OCTOBER TERM, 2002
Syllabus
SATTAZAHN
v. PENNSYLVANIA
CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA
No. 01-7574. Argued November 4, 2002-Decided January 14,2003
Under Pennsylvania law, (1) the verdict in the penalty phase of
capital proceedings must be death if the jury unanimously finds at
least one aggravating circumstance and no mitigating circumstance
or one or more aggravating circumstances outweighing any mitigating
circumstances, but it must be life imprisonment in all other
instances; and (2) the court may discharge a jury if it determines
that the jury will not unanimously agree on the sentence, but the
court must then enter a life sentence. When petitioner's
penalty-phase jury reported to the trial judge that it was
hopelessly deadlocked 9-to-3 for life imprisonment, the court
discharged the jury and entered a life sentence. On appeal, the
Pennsylvania Superior Court reversed petitioner's first-degree
murder conviction and remanded for a new trial. At the second
trial, Pennsylvania again sought the death penalty and the jury
again convicted petitioner, but this time the jury imposed a death
sentence. In affirming, the Pennsylvania Supreme Court found that
neither the Fifth Amendment's Double Jeopardy Clause nor the
Fourteenth Amendment's Due Process Clause barred Pennsylvania from
seeking the death penalty at the retrial.
Held:
1. There was no double-jeopardy bar to Pennsylvania's seeking
the death penalty on retrial. Pp. 106-110, 113-115.
(a) Where, as here, a defendant who is convicted of murder and
sentenced to life imprisonment succeeds in having the conviction
set aside on appeal, jeopardy has not terminated, so that a life
sentence imposed in connection with the initial conviction raises
no doublejeopardy bar to a death sentence on retrial.
Stroud
v.
United States, 251 U. S. 15. While, in
the line of cases commencing with
Bullington v.
Missouri, 451
U. S. 430, this Court has found that the Double Jeopardy Clause
applies to capital-sentencing proceedings that "have the hallmarks
of the trial on guilt or innocence," id., at 439, the relevant
inquiry in that context is not whether the defendant received a
life sentence the first time around, but whether a first life
sentence was an "acquittal" based on findings sufficient to
establish legal entitlement to the life sentence-i.
e.,
findings that the government failed to prove one or more
aggravating circumstances beyond a reasonable doubt,
Arizona
v.
Rumsey, 467
U. S. 203,211. Pp. 106-109.
102
Syllabus
(b) Double-jeopardy protections were not triggered when the jury
deadlocked at petitioner's first sentencing proceeding and the
court prescribed a life sentence pursuant to Pennsylvania law. The
jury in that first proceeding was deadlocked and made no findings
with respect to the alleged aggravating circumstance. That result,
or nonresult, cannot fairly be called an acquittal, based on
findings sufficient to establish legal entitlement to a life
sentence. Neither was the entry of a life sentence by the judge an
"acquittal." Under Pennsylvania's scheme, a judge has no discretion
to fashion a sentence once he finds the jury is deadlocked, and he
makes no findings and resolves no factual matters. The Pennsylvania
Supreme Court also made no finding that the Pennsylvania
Legislature intended the statutorily required entry of a life
sentence to create an "entitlement" even without an "acquittal."
Pp. 109-110.
(c) Dictum in
United States v.
Scott, 437 U. S. 82, 92, does not
support the proposition that double jeopardy bars retrial when a
defendant's case has been fully tried and the court on its own
motion enters a life sentence. The mere prospect of a second
capital-sentencing proceeding does not implicate the perils against
which the Double Jeopardy Clause seeks to protect. Pp. 113-115.
2. The Due Process Clause also did not bar Pennsylvania from
seeking the death penalty at the retrial. Nothing in § 1 of the
Fourteenth Amendment indicates that any "life" or "liberty"
interest that Pennsylvania law may have given petitioner in the
first proceeding's life sentence was somehow immutable, and he was
"deprived" of any such interest only by operation of the "process"
he invoked to invalidate the underlying first-degree murder
conviction. This Court declines to hold that the Due Process Clause
provides greater double-jeopardy protection than does the Double
Jeopardy Clause. pp. 115-116.
563 Pa. 533, 763 A. 2d 359, affirmed.
SCALIA, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, IV, and V, in
which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ.,
joined, and an opinion with respect to Part III, in which
REHNQUIST, C. J., and THOMAS, J., joined. O'CONNOR, J., filed an
opinion concurring in part and concurring in the judgment,
post, p. 116. GINSBURG, J., filed a dissenting opinion, in
which STEVENS, SOUTER, and BREYER, JJ., joined,
post, p.
118.
Robert Brett Dunham argued the cause for petitioner.
With him on the briefs were Anne L. Saunders and John T.
Adams.
103
Iva C.
Dougherty argued the cause for respondent.
With her on the brief were
Mark C.
Baldwin and
Alisa R. Hobart.
Sri Srinivasan argued the cause pro hac vice for the United
States as amicus curiae urging affirmance. With him on the brief
were Solicitor General Olson, Assistant Attorney General Chertoff,
Deputy Solicitor General Dreeben, and Robert J. Erickson.
JUSTICE SCALIA announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, IV, and V,
and an opinion with respect to Part III, in which THE CHIEF JUSTICE
and JUSTICE THOMAS join.*
In this case, we consider once again the applicability of the
Fifth Amendment's Double Jeopardy Clause in the context of
capital-sentencing proceedings.
I
On Sunday evening, April 12, 1987, petitioner David Allen
Sattazahn and his accomplice, Jeffrey Hammer, hid in a wooded area
waiting to rob Richard Boyer, manager of the Heidelberg Family
Restaurant. Sattazahn carried a .22caliber Ruger semiautomatic
pistol and Hammer a Ai-caliber revolver. They accosted Boyer in the
restaurant's parking lot at closing time. With guns drawn, they
demanded the bank deposit bag containing the day's receipts. Boyer
threw the bag toward the roof of the restaurant. Petitioner
commanded Boyer to retrieve the bag, but instead of complying Boyer
tried to run away. Both petitioner and Hammer fired shots, and
Boyer fell dead. The two men then grabbed the deposit bag and
fled.
The Commonwealth of Pennsylvania prosecuted petitioner and
sought the death penalty. On May 10, 1991, a jury returned a
conviction of first-, second-, and third-degree murder, and various
other charges. In accordance with Penn-
*JU8TICE KENNEDY joins all but Part III of this opinion.
104
sylvania law the proceeding then moved into a penalty phase. See
Pa. Stat. Ann., Tit. 18, § 1l02(a)(1) (Purdon 1998); Pa. Stat.
Ann., Tit. 42, § 9711(a)(1) (Purdon Supp. 2002). The Commonwealth
presented evidence of one statutory aggravating circumstance:
commission of the murder while in the perpetration of a felony. See
§ 9711(d)(6). Petitioner presented as mitigating circumstances his
lack of a significant history of prior criminal convictions and his
age at the time of the crime. See §§ 9711(e)(1), (4). 563 Pa. 533,
539, 763 A. 2d 359, 362 (2000).
Pennsylvania law provides that, in the penalty phase of
capital proceedings:
"(iv) the verdict must be a sentence of death if the jury
unanimously finds at least one aggravating circumstance ... and no
mitigating circumstance or if the jury unanimously finds one or
more aggravating circumstances which outweigh any mitigating
circumstances. The verdict must be a sentence of life imprisonment
in all other cases.
"(v) the court may, in its discretion, discharge the jury if it
is of the opinion that further deliberation will not result in a
unanimous agreement as to the sentence, in which case the court
shall sentence the defendant to life imprisonment." § 9711(c)
(Purdon Supp. 2002).
After both sides presented their evidence, the jury deliberated
for some 3lh hours, App. 23, after which it returned a note signed
by the foreman which read: "We, the jury are hopelessly deadlocked
at 9-3 for life imprisonment. Each one is deeply entrenched in
their
[sic] position. We do not expect anyone to change his
or her position."
Id., at 25. Petitioner then moved "under
9711(c), subparagraph 1, subparagraph Roman Numeral 5, that the
jury be discharged and that [the court] enter a sentence of life
imprisonment."
Id., at 22. The trial judge, in accordance
with Pennsylvania
105
law, discharged the jury as hung, and indicated that he would
enter the required life sentence, id., at 23-24, which he later
did, id., at 30-33.
Petitioner appealed to the Pennsylvania Superior Court.
That court concluded that the trial judge had erred in
instructing the jury in connection with various offenses with which
petitioner was charged, including first-degree murder. It
accordingly reversed petitioner's first-degree murder conviction
and remanded for a new trial.
Commonwealth v.
Sattazahn, 428 Pa. Super. 413, 631 A. 2d 597 (1993).
On remand, Pennsylvania filed a notice of intent to seek the
death penalty. In addition to the aggravating circumstance alleged
at the first sentencing hearing, the notice also alleged a second
aggravating circumstance, petitioner's significant history of
felony convictions involving the use or threat of violence to the
person. (This was based on guilty pleas to a murder, multiple
burglaries, and a robbery entered after the first trial.)
Petitioner moved to prevent Pennsylvania from seeking the death
penalty and from adding the second aggravating circumstance on
retrial. The trial court denied the motion, the Superior Court
affirmed the denial, App. 73, and the Pennsylvania Supreme Court
declined to review the ruling,
Commonwealth v.
Sattazahn, 547 Pa. 742, 690 A. 2d 1162 (1997). At the second
trial, the jury again convicted petitioner of first-degree murder,
but this time imposed a sentence of death.
On direct appeal, the Pennsylvania Supreme Court affirmed both
the verdict of guilt and the sentence of death on retrial. 563 Pa.,
at 551, 763 A. 2d, at 369. Relying on its earlier decision in
Commonwealth v.
Martorano, 535 Pa. 178, 634 A. 2d
1063 (1993), the court concluded that neither the Double Jeopardy
Clause nor the Due Process Clause barred Pennsylvania from seeking
the death penalty at petitioner's retrial. 563 Pa., at 545-551, 763
A. 2d, at 366-369. We granted certiorari. 535 U. S. 926 (2002).
106
II A
The Double Jeopardy Clause of the Fifth Amendment commands that
"[n]o person shall ... be subject for the same offence to be twice
put in jeopardy of life or limb." Under this Clause, once a
defendant is placed in jeopardy for an offense, and jeopardy
terminates with respect to that offense, the defendant may neither
be tried nor punished a second time for the same offense.
North
Carolina v.
Pearce, 395 U. S. 711, 717
(1969). Where, as here, a defendant is convicted of murder and
sentenced to life imprisonment, but appeals the conviction and
succeeds in having it set aside, we have held that jeopardy has not
terminated, so that the life sentence imposed in connection with
the initial conviction raises no double-jeopardy bar to a death
sentence on retrial.
Stroud v.
United States,
251 U. S. 15
(1919).
In
Stroud, the only offense at issue was that of murder,
and the sentence was imposed by a judge who did not have to make
any further findings in order to impose the death penalty.
Id., at 18. In
Bullington v.
Missouri,
451 U. S. 430
(1981), however, we held that the Double Jeopardy Clause does apply
to capital-sentencing proceedings where such proceedings "have the
hallmarks of the trial on guilt or innocence."
Id., at 439.
We identified several aspects of Missouri's sentencing proceeding
that resembled a trial, including the requirement that the
prosecution prove certain statutorily defined facts beyond a
reasonable doubt to support a sentence of death.
Id., at
438. Such a procedure, we explained,
"explicitly requires
the jury to determine whether the prosecution has 'proved its
case.'"
Id., at 444. Since, we concluded, a sentence of life
imprisonment signifies that" 'the jury has already acquitted the
defendant of whatever was necessary to impose the death sentence,'"
the Double Jeopardy Clause bars a State from seeking the death
penalty on retrial.
Id., at 445 (quoting
State ex rel.
Westfall
107
v.
Mason, 594 S. W. 2d 908, 922 (Mo. 1980) (Bardgett, C.
J., dissenting) ).
We were, however, careful to emphasize that it is not the mere
imposition of a life sentence that raises a doublejeopardy bar. We
discussed
Stroud, a case in which a defendant who had been
convicted of first-degree murder and sentenced to life imprisonment
obtained a reversal of his conviction and a new trial when the
Solicitor General confessed error. In
Stroud, the Court
unanimously held that the Double Jeopardy Clause did not bar
imposition of the death penalty at the new trial. 251 U. S., at
17-18. What distinguished
Bullington from
Stroud, we
said, was the fact that in
Stroud "there was no separate
sentencing proceeding at which the prosecution was required to
prove-beyond a reasonable doubt or otherwise-additional facts in
order to justify the particular sentence."
Bullington, 451
U. S., at 439. We made clear that an "acquittal" at a trial-like
sentencing phase, rather than the mere imposition of a life
sentence, is required to give rise to double-jeopardy protections.
Id., at 446.
Later decisions refined
Bullington's rationale. In
Arizona v.
Rumsey, 467 U. S. 203 (1984), the
State had argued in the sentencing phase, based on evidence
presented during the guilt phase, that three statutory aggravating
circumstances were present. The trial court, however, found that no
statutory aggravator existed, and accordingly entered judgment in
the accused's favor on the issue of death. On the State's
cross-appeal, the Supreme Court of Arizona concluded that the trial
court had erred in its interpretation of one of the statutory
aggravating circumstances, and remanded for a new sentencing
proceeding, which produced a sentence of death.
Id., at
205-206. In setting that sentence aside, we explained that "[t]he
double jeopardy principle relevant to [Rumsey's] case is the same
as that invoked in
Bullington: an acquittal on the merits by
the sole deci-
108
sionmaker in the proceeding is final and bars retrial on the
same charge."
Id., at 211.
"The trial court entered findings denying the existence of each
of the seven statutory aggravating circumstances, and as required
by state law, the court then entered judgment in respondent's favor
on the issue of death. That judgment, based on findings
sufficient to establish legal entitlement to the life sentence,
amounts to an acquittal on the merits and, as such, bars any
retrial of the appropriateness of the death penalty." Ibid.
(emphasis added).
Rumsey thus reaffirmed that the relevant inquiry for
double-jeopardy purposes was not whether the defendant received a
life sentence the first time around, but rather whether a first
life sentence was an "acquittal" based on findings sufficient to
establish legal entitlement to the life sentence-i.
e.,
findings that the government failed to prove one or more
aggravating circumstances beyond a reasonable doubt.
A later case in the line,
Poland v.
Arizona,
476 U. S. 147
(1986), involved two defendants convicted of first-degree murder
and sentenced to death. On appeal the Arizona Supreme Court set
aside the convictions (because of jury consideration of nonrecord
evidence) and further found that there was insufficient evidence to
support the one aggravating circumstance found by the trial court.
It concluded, however, that there
was sufficient evidence to
support a
different aggravating circumstance, which the
trial court had thought not proved. The court remanded for retrial;
the defendants were again convicted of first-degree murder, and a
sentence of death was again imposed.
Id., at 149-150. We
decided that in those circumstances, the Double Jeopardy Clause was
not implicated. We distinguished
Bullington and
Rumsey on the ground that in
Poland, unlike in those
cases, neither the judge nor the jury had "acquitted" the de-
109
fendant in his first capital-sentencing proceeding by entering
findings sufficient to establish legal entitlement to the life
sentence. 476 U. S., at 155-157.
B
Normally, "a retrial following a 'hung jury' does not violate
the Double Jeopardy Clause."
Richardson v.
United
States, 468 U. S.
317, 324 (1984). Petitioner contends, however, that given the
unique treatment afforded capital-sentencing proceedings under
Bullington, double-jeopardy protections were triggered when
the jury deadlocked at his first sentencing proceeding and the
court prescribed a sentence of life imprisonment pursuant to
Pennsylvania law.
We disagree. Under the
Bullington line of cases just
discussed, the touchstone for double-jeopardy protection in
capital-sentencing proceedings is whether there has been an
"acquittal." Petitioner here cannot establish that the jury or the
court "acquitted" him during his first capitalsentencing
proceeding. As to the jury: The verdict form returned by the
foreman stated that the jury deadlocked 9-to-3 on whether to impose
the death penalty; it made no findings with respect to the alleged
aggravating circumstance. That result-or more appropriately, that
nonresult-cannot fairly be called an acquittal "based on findings
sufficient to establish legal entitlement to the life sentence."
Rumsey, supra, at 211.
The entry of a life sentence by the judge was not "acquit-
tal," either. As the Pennsylvania Supreme Court explained:
"'Under Pennsylvania's sentencing scheme, the judge has no
discretion to fashion sentence once he finds that the jury is
deadlocked. The statute directs him to enter a life sentence. 42
Pa. C. S. § 9711(c)(1)(v) (. .. if ... further deliberation will
not result in a unanimous agreement as to the sentence, ... the
court shall sentence the defendant to life imprisonment.)
(emphasis added). The judge makes no findings and resolves no
110
Opinion of SCALIA, J.
factual matter. Since judgment is not based on findings which
resolve some factual matter, it is not sufficient to establish
legal entitlement to a life sentence. A default judgment does not
trigger a double jeopardy bar to the death penalty upon retrial.' "
563 Pa., at 548, 763 A. 2d, at 367 (quoting Martorano, 535
Pa., at 194, 634 A. 2d, at 1070).
It could be argued, perhaps, that the statutorily required entry
of a life sentence creates an "entitlement" even without an
"acquittal," because that is what the Pennsylvania Legislature
intended-i.
e., it intended that the life sentence should
survive vacation of the underlying conviction. The Pennsylvania
Supreme Court, however, did not find such intent in the statute-and
there was eminently good cause not to do so. A State's simple
interest in closure might make it willing to accept the default
penalty of life imprisonment when the conviction is affirmed and
the case is, except for that issue, at an end-but unwilling to do
so when the case must be retried anyway. And its interest in
conservation of resources might make it willing to leave the
sentencing issue unresolved (and the default life sentence in
place) where the cost of resolving it is the empaneling of a new
jury and, in all likelihood, a repetition of much of the guilt
phase of the first trial-though it is eager to attend to that
unfinished business if there is to be a new jury and a new trial
anyway.
III A
When
Bullington, Rumsey, and
Poland were decided,
capital-sentencing proceedings were understood to be just that:
sentencing proceedings. Whatever "hallmarks of [a] trial"
they might have borne,
Bullington, 451 U. S., at 439, they
differed from trials in a respect crucial for purposes of the
Double Jeopardy Clause: They dealt only with the
sentence to
be imposed for the "offence" of capital murder. Thus, in its search
for a rationale to support
Bullington and
111
its "progeny," the Court continually tripped over the text of
the Double Jeopardy Clause.
Recent developments, however, have illuminated this part of our
jurisprudence. Our decision in
Apprendi v.
New
Jersey,
530 U. S.
466 (2000), clarified what constitutes an "element" of an
offense for purposes of the Sixth Amendment's jury-trial guarantee.
Put simply, if the existence of any fact (other than a prior
conviction) increases the maximum punishment that may be imposed on
a defendant, that fact-no matter how the State labels
it-constitutes an element, and must be found by a jury beyond a
reasonable doubt.
Id., at 482-484, 490.
Just last Term we recognized the import of
Apprendi in
the context of capital-sentencing proceedings. In
Ring v.
Arizona, 536
U. S. 584 (2002), we held that aggravating circumstances that
make a defendant eligible for the death penalty "operate as 'the
functional equivalent of an element of a
greater offense.'"
Id., at 609 (emphasis added). That is to say, for purposes of
the Sixth Amendment's jury-trial guarantee, the underlying offense
of "murder" is a distinct, lesser included offense of "murder plus
one or more aggravating circumstances": Whereas the former exposes
a defendant to a maximum penalty of life imprisonment, the latter
increases the maximum permissible sentence to death. Accordingly,
we held that the Sixth Amendment requires that a jury, and not a
judge, find the existence of any aggravating circumstances, and
that they be found, not by a mere preponderance of the evidence,
but beyond a reasonable doubt.
Id., at 608-609.
We can think of no principled reason to distinguish, in this
context, between what constitutes an offense for purposes of the
Sixth Amendment's jury-trial guarantee and what constitutes an
"offence" for purposes of the Fifth Amendment's Double Jeopardy
Clause. Cf.
Monge v.
California, 524 U. S. 721, 738 (1998)
(SCALIA, J., dissenting) ("The fundamental distinction between
facts that are
elements of a criminal
112
Opinion of SCALIA, J.
offense and facts that go only to the
sentence" not only
"delimits the boundaries of ... important constitutional rights,
like the Sixth Amendment right to trial by jury," but also
"provides the foundation for our entire double jeopardy
jurisprudence"). In the
post-Ring world, the Double Jeopardy
Clause can, and must, apply to some capital-sentencing proceedings
consistent with the text of the Fifth Amendment. If a jury
unanimously concludes that a State has failed to meet its burden of
proving the existence of one or more aggravating circumstances,
double-jeopardy protections attach to that "acquittal" on the
offense of "murder plus aggravating circumstance(s)." Thus,
Rumsey was correct to focus on whether a factfinder had made
findings that constituted an "acquittal" of the aggravating
circumstances; but the reason that issue was central is not that a
capitalsentencing proceeding is "comparable to a trial," 467 U. S.,
at 209 (citing
Bullington, supra, at 438), but rather that
"murder plus one or more aggravating circumstances" is a separate
offense from "murder"
simpliciter.
B
For purposes of the Double Jeopardy Clause, then, "firstdegree
murder" under Pennsylvania law-the offense of which petitioner was
convicted during the guilt phase of his proceedings-is properly
understood to be a lesser included offense of "first-degree murder
plus aggravating circumstance(s)." See
Ring, supra, at 609.
Thus, if petitioner's first sentencing jury had unanimously
concluded that Pennsylvania failed to prove any aggravating
circumstances, that conclusion would operate as an "acquittal" of
the greater offense-which would bar Pennsylvania from retrying
petitioner on that greater offense (and thus, from seeking the
death penalty) on retrial. Cf.
Rumsey, supra, at 211.
But that is not what happened. Petitioner was convicted in the
guilt phase of his first trial of the lesser offense of
first-degree murder. During the sentencing phase, the jury
113
deliberated without reaching a decision on death or life, and
without making any findings regarding aggravating or mitigating
circumstances. After 3lf2 hours the judge dismissed the jury as
hung and entered a life sentence in accordance with Pennsylvania
law. As explained,
supra, at 109-110, neither judge nor jury
"acquitted" petitioner of the greater offense of "first-degree
murder plus aggravating circumstance(s)." Thus, when petitioner
appealed and succeeded in invalidating his conviction of the lesser
offense, there was no double-jeopardy bar to Pennsylvania's
retrying petitioner on both the lesser and the greater offense; his
"jeopardy" never terminated with respect to either. Cf.
Green v.
United States, 355 U. S. 184, 189 (1957)
(citing
United States v.
Ball, 163 U. S. 662 (1896));
Selvester v.
United States, 170 U. S. 262, 269
(1898).
IV
The dissent reads the Court's decision in
United States
v.
Scott, 437
U. S. 82 (1978), as supporting the proposition that where, as
here, a defendant's "case was fully tried and the court, on its own
motion, entered a final judgment-a life sentence-terminating the
trial proceedings,"
post, at 126 (opinion of GINSBURG, J.),
the Double Jeopardy Clause bars retrial. There are several problems
with this reasoning.
First, it is an understatement to say that
"Scott ... did
not home in on a case like [petitioner's],"
post, at 123.
The statement upon which the dissent relies-that double jeopardy
"may" attach when the "trial judge terminates the proceedings
favorably to the defendant on a basis not related to factual guilt
or innocence," 437 U. S., at 92, at least where the defendant "had
either been found not guilty
or ... had at least insisted on
having the issue of guilt submitted to the first trier of fact,"
id., at 96 (emphasis added)-was nothing more than dictum, and a
tentative one ("may") at that. It would be a thin reed on which to
rest a hitherto unknown constitutional prohibition of the entirely
rational course of
114
making a hung jury's failure to convict provisionally final,
subject to change if the case must be retried anyway.
Second, the dictum in
Scott does not even embrace the
present case. The petitioner here did not "insist" upon a merits
determination, but to the contrary asked that the jury be dismissed
as hung. As the dissent recognizes, when the jury announced that it
was deadlocked, petitioner "move[d] 'that the jury be discharged'
and that a life sentence be entered under CPa. Stat. Ann., Tit.
42,] § 9711(c)(1)(v)."
Post, at 125, n. 5. It is no response
to say that "[t]he judge did not grant [the] motion," but instead
made a legal determination whether petitioner was entitled to the
judgment he sought.
Ibid. Surely double-jeopardy protections
cannot hinge on whether a trial court characterizes its action as
self-initiated or in response to motion. Cf.
Scott, supra,
at 96. What actually happened in this case is the same as what
happened in
Scott, where we
denied double-jeopardy
protection: (1) the defendant moved for entry of a judgment in his
favor on procedural grounds (there, delay in indictment; here, a
hung jury); (2) the judge measured facts (there, the length of
delay; here, the likelihood of the jury's producing a verdict)
against a legal standard to determine whether such relief was
appropriate; and (3) concluding that it was, granted the
relief.
Nor, in these circumstances, does the prospect of a second
capital-sentencing proceeding implicate any of the "perils against
which the Double Jeopardy Clause seeks to protect."
Post, at
124 (GINSBURG, J., dissenting). The dissent stresses that a
defendant in such circumstances is "subject to the 'ordeal' of a
second full-blown life or death trial," which" 'compel[s] [him] to
live in a continuing state of anxiety and insecurity.'"
Ibid. (quoting
Green v.
United States, supra,
at 187); see also
post, at 127. But as even the dissent must
admit,
post, at 125, we have not found this concern
determinative of double jeopardy in all circumstances. And it
should not be so here. This case hardly presents the specter of
"an
115
all-powerful state relentlessly pursuing a defendant who had
either been found not guilty or who had at least insisted on having
the issue of guilt submitted to the first trier of fact."
Scott,
supra, at 96. Instead, we see here a State which, for any
number of perfectly understandable reasons,
supra, at 110,
has quite reasonably agreed to accept the default penalty of life
imprisonment when the conviction is affirmed and the case is,
except for that issue, at an end-but to pursue its
not-yet-vindicated interest in "'one complete opportunity to
convict those who have violated its laws'" where the case must be
retried anyway,
post, at 124 (quoting
Arizona v.
Washington, 434 U. S. 497, 509
(1978)).
v
In addition to his double-jeopardy claim, petitioner raises a
freestanding claim alleging deprivation of due process in violation
of the Fourteenth Amendment. He contends that, regardless of
whether the imposition of the death sentence at the second trial
violated the Double Jeopardy Clause, it unfairly deprived him of
his "life" and "liberty" interests in the life sentence resulting
from his first sentencing proceeding. He frames the argument in
these terms:
"Pennsylvania created a constitutionally protected life and
liberty interest in the finality of the life judgment statutorily
mandated as a result of a [deadlocked] jury. That right vested when
the court found the jury deadlocked and imposed a mandatory life
sentence. Subjecting [p]etitioner to a capital resentencing once
that right has vested violated [D]ue [P]rocess." Reply Brief for
Petitioner 18-19.
We think not. Section 1 of the Fourteenth Amendment commands
that "[n]o State shall ... deprive any person of life, liberty, or
property,
without due process of law .... " (Emphasis
added.) Nothing indicates that any "life" or "liberty" interest
that Pennsylvania law may have given peti-
116
Opinion of O'CONNOR, J.
tioner in the life sentence imposed after his first
capitalsentencing proceeding was somehow immutable. And he was
"deprived" of any such interest only by operation of the "process"
he invoked to invalidate the underlying firstdegree murder
conviction on which it was based.
At bottom, petitioner's due-process claim is nothing more than
his double-jeopardy claim in different clothing. As we have
said:
"The Bill of Rights speaks in explicit terms to many aspects of
criminal procedure, and the expansion of those constitutional
guarantees under the open-ended rubric of the Due Process Clause
invites undue interference with both considered legislative
judgments and the careful balance that the Constitution strikes
between liberty and order." Medina v. California,
505 U. S. 437,
443 (1992).
We decline petitioner's invitation to hold that the Due Process
Clause provides greater double-jeopardy protection than does the
Double Jeopardy Clause.
***
The Pennsylvania Supreme Court correctly concluded that neither
the Fifth Amendment's Double Jeopardy Clause nor the Fourteenth
Amendment's Due Process Clause barred Pennsylvania from seeking the
death penalty against petitioner on retrial. The judgment of that
court is, therefore,
Affirmed.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I join Parts I, II, IV; and V of the Court's opinion in this
case. I do not join Part III, which would further extend the reach
of
Apprendi v.
New Jersey, 530 U. S. 466 (2000),
because I continue to believe that case was wrongly decided. See
id., at 523-553 (O'CONNOR, J., dissenting); see also
Ring
117
v.
Arizona, 536 U. S. 584, 619-620
(2002) (O'CONNOR, J., dissenting). It remains my view that
"Apprendi's rule that any fact that increases the maximum
penalty must be treated as an element of the crime is not required
by the Constitution, by history, or by our prior cases."
Id., at 619.
I would resolve petitioner's double jeopardy claim on the sole
ground that under
Bullington v.
Missouri, 451 U. S. 430 (1981), and
its progeny a life sentence imposed by operation of law after a
capital sentencing jury deadlocks and fails to reach a unanimous
verdict is not an "acquittal on the merits" barring retrial.
Because death penalty sentencing proceedings bear the hallmarks of
a trial, we held in
Arizona v.
Rumsey, 467 U. S. 203, 211
(1984), that "an acquittal on the merits by the sole decisionmaker
in the proceeding is final and bars retrial on the same charge." A
defendant is "acquitted" of the death penalty for purposes of
double jeopardy when the sentencer "decide[s] that the prosecution
has not proved its case that the death penalty is appropriate."
Poland v.
Arizona, 476 U. S. 147, 155 (1986)
(emphasis deleted and internal quotation marks omitted). In the
absence of a death penalty acquittal, the "clean slate" rule
recognized in
North Carolina v.
Pearce, 395 U. S. 711, 719-721
(1969), applies and no double jeopardy bar arises.
When, as in this case, the jury deadlocks in the penalty phase
of a capital trial, it does not "decide" that the prosecution has
failed to prove its case for the death penalty. Rather, the jury
makes no decision at all. Petitioner's jury did not
"agre[eJ
... that the prosecution ha[d] not proved its case."
Bullington, supra, at 443 (emphasis added). It did not make
any findings about the existence of the aggravating or mitigating
circumstances. See
Rumsey, supra, at 211 (where the trial
judge "entered findings denying the existence of each of the seven
statutory aggravating circumstances," the resulting "judgment,
based on findings sufficient to establish legal entitlement to the
life sentence, amounts to an acquittal on the merits and, as such,
bars any
118
retrial of the appropriateness of the death penalty"). In short,
the jury did not "acquit" petitioner of the death penalty under
Bullington and
Rumsey.
That Pennsylvania law mandates a life sentence when a capital
sentencing jury deadlocks does not, for the reasons given by the
Court,
ante, at 110, transform that life sentence into a
death penalty acquittal. Because petitioner was neither acquitted
nor convicted of the death penalty in his first trial, the Double
Jeopardy Clause was not offended by a retrial to determine whether
death was the appropriate punishment for his offenses. There is no
need to say more.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE BREYER join, dissenting.
This case concerns the events that "terminat[e] jeopardy" for
purposes of the Double Jeopardy Clause.
Richardson v.
United States, 468 U. S. 317, 325
(1984). The specific controversy before the Court involves the
entry of final judgment, as mandated by state law, after a jury
deadlock. The question presented is whether a final judgment so
entered qualifies as a jeopardy-terminating event. The Court
concludes it does not. I would hold that it does.
When a Pennsylvania capital jury deadlocks at the sentencing
stage of a proceeding, state law requires the trial court to enter
a judgment imposing a life sentence. See Pa. Stat. Ann., Tit. 42, §
9711(c)(1)(v) (Purdon Supp. 2002). Ordinarily, a judgment thus
imposed is final. The government may neither appeal the sentence
nor retry the sentencing question before a second jury. See Brief
for Petitioner 7; Tr. of Oral Arg. 26. The sentencing question can
be retried-if retrial is not barred by the Double Jeopardy
Clause-only if the defendant successfully appeals the underlying
conviction and is convicted again on retriaU
1 When a typical criminal jury is unable to agree on a verdict,
in contrast, the judge declares a mistrial and the prosecutor has
the immediate right to reprosecute the counts on which the jury
hung. See,
e. g.,
Rich-
119
The Court today holds that the state-mandated entry of a life
sentence after a jury deadlock, measured against the Double
Jeopardy Clause, does not block retrial of the life or death
question. The Court so rules because the life sentence, although
final under state law, see id., at 25-26, is not the equivalent of
"an acquittal on the merits,"
ante, at 107108 (quoting
Arizona v.
Rumsey, 467 U. S. 203, 211
(1984)). Our double jeopardy case law does indeed "attac[h]
particular significance to an acquittal,"
United States v.
Scott, 437 U.
S. 82, 91 (1978); that jurisprudence accords "absolute finality
to a jury's
verdict of acquittal[,] no matter how erroneous
its decision,"
Burks v.
United States, 437 U. S. 1, 16 (1978).
And, as the Court stresses, the hung jury in Sattazahn's sentencing
proceeding did not "acqui[t]" him "on the merits."
Ante, at
107 (internal quotation marks omitted). But these two undebatable
points are not inevitably dispositive of this case, for our
decisions recognize that jeopardy can terminate in circumstances
other than an acquittal. Cf.
Richardson, 468 U. S., at 325
("[T]he Double Jeopardy Clause by its terms applies only if there
has been some event,
such as an acquittal, which terminates
the original jeopardy." (Emphasis added.)).
In no prior case have we decided whether jeopardy is terminated
by the entry of a state-mandated sentence when the jury has
deadlocked on the sentencing question. As I see it, the question is
genuinely debatable, with tenable argument supporting each side.
Comprehending our double jeopardy decisions in light of the
underlying purposes of the Double Jeopardy Clause, I conclude that
jeopardy does terminate in such circumstances. I would hold, as
herein explained, that once the trial court entered a final
judgment of life for Sattazahn, the Double Jeopardy Clause barred
Pennsylvania from seeking the death penalty a second time.
ardson v. United States,
468 U. S. 317, 318, 325
(1984); United States v. Martin Linen Supply Co.,
430 U. S. 564, 570
(1977).
120
I
The standard way for a defendant to secure a final judgment in
her favor is to gain an acquittal.2 This case involves the atypical
situation in which a defendant prevails by final judgment
without an acquittal. Unusual as the situation is, our
double jeopardy jurisprudence recognizes its existence. In
Scott, the Court stated that the "primary purpose" of the
Double Jeopardy Clause is to "protect the integrity" of final
determinations of guilt or innocence. 437 U. S., at 92. We
acknowledged, however, that "this Court has also developed a body
of law guarding the separate but related interest of a defendant in
avoiding multiple prosecutions even where no final determination of
guilt or innocence has been made."
Ibid. "Such interests,"
we observed, "may be involved in two different situations: the
first, in which the trial judge declares a mistrial; the second, in
which the trial judge terminates the proceedings favorably to the
defendant on a basis not related to factual guilt or innocence."
Ibid.
The first category-mistrials-is instructive, although the case
at hand does not fit within that category. In deciding whether
reprosecution is permissible after a mistrial, "this Court has
balanced the valued right of a defendant to have his trial
completed by the particular tribunal summoned to sit in judgment on
him against the public interest in insuring
2 The Court has many times said that the Double Jeopardy Clause
protects the integrity of "final judgments." See,
e. g.,
Crist v.
Bretz, 437 U. S. 28, 33 (1978)
("A primary purpose" served by the Double Jeopardy Clause is "akin
to that served by the doctrines of
res judicata and
collateral estoppel-to preserve the finality of judgments.");
United States v.
Scott, 437 U. S. 82, 92 (1978) ("the
primary purpose of the Double Jeopardy Clause was to protect the
integrity of a final judgment"). In such declarations, the Court
appears to have used "final judgment" interchangeably with
"acquittal." See
Crist, 437 U. S., at 33 (referring to the
English commonlaw rule that "a defendant has been put in jeopardy
only when there has been a conviction or an acquittal-after a
complete trial");
Scott, 437 U. S., at 92 (equating the term
"final judgment" with a "final determination of guilt or
innocence").
121
that justice is meted out to offenders."
Ibid. (internal
quotation marks and citation omitted). Weighing these interests, we
have decided that mistrials declared on the motion of the
prosecution or
sua sponte by the court terminate jeopardy
unless stopping the proceedings is required by "manifest
necessity."
Id., at 93-94; see,
e. g., Downum v.
United States, 372 U. S. 734, 737-738
(1963). A hung jury, the Court has long recognized, meets the
"manifest necessity" criterion, i.
e., it justifies a trial
court's declaration of a mistrial and the defendant's subsequent
reprosecution.
Arizona v.
Washington, 434 U. S. 497, 509
(1978). Retrial is also permissible where "a
defendant
successfully seeks to avoid his trial prior to its conclusion by a
motion for mistrial,"
Scott, 437 U. S., at 93, unless the
motion is intentionally provoked by the government's actions, id.,
at 94. Ordinarily, "[s]uch a motion by the defendant is deemed to
be a deliberate election on his part to forgo his valued right to
have his guilt or innocence determined before the first trier of
fact."
Id., at 93.
The second category described in Scott-"termination of [a] trial
in [a defendant's] favor before any determination of factual guilt
or innocence," id., at 94-is distinguished from the first based on
the quality of finality a termination order imports. "When a trial
court declares a mistrial, it all but invariably contemplates that
the prosecutor will be permitted to proceed anew notwithstanding
the defendant's plea of double jeopardy."
Id., at 92. When a
motion to terminate is granted, in contrast, the trial court
"obviously contemplates that the proceedings will terminate then
and there in favor of the defendant."
Id., at 94. In
Scott, for example, the trial court granted the defendant's
motion to dismiss one count of the indictment, prior to its
submission to the jury, on the ground of preindictment delay. If
the prosecution had wanted to "reinstate the proceedings in the
face of such a ruling," it could not simply have refiled the
indictment; in-
122
stead, it would have had to "seek reversal of the decision of
the trial court" by pursuing an appeal.
Ibid.3
Sattazahn's case falls within
Scott's second
category.
After the jury deadlocked at the sentencing stage, no mistrial
was declared, for Pennsylvania law provided that the trial
proceedings would terminate "then and there" in Sattazahn's favor.
The government could not simply retry the sentencing issue at will.
The hung jury in Sattazahn's case did not "mak[e] ... completion"
of the first proceeding "impossible,"
Wade v.
Hunter,
336 U. S. 684,
689 (1949); instead, Pennsylvania law
required the judge to
bring that proceeding to a conclusion by entering a final judgment
imposing a life sentence, see Pa. Stat. Ann., Tit. 42, §
9711(c)(1)(v) (Purdon Supp. 2002).
Double jeopardy law with respect to
Scott's second
category is relatively undeveloped. As observed at the outset, see
supra, at 119, we have never before decided whether jeopardy
terminates upon the entry of a state-mandated final judgment
favorable to a defendant
after a jury deadlocks. We have,
however, addressed the termination of a trial
prior to
submission of the case to the jury.
Scott was such a case
and, as the Court underscores,
ante, at 114, that decision
denied double jeopardy protection. In allowing a second prosecution
in
Scott, however, the Court stressed that the defendant
"deliberately ch[ose] to seek termination of the proceedings
against him on a basis unrelated to factual guilt or innocence," i.
e., the prosecution's preindictment delay, 437 U. S., at
98-99: Scott "successfully undertook to persuade the trial court
not to submit the issue of guilt or innocence to the jury ...
empaneled to try him," id., at 99. Although
3 When this Court has considered dismissals of indictments that
contemplate the possibility of immediate reprosecution without an
appeal, it has analyzed them as mistrials. See
Lee v.
United States, 432 U. S. 23, 30 (1977)
(dismissal based on insufficient indictment treated as mistrial for
double jeopardy purposes because Government could simply file new
indictment without appealing dismissal).
123
holding that the Double Jeopardy Clause "does not relieve a
defendant from the consequences of his voluntary choice,"
ibid., the Court reiterated the underlying purpose of the
Clause: to prevent the State from making "repeated attempts to
convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and compelling him to live
in a continuing state of anxiety and insecurity,"
id., at 95
(quoting
Green v.
United States, 355 U. S. 184, 187
(1957)).
The ruling in
Scott placing the defendant in that case
outside the zone of double jeopardy protection, in sum, was tied to
the absence of a completed first trial episode and to the
defendant's choice to abort the initial trial proceedings. "[T]he
Government," we explained, "was quite willing to continue with its
production of evidence ... , but the defendant elected to seek
termination of the trial on grounds unrelated to guilt or
innocence." 437 U. S., at 96. "This is scarcely a picture of an
all-powerful state relentlessly pursuing a defendant who had either
been found not guilty or who had at least insisted on having the
issue of guilt submitted to the first trier of fact."
Ibid.
II
Scott, it is true, did not home in on a case like
Sattazahn's.
The Court's reasoning, nevertheless, lends credence to the view
that a trial-terminating judgment for life, not prompted by a
procedural move on the defendant's part, creates a legal
entitlement protected by the Double Jeopardy Clause. Cf.
Rumsey, 467 U. S., at 211 (judgment based on factual
findings sufficient to establish "legal entitlement" to a life
sentence bars retrial).
Scott recognized that defendants
have a double jeopardy interest in avoiding multiple prosecutions
even when there has been no determination of guilt or innocence,
and that this interest is implicated by preverdict judgments
terminating trials. 437 U. S., at 92. The interest in avoiding a
renewed prosecution following a final judg-
124
ment is surely engaged here. Sattazahn's life sentence had
significantly greater finality than the dismissal for preindictment
delay in
Scott, for under Pennsylvania law, as noted
earlier, see
supra, at 118, the government could not have
sought to retry the sentencing question even through an appeal.
Moreover-and discrete from the Court's analysis in
Scott-the perils against which the Double Jeopardy Clause
seeks to protect are plainly implicated by the prospect of a second
capital sentencing proceeding. A determination that defendants in
Sattazahn's position are subject to the "ordeal" of a second
full-blown life or death trial "compel[s] [them] to live in a
continuing state of anxiety and insecurity."
Green, 355 U.
S., at 187.4
Despite the attendant generation of anxiety and insecurity, we
have allowed retrial after hung jury mistrials in order to give the
State "one complete opportunity to convict those who have violated
its laws."
Washington, 434 U. S., at 509; see
Wade,
336 U. S., at 689 ("a defendant's valued right to have his trial
completed by a particular tribunal must in some instances be
subordinated to the public's interest in fair trials designed to
end in just judgments"). But here, the Commonwealth has already had
such an opportunity: The prosecution presented its evidence to the
jury, and after the jury deadlocked, final judgment was entered at
the direction of the state legislature itself. This was not an
instance in which "the Government was quite willing to continue
with its production of evidence," but was thwarted by a
defenseproffered motion.
Scott, 437 U. S., at 96.
4 The Court identifies policy reasons why a legislature might
prefer to provide for the entry of a judgment that could be
reopened should the defendant mount a successful appeal. See
ante, at 110, 115. It does not automatically follow,
however, that such a provisional judgment would be compatible with
the Double Jeopardy Clause. Cf.
infra, at 127 (urging that
the prospect of a second death penalty proceeding heightens double
jeopardy concerns).
125
We also sanctioned retrial in
Scott, even though that
case involved a final adjudication. But there, the defendant
voluntarily avoided subjecting himself to a determination of guilt
or innocence in the first proceeding; he did so by successfully
moving, prior to submission of the case to the jury, for dismissal
of the count in question because of preindictment delay.
Ibid.; see
Green, 355 U. S., at 188 (suggesting that
double jeopardy protection does not apply if defendant consents to
dismissal of his first jury). That was not the situation here:
Unlike Scott, Sattazahn did not successfully avoid having the
question of his guilt or innocence submitted to the first jury. The
"issue of guilt" in his case indeed was "submitted to the first
trier of fact."
Scott, 437 U. S., at 96. Sattazahn was thus
"forced to run the gantlet once" on death.
Green, 355 U. S.,
at 190. Nor did Sattazahn himself bring about termination of his
first trial.5 Once the jury deadlocked, state law directly mandated
that the trial end. In
5 The governing statute provides that "the court may, in its
discretion, discharge the jury if it is of the opinion that further
deliberation will not result in a unanimous agreement as to the
sentence, in which case the court shall sentence the defendant to
life imprisonment." Pa. Stat. Ann., Tit. 42, § 9711(c)(I)(v)
(Purdon Supp. 2002). In Sattazahn's case, after the jury had
deliberated for about 3Y2 hours, the judge announced that he had
"received a communication from the foreperson indicating this jury
is hopelessly deadlocked." App.22. He then stated: "I will bring
the jury down and inquire of the foreperson and the jury whether or
not any further deliberations would be productive."
Ibid.
Only at that point did Sattazahn move "that the jury be discharged"
and that a life sentence be entered under § 9711(c)(I)(v).
Ibid. The judge did not grant Sattazahn's motion. Instead,
he conducted an inquiry to determine whether the jury was
"hopelessly deadlocked"; he then found that it was, discharged the
jury, and announced that "by virtue of the law" he would enter a
life sentence.
Id., at 23-24. The judge, at that stage,
never referred back to Sattazahn's motion. As I read this record,
the judge's decision to conduct an inquiry, discharge the jury, and
enter a life sentence was prompted not by a defensive motion, but
simply by the jury's announcement that it was deadlocked, just as
the statute instructs.
126
short, the reasons we thought double jeopardy protection did not
attach in
Scott are absent here.6
I recognize that this is a novel and close question: Sattazahn
was not "acquitted" of the death penalty, but his case was fully
tried and the court, on its own motion, entered a final judgment-a
life sentence-terminating the trial proceedings. I would decide the
double jeopardy issue in Sattazahn's favor, for the reasons herein
stated, and giving weight to two ultimate considerations. First,
the Court's holding confronts defendants with a perilous choice,
one we have previously declined to impose in other circumstances.
See
Green, 355 U. S., at 193-194. Under the Court's
decision, if a defendant sentenced to life after a jury deadlock
chooses to appeal her underlying conviction, she faces the
possibility of death if she is successful on appeal but convicted
on retrial. If, on the other hand, the defendant loses her appeal,
or chooses to forgo an appeal, the final judgment for life stands.
In other words, a defendant in Sattazahn's position must relinquish
either her right to file a potentially meritorious appeal, or her
state-granted entitlement to avoid the death penalty.
6We have also held that the Double Jeopardy Clause does not bar
imposition of a greater sentence on retrial if a defendant
successfully appeals a conviction. See,
e. g., North
Carolina v.
Pearce, 395 U. S. 711 (1969);
United States v.
DiFrancesco, 449 U. S. 117 (1980).
"[T]he basic design of the double jeopardy provision ... as a bar
against repeated attempts to convict, with consequent subjection of
the defendant to embarrassment, expense, anxiety, and insecurity,"
has "no significant application to the prosecution's ... right to
review a sentence."
Id., at 136. This Court has determined,
however, that for purposes of the Double Jeopardy Clause, capital
sentencing proceedings involving proof of one or more aggravating
factors are to be treated as trials of separate
offenses,
not mere sentencing proceedings. See
ante, at 106-109;
ante, at 110-112 (opinion of SCALIA, J.);
Ring v.
Arizona, 536
U. S. 584 (2002);
Bullington v.
Missouri,
451 U. S. 430
(1981). Our decisions permitting resentencing after appeal of
noncapital convictions thus do not address the question presented
in this case.
127
We have previously declined to interpret the Double Jeopardy
Clause in a manner that puts defendants in this bind. In
Green, we rejected the argument that appealing a
second-degree murder conviction prolonged jeopardy on a related
first-degree murder charge. We noted that a ruling on this question
in favor of the prosecutor would require defendants to "barter
[their] constitutional protection against a second prosecution for
an offense punishable by death as the price of a successful appeal
from an erroneous conviction of another offense."
Id., at
193. "The law," we concluded, "should not ... place [defendants] in
such an incredible dilemma."
Ibid. Although Sattazahn was
required to barter a state-law entitlement to life against his
right to appeal, rather than a constitutional protection, I
nevertheless believe the considerations advanced in
Green
should inform our decision here.
Second, the punishment Sattazahn again faced on retrial was
death, a penalty "unique in both its severity and its finality."
Monge v.
California, 524 U. S. 721, 732 (1998)
(internal quotation marks omitted). These qualities heighten
Sattazahn's double jeopardy interest in avoiding a second
prosecution. The "hazards of [a second] trial and possible
conviction,"
Green, 355 U. S., at 187, the "continuing state
of anxiety and insecurity" to which retrial subjects a defendant,
ibid., and the "financial" as well as the "emotional burden"
of a second trial,
Washington, 434 U. S., at 503-504, are
all exacerbated when the subsequent proceeding may terminate in
death. Death, moreover, makes the "dilemma" a defendant faces when
she decides whether to appeal all the more "incredible."
Green, 355 U. S., at 193. As our elaboration in
Gregg
v.
Georgia, 428 U. S. 153, 188 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.), and later
cases demonstrates, death is indeed a penalty "different" from all
others.
128
For the reasons stated, I would hold that jeopardy terminated as
to Sattazahn's sentence after the judge entered a final judgment
for life. I would therefore reverse the judgment of the Supreme
Court of Pennsylvania.
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