-85 S. United States authorized statute. Sanges, United States v. *23 pro- nor the multiple punishments against prohibition Jeop- Double multiple trials embodied against hibition the Court Because Amendment.3 of the Fifth ardy Clause finality degree appropriate misperceives fundamentally judge, the trial of sentence imposition to be accorded of a conclusion that enhancement the erroneous it reaches multiple an unconstitutional to 3576 not pursuant respectfully dissent. punishment. I
I Jeop- Double acknowledges, must, Court in- an “protect ardy purposes: principal Clause has two pos- subjected to the hazards dividual from being offense,” alleged once sible conviction more than 184, (1957), Green for the multiple punishments same prevent imposition (1969). Pearce, offense, North Carolina 395 U. S. pro- Jeopardy function of Double Clause’s overriding An protect against multiple is to against multiple hibition trials follow punishments: punishment legally “It is the that would danger guarded against the second conviction which is the real parte the Constitution.” Ex Lange, Wall. exclusively An need not punishment unconstitutional derive imposition from but stem from the prosecution, a second single prosecution. more than one sentence following parte Lange, supra, Bradley, (1943), Ex In re 50S. provide examples multiple punishments of unconstitutional flowing single from imprisonment and fine for an trial — punishable by imprisonment offense either or fine—but neither purports case to exhaust reach of the Double prohibition against multiple punishments. Clause’s Indeed, this Court consistently assumed that an in the increase any person subject shall for the same offence to be twice “[N]or put of life or limb . Const., . . .” U. S. Arndt. 5.
severity imposition to its issue subsequent a sentence —the *24 presented multiple punishment in this case—also constitutes Jeopardy example, in For violation the Double Clause.4 Benz, (1931), in 307 the Court 304, United States v. 282 U. S. during stated distinction the court same “[t]he may punishment, term a sentence so mitigate amend as to but not to upon ground so as increase it [is based] penalty subject increase the to double the defendant 5 punishment for the same in Reid Similarly, offense . Covert, 354 1, U. 37-38, (1957), S. n. 68 the Court stated: “In States, Swaim v. 553, United 165 S. this Court held U. the President or commanding power officer had re- turn a case to a If court-martial an increase sentence. the double jeopardy provisions Fifth of the Amendment applicable were such a would be unconstitutional.” practice Although the may dicta, Benz and statements never- Reid theless, correctly Court of Appeals stated that “[a]l- though such num- legally binding, dicta ... are their ber and the high authority impressive of their offer sources evidence of the strength prevalence of the view that jeopardy double clause im- bars an increase the sentence posed by (CA2 the district 769, 1979). court.” 604 F. 2d 785 Rehnquist My only Brother recently noted that “the Double interpreted parte Lange Clause as prevents Ex a court sentencing increasing from a defendant’s sentence
4 my jeopardy protection Under against multiple view double punishments, may technically a sentence not be increased once a correct imposed. distinguish technically sentence has been I would correction improper g., always See, sentence which Court has allowed. e. Bozza States, v. United 160, 330 U. S. 165-167 5 significance parte The Court dismisses the of Benz because it cited Ex Lange, (1874), present precise Wall. which did not issue on which, Court, according “gratuitously,” ante, 138, opined. Benz Lange Benz, It is true that different raised issue somewhat from but Lange question multiple punishment. did decide a of unconstitutional Lange, entirely then, appropriate. Benz’ citation of any statutory particular though even offense, second Whalen legislature.” sentence is within limits set v. (1980) S. (dissenting U. opinion).
II only repeatedly has the Not Court said that sentences not be imposition violating increased after the double without prohibition against but multiple punishments, analytic similarity of acquittal imposition a verdict of and the requires A acquittal this conclusion. verdict of represents the conclusion that the evidence does factfinder’s not warrant United States v. Martin finding guilty. Supply Co., Linen (1977). Similarly, *25 guilty second-degree verdict of murder charge where jury permitted it find guilty first-degree represents murder implicit finding factfinder’s first-degree do not facts warrant a murder Thus, conviction. a retrial on first-degree constitutionally murder is impermissible. States, een v. United Gr supra; Price Georgia, see (1970). S. The crim sentencing a convicted sufficiently inal analogous guilt a determination of or innocence that the Double pre Clause should government clude appeals from very decisions sentencing much as it prevents from appeals judgments of acquittal. The sentencing proceeding involves examination and eval uation of facts about which may entail defendant, taking of evidence, pronouncement and the of a sentence. imposition 10-year Thus, of a 25-year sentence where a sen permissible tence is under sentencing statute constitutes a finding justify only that the facts 10-year sentence and that higher sentence is In both unwarranted. acquittals and trier of sentences, the fact makes a adjudication factual removes from the defendant’s burden of charges risk the he acquitted potential which and the sentence which he did not receive. Unless there is a basis for according greater finality6 to acquittals, whether explicit or implicit, than
sentences, the Court’s result is untenable.7
The
proffers
Court
several reasons why acquittals and sen-
tences should be treated differently. None of them is per-
suasive. First, the Court suggests that common-law historical
evidence supports its distinction between the finality accorded
to verdicts and to
Ante,
sentences.
at 133-134. The Court’s
observation that
the “common-law writs of autre
acquit
jois
and autre jois convict
protections
were
against retrial,” ante,
at 133, is true, but that fact does not dispose of the additional
purpose of the Double Jeopardy Clause to prevent multiple
punishments of the sort
authorized
§ 3576. Moreover,
the practice of increasing a sentence “so long as it took place
during the same term of court,” ante, at
or “so long
133-134,
as [the
yet
defendant]
begun to serve that sentence,”
ante, at 134, has never been
sanctioned
this Court.
finality
accorded sentences has been recognized in other contexts.
Berman v.
States,
United
211, 212 (1937)
(Sentence is appeal-
by-defendant
able
notwithstanding suspension of execution.
judg
“Final
ment in a criminal case means sentence. The sentence is the judgment”);
Corey
see
v. United States, 375 U. S.
7The Court suggests that
law
“[t]he
'attaches particular significance to
”
an acquittal,’
ante, at 129, quoting United States
Scott,
S.,
“
91, and 'we necessarily afford absolute finality
jury’s
to a
verdict
”
acquittal
matter how
—no
erroneous its decision,’ ante,
quoting
Burks v.
1,16
U. S.
(1978) (emphasis
original).
*26
Fong Foo v. United States, 369 U.
(directed
143 (1962)
verdict of
acquittal by
judge
trial
in
jury
middle of
trial is entitled to finality and
is
by
unreviewable
appeal even though
upon
“based
an egregiously errone
ous foundation”).
explains
That
in part
the result reached in United
States Wilson,
I suggest that most defendants are more concerned with how much time they spend must prison than with whether their record shows a conviction. This say ordeal of trial is not important. And obviously it is the con- viction itself which is the predicate for time in prison. But clearly, the defendant does not breathe sigh of relief once he has been found guilty. Indeed, an overwhelming number of criminal defendants are willing to enter plea bargains in order to keep their time in prison as brief possible.9 as purpose Another of the Double Jeopardy Clause prevent is to “en hancing the possibility that even though innocent, [a defendant] found guilty.” Green v. United States, 355 S.,U. at 188. A simi lar analysis applies with respect to sentencing. Repeated attempts at sen tencing are likely produce an unjustifiably harsh sentence as repeated trials are likely to result in an guilty unwarranted verdict. In both in stances, the Government seeks a second opportunity present evidence could presented have in the first instance. Burks v. United States, supra, at 11; see 18 U. S. C. (“The court of appeals . may . . . . . remand for further sentencing proceedings and imposition of sentence”). 9 For the 12 months ending June 32,913 convictions in the United States Courts, District 27,295 were guilty plea plea of nolo contendere. Report Annual of the Director of the Administrative Office of the United States Courts Under the view, Court’s might there be no double jeopardy against bar a Government appeal from the sentence meted pursuant out to a guilty *28 sentencing the that then believe cannot the Court Surely, suffer do not that defendants and merely incidental is phase sentencing the defendant, convicted the anxiety. To acute To phase. guilt-innocence the as certainly as critical is phase §C.S. holding a reason otherwise pretend reality. ignore tois valid that notion the circular on rests contrary view The Court’s his sentence finality of expectation no “has the défendant con- is § 3576] to [pursuant appeal the [Government] until That Ante, expired.” appeal to the time cluded defend- the prolongs increases which statute very the is, expectations. his conditioning alleviates anxiety ant’s lead reasoning could Court’s extended, the Logically Govern- permits Clause Double the conclusion of purpose If acquittal.10 of verdicts from appeals ment proceedings further from acquittal of insulating verdict defendants of concern out part,11 least is, dis- could Congress oppression, to Government subjected the Govern- authorizing by a statute objection pose Court’s Under acquittal. from verdicts appeal to ment “with “charge” the would statute such view, expecta- any eradicate thus provisions of its knowledge” acquittal. his finality in tion finality differentiate attempts Finally, Court reliance through of sentences finality from acquittals Swisher Pearce, (1969), S. 711 Carolina North supports decision Neither S. 204 Brady, 438 U. imposi- Pearce, Court allowed In result. the Court’s latter’s prosecutors over with might bargain plea. defendants While determining double irrelevant possibility rights, appellate pursuant imposed sentence appeal from consequences bargain. plea to a acquittal are not acknowledges that verdicts course, Court, of appealable. lead against retrials protect acquittals Finality accorded is also supra. n. guilty verdicts. ing to erroneous
tion of
longer
upon
retrial following appellate re-
versal of the defendant’s conviction. Our holding rested
“ultimately upon the premise the original conviction
has, at the defendant’s behest, been wholly nullified and the
slate wiped clean.”
Justice note also I dissent, Brennan’s I join Justice While Pearce, Carolina North in opinion in its nor today neither . pro once the 13 be introduced could Swisher, no evidence Moreover, in to consented juvenile terminated, unless was master ceeding before contemplates contrast, 3576 By § evidence. additional of the introduction review appellate with evidentiary in connection proceedings additional supra. 1nn. and See sentences. by or appeals 14 by the court adjudication subsequent fact Similarly, to pursuant hearing evidentiary for an it on remand court the district following a second unconstitutional an akin to 3576 C. U. S. § 18 acquittal. verdict imposition bar double is no view, there the Court’s Under has the defendant court appellate by an after punishment of additional although such court, by the trial imposed of the completed service would and presently drafted by contemplated is not an outcome any event. process due violate presumably U. S. has (1969), the Court adequately responded Justice powerful Harlan’s analysis of the double jeopardy Id., issue in that case. at 744-751 (concurring part dissenting part). purported response Its in Pearce —that although allowing rationale a more punishment severe after a retrial variously “has been verbalized, it rests ulti- mately upon premise original conviction has, at the defendant’s been behest, wholly id., nullified,” 720- clearly has no application to the question whether a 721— more severe sentence may imposed the prosecutor’s behest when the original conviction has been nullified.
The straightforward analysis by worthy Justice Harlan is emphasis:
“Every consideration enunciated the Court in sup- port of the decision in Green [v. U. S. (1957)] applies equal with force to the situation at In bar. each subjected defendant was once instance, to the risk of receiving a maximum but punishment, determined legal process that he receive should only specified punishment less than the maximum. id., at the concept 190. And or fiction ‘implicit of an acquittal’ greater ibid., offense, applies equally to the greater sentence: in each case it was determined at the former trial that the defendant or his offense was of degree limited certain ‘badness’ gravity only, only therefore merited a certain punishment. limited . . . “If, policy as a matter of imposi- practicality, tion of an increased sentence on retrial the same consequences whether guise in the effected of an increase in the degree augmentation of offense or punish- what other ment, factors render one route forbidden and *31 permissible the other under Double Jeopardy Clause? It cannot be that the provision comprehend does not distinguished from ‘sentences’—as ‘offenses’—for it has long prisoner been established that once a commences prevents the Clause from sentence, service a court one. greater imposing then the sentence vacating (1931); 306-307 304, Benz, Id., (1874).” 168, Lange, Wall. parte Ex 746-747. than more nothing analysis is response Court’s however that, a rationale from extrapolation wooden rather wholly 720-721, id., at verbalized,” "variously case. by this presented question irrelevant, important written Brennan Justice with what agree I Because I wrote Harlan Justice what with well
today as dissent. respectfully