North Carolina v. Pearce/Concurrence Harlan

Mr. Justice HARLAN, concurring in part and dissenting in part.

Were these cases to be judged entirely within the traditional confines of the Due Process Clause of the Fourteenth Amendment, I should, but not without some difficulty, find myself in substantial agreement with the result reached by the Court. However, the Court today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, has held, over my dissent, that the Double Jeopardy Clause of the Fifth Amendment is made applicable to the States by the Fourteenth Amendment Due Process Clause. While my usual practice is to adhere until the end of Term to views I have expressed in dissent during the Term, I believe I should not proceed in these important cases as if Benton had turned out otherwise.

Given Benton, it is my view that the decision of this Court in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), from which I dissented at the time, points strongly to the conclusion also reached by my Brother DOUGLAS, 395 U.S. at 726, 89 S.Ct. at 2089, that the Double Jeopardy Clause of the Fifth Amendment governs both issues presently decided by the Court. Accordingly, I join in Part I of the Court's opinion, and concur in the result reached in Part II, except in one minor respect.

Green v. United States, supra, held in effect that a defendant who is convicted of a lesser offense included in that charged in the original indictment, and who thereafter secures reversal, may be retried only for the lesser included offense. Mr. Justice Frankfurter observed, in a dissent which I joined, that:

'As a practical matter, and on any basis of human values, it     is scarcely possible to distinguish a case in which the      defendant is convicted of a greater offense from one in which      he is convicted of an offense that has the same name as that      of which he was previously convicted but carries a      significantly (increased) *  *  * punishment *  *  * .' Id., 355      U.S., at 213, 78 S.Ct., at 237.

Further reflection a decade later has not changed my view that the two situations cannot be meaningfully distinguished.

Every consideration enunciated by the Court in support of the decision in Green applies with equal force to the situation at bar. In each instance, the defendant was once subjected to the risk of receiving a maximum punishment, but it was determined by legal process that he should receive only a specified punishment less than the maximum. See id., 355 U.S., at 190, 78 S.Ct., at 225. And the concept or fiction of an 'implicit acquittal' of the greater offense, ibid., applies equally to the greater sentence: in each case it was determined at the former trial that the defendant or his offense was of a certain limited degree of 'badness' or gravity only, and therefore merited only a certain limited punishment. Most significantly, perhaps, in each case contrary rule would place the defendant considering whether to appeal his conviction in the same 'incredible dilemma' and confront him with the same 'desperate' choice. Id., at 193, 78 S.Ct., at 227. His decision whether or not to appeal would be burdened by the consideration that success, followed by retrial and conviction, might place him in a far worse position than if he remained silent and suffered what seemed to him an unjust punishment. In terms of Green, that the imposition of a more severe sentence on retrial is a matter of pure chance, rather than the result of purposeful retaliation for having taken an appeal, renders the choice no less 'desperate.'

If, as a matter of policy and practicality, the imposition of an increased sentence on retrial has the same consequences whether effected in the guise of an increase in the degree of offense or an augmentation of punishment, what other factors render one route forbidden and the other permissible under the Double Jeopardy Clause? It cannot be that the provision does not comprehend 'sentences'-as distinguished from 'offenses' for it has long been established that once a prisoner commences service of sentence, the Clause prevents a court from vacating the sentence and then imposing a greater one. See United States v. Benz, 282 U.S. 304, 306-307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Ex parte Lange, 18 Wall. 163, 168, 173, 21 L.Ed. 872 (1874).

The Court does not suggest otherwise, but in its view, apparently, when the conviction itself and not merely the consequent sentence has been set aside, or when either has been set aside at the defendant's behest, the 'slate has been wiped clean,' ante, at 721, and the Double Jeopardy Clause presents no bar to the imposition of a sentence greater than that originally imposed. In support of this proposition, the Court relies chiefly on two cases, Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), and United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). I do not believe that either of these cases provides an adequate basis for the Court's seemingly incongruous conclusion.

Stroud v. United States, supra, held that a defendant who received a life sentence for first-degree murder could,u pon securing a reversal of the conviction, be retried for first-degree murder and sentenced to death. However, the opinion does not explicitly advert to the question whether the Double Jeopardy Clause bars the imposition of an increased punishment, and an examination of the briefs in that case confirms the doubt expressed by the Court of Appeals in Patton v. North Carolina, 4 Cir., 381 F.2d 636, 644 (1967), whether this question was squarely presented to the Court. Assuming that Stroud stood for the proposition which the majority attributes to it, that decision simply cannot be squared with the subsequent decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See id., at 213, 78 S.Ct., at 237 (dissenting opinion); People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963).

The Court does not rest solely on this ambiguous and doubtful precedent, however. Its main point seems to be that to limit the punishment on retrial to that imposed at the former trial 'would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball,' 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and its progeny. Ante, at 721.

Ball held, simply, that a defendant who succeeds in getting his first conviction set aside may thereafter be retried for the same offense of which he was formerly convicted. This is, indeed, a fundamental doctrine in our criminal jurisprudence, and I would be the last to undermine it. But Ball does not speak to the question of what punishment may be imposed on retrial. I entirely fail to understand the Court's suggestion, unless it assumes that Ball must stand or fall on the question-begging notion that, to quote the majority today, 'the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean.' Ante, at 721.

In relying on this conceptual fiction, the majority forgets that Green v. United States, supra, prohibits the imposition of an increased punishment on retrial precisely because convictions are usually set aside only at the defendant's behest, and not in spite of that fact. 355 U.S., at 193-194, 78 S.Ct., at 227, 2 L.Ed.2d 199: supra, at 746: the defendant's choice to appeal an erroneous conviction is protected by the rule that he may not again be placed in jeopardy of suffering the greater punishment not imposed at the first trial. Moreover, in its exaltation of form over substance and policy, the Court misconceives, I think, the essential principle of Ball itself:

'While different theories have been advanced to support the     permissibility of retrial, of greater importance than the      conceptual abstractions employed to explain the Ball      principle are the implications of that principle for the      sound administration of justice. Corresponding to the right     of an accused to be given a fair trial is the societal      interest in punishing one whose guilt is clear after he has      obtained such a trial. It would be a high price indeed for     society to pay were every accused granted immunity from      punishment because of any defect sufficient to constitute      reversible error in the proceedings leading to conviction.'      United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587,     1589, 12 L.Ed.2d 448 (1964).

To be sure, this societal interest is compromised to a degree if the second judge is forbidden to impose a greater punishment on retrial than was meted out at the first trial. For example, new facts may develop between the first and second trial which would, as an initial matter, be considered in aggravation of sentence. By the same token, however, the prosecutor who was able to prove only second-degree murder at the former trial might improve his case in the interim and acquire sufficient evidence to prove murder in the first degree. In either instance, if one views the second trial in a vacuum, the defendant has received less punishment than is his due. But in both cases, the compromise is designed to protect other societal interests, and it is, after Green, a compromise compelled by the Double Jeopardy Clause.

I therefore conclude that, consistent with the Fifth Amendment, a defendant who has once been convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed. Because the Double Jeopardy Clause has now been held applicable to the States, Benton v. Maryland, supra, I would affirm the judgment of the Court of Appeals in No. 418, and vacate and remand in No. 413, so that respondent Pearce may finish serving his first, valid sentence. See n. 1, supra.