Amicus Curiae Brief — Monge v. California

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LY | MAR 26 OS

No. 97-6146 .

IN THE

Supreme Court of the United States

| OCTOBER TERM, 1997

ANGEL J. MONGE,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the California Supreme Court

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BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

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KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

BEST AVAILABLE COPY”

QUESTION PRESENTED

Should Bullington v. Missouri be overruled?

(1)

TABLE OF CONTENTS

The present case is an appropriate vehicle to examine

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II

Stare decisis does not prevent Bullington from being

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A. The limits of stare decisis ........... ae

B. Bullington as precedent ...............0055

1. Contrary to precedent .............005:

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Bullington should be overruled ................005-

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3. Contrary to principles ...................

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C. Punishing good deeds ................0005-

Conclusion

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TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pefia, 515 U. S. 200,

132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995) .......... 15

Alabama v. Smith, 490 U. S. 794, 104 L. Ed. 2d 865,

FF eee 7

Arizona v. Rumsey, 467 U. S. 203, 81 L. Ed. 2d 164,

Pe eee 4, 16, 17, 24

Bailey v. United States, 516 U. S. 137, 133 L. Ed. 2d 472,

St, Ds caceéuesannessesenecinces 25

Briggs v. Procunier, 764 F. 2d 368 (CAS 1985) ..... 24, 27

Bullington v. Missouri, 451 U. S. 430, 68 L. Ed. 2d 270,

101 S. Ct. 1852 (1981) ....... 3, 4, 7, 8, 10-13, 16, 21-26

Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1,

es eh SE CE cc cccccusecsocenes 15, 17, 19, 27

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,

se © Ree Re} 5

Carpenter v. Chapleau, 72 F. 3d 1269 (CA6 1996) ... 25,27

Chaffin v. Stynchcombe, 412 U.S. 17, 36 L. Ed. 2d 714,

SP a ED 6s.s teks ccsepcacds 7, 8, 11, 21, 23

Durosko v. Lewis, 882 F. 2d 357 (CA9 1989)....... 24, 27

Ex parte Lange, 18 Wall. (85 U. S.) 163, 21 L. Ed. 872

DE ch avcknusbanteéeedbavenueeuwnes tues 4,8, 19

Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717 (1880) ... 20

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

ee eeu ede sh bieuses —e

vi

Green v. United States, 355 U. S. 184, 2 L. Ed. 2d 199,

pF ee eee 22, 23

Helvering v. Hallock, 309 U. S. 106, 84 L. Ed. 604,

Se ee ED sc cuscsceduaconbantpeneenas 15, 29

Hertz v. Woodman, 218 U. S. 205, 54 L. Ed. 1001,

ee ek ere ee 5

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

en, Cn do. cv edna eenhnen eae eed 28, 29

Hudson v. United States, 522 U.S. _, 139 L. Ed. 2d 450,

Li fet |. 9, 10, 16, 17, 24

In re Oliver, 333 U. S. 257, 92 L. Ed. 682, 68 S. Ct. 499

i). ivi tes he eccerid ae naehera a's ss 9

Kepner v. United States, 195 U. S. 100, 49 L. Ed. 114,

Gs CE ones cecebdd uheseeestbeoes ens 13

Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937,

ee ee Es cnn cnc ceduckdenndticasdaeees 6

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

ee ns J dccced pees deeeeéeeeudeces 3

Morgan v. Illinois, 504 U. S. 719, 119 L. Ed. 2d 492,

Ee see 3

Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1,

Co 3

Nelson v. Lockhart, 828 F. 2d 446 (CA8 1987) ........ 27

North Carolina v. Pearce, 395 U. S. 711, 23 L. Ed. 2d 656,

Se GED 9 c00secdeetesees 7, 10, 11, 20, 21

Patterson v. McLean Credit Union, 491 U. S. 164,

105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) ...... 5, 6, 18

Vii

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

el a Oe « on sadacdessbecedencsecsuss 5

People v. Frierson, 25 Cal. 3d 142, 158 Cal.Rptr. 281,

es Ae Oe COED vvcdvccscecetevasocec« wires 13

People v. Levin, 623 N. E. 2d 317 (Ill. 1993) ....... 24, 27

People v. Monge, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853,

Fee Pode PE cdoncedeccescbuccessvaee 2, 26

People v. Quinata, 634 P. 2d 413 (Colo. 1981) ......... 27

People v. Sailor, 480 N. E. 2d 701 (N.Y. 1985) .. 24,25, 27

Planned Parenthood v. Casey, 505 U. S. 833,

120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) ........ 6, 15

Poland v. Arizona, 476 U.S. 147, 90 L. Ed. 2d 123,

106 S. Ct. 1749 (1986) ............ 4, 14, 16, 17,21, 25

Pulley v. Harris, 465 U. S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871

ee

Sanabria v. United States, 437 U. S. 54, 57 L. Ed. 2d 43,

ED nck cbke os camedeeeendes wie

Sandin v. Conner, 515 U. S. 472, 132 L. Ed. 2d 418,

Se PEED ox ove cwccteedessececs .. 28,29

Seminole Tribe of Florida v. Florida, 517 U. S. 44,

134 L. Ed. 2d 252, 116 S. Ct. 1114(1996) ........ 5,24

State v. Cobb, 875 S. W. 2d 533 (Mo. 1994)........... 27

State v. Hennings, 670 P. 2d 256 (Wash. 1983) ........ 27

Stroud v. United States, 251 U.S. 15, 64 L. Ed. 103,

Gy a ED cveccccecccces 4, 7,8, 10, 13, 21, 29

Swisher v. Brady, 438 U. S. 204, 57 L. Ed. 2d 705,

CC ccctindaceasesmeceecenses 28

Viil

United States v. Bryan, 339 U. S. 323, 94 L. Ed. 884,

Se BD 64. odnewnndsnti china 6

United States v. DiFrancesco, 449 U.S. 117,

66 L. Ed. 2d 328, 101 S. Ct. 426

DL Me voadecedun 7, 11-13, 15, 18, 19, 21, 23, 28, 29

United States v. Dixon, 509 U. S. 688, 125 L. Ed. 2d 556,

113 S. Ct. 2849 (1993) .......... 8, 9, 16, 17, 18, 21, 24

United States v. Scott, 437 U. S. 82, 57 L. Ed. 2d 65,

Se CN ons winded eonninminnd'sdieteen 6, 15

United States v. Tateo, 377 U. S. 463, 12 L. Ed. 2d 448,

Co 19, 27

United States v. Wilson, 420 U. S. 332, 43 L. Ed. 2d 232,

ay ee as Citak sve dddenennes 12, 18, 19

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

Sas Gi HT ET no ukecdssvateuionnest 3, 25, 26

Wilmer v. Johnson, 30 F. 3d 451 (CA3 1994).......... 27

Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d 935,

IE db 0ccdehvudebd ewes vseetes 28

Woodall v. United States, 72 F. 3d 77 (CA8 1995)...... 27

United States Constitution

IED... . cwccccccccevectovececeee 4,19

State Statutes

Cal. Health & Safety Code § 11359 (West 1991) ........ 2

Cal. Health & Safety Code § 11360(a) (West 1991) ...... 2

Cal. Health & Safety Code § 11361(a) (West 1991) ...... 2

Cal. Penal Code § 1170.12 (West Supp. 1998) .......... 2

Cal. Penal Code § 190(a) (West 1988)................ 26

Cal. Penal Code § 245(a)(1) (West 1988) .............. 2

Cal. Penal Code § 489(b) (West Supp. 1998) .......... 25

Cal. Penal Code § 667.5(b) (West Supp. 1998) ...... 25, 26

Cal. Penal Code § 667 (West Supp. 1998)........ 2, 25, 26

Treatise

4 W. Blackstone, Commentaries (Ist ed. 1769)...... 18, 22

Miscellaneous

Bennett, Double Jeopardy and Capital Sentencing:

The Trial and Error of the Trial Metaphor,

ID NBL. OV. GSU cece ctivccericsivccves 17

Douglas, Stare Decisis, 49 Colum. L. Rev. 735 (1949)... 15

Easterbrook, Ways of Criticizing the Court,

96 Harv. L. Tigw. SUZ GRRE). 0c ccc ccc crew cvens 14

J. Sigler, Double Jeopardy (1969) ............. 18, 19, 22

Monaghan, Taking Supreme Court Opinions Seriously,

PE Bs EG EE hdc cd beceebiserss65 bs oss 14

Rehnquist, The Notion of a Living Constitution,

Fe ee ee CUED verte cvenenccssisevens 6

The Federalist No. 78 (A. Hamilton) (Rossiter ed. 1961) .. 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ANGEL J. MONGE,

Petitioner,

WS.

THE STATE OF CALIFORNIA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the due process protection of the

accused into balance with the rights of the victim and of society to

rapid, efficient and reliable determination of guilt and swift

execution of punishment.

Swift and sure punishment is an essential feature of any

worthwhile criminal justice system. Bullington v. Missouri, by

needlessly importing double jeopardy concepts into sentencing

hearings, makes the sentence process needlessly complex and too

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

prone to giving windfalls to guilty defendants. This undermining

of the criminal justice system is contrary to the interests CJLF was

formed to protect.

SUMMARY OF FACTS AND CASE

Defendant was charged in Los Angeles County Superior Court

with using a minor to sell marijuana, Cal. Health & Safety Code

§ 11361(a) (West 1991), sale or transportation of marijuana,

§ 11360(a), and possession of marijuana for sale, § 11359. People

v. Monge, 16 Cal. 4th 826, 830, 941 P. 2d 1121, 1123 (1997). The

People also alleged that defendant had a prior serious felony

conviction, Cal. Penal Code § 245(a)(1) (West 1988), assault with

a deadly weapon, under California’s “Three Strikes” law,

§§ 667(b)-(i), 1170.12(a)-(d) (West Supp. 1998). Monge, 16

Cal. 4th, at 830, 941 P. 2d, at 1123-1124. Defendant waived his

right to a jury trial on the prior conviction and prior prison term

allegations, and the trial court granted his motion to bifurcate the

determination of those allegations. A jury found defendant guilty

of the underlying offenses. The trial court tried the prior serious

felony allegation, finding that defendant had previously been

convicted of a serious felony. Jd., at 831, 941 P. 2d, at 1124.

The Court of Appeal affirmed the convictions but reversed the

prior serious felony allegation, finding insufficient evidence to

establish that defendant acted personally. Jbid. The appellate

court further held that double jeopardy barred retrial of the prior

serious felony allegation. The California Supreme Court reversed

the double jeopardy finding. See id., at 845, 941 P. 2d, at 1134

(plurality); id., at 847, 941 P. 2d, at 1134 (Brown, J., concurring).

SUMMARY OF ARGUMENT

Stare decisis does not preclude a re-examination of Bullington

v. Missouri. That case contradicts prior precedents without

overruling them. This creates confusion and disrespect for

precedent, contrary to the interests stare decisis seeks to protect.

Because Bullington is a constitutional decision, it must be

afforded less protection under stare decisis. As Bullington has

also been compromised by Poland v. Arizona, it should be re-

examined.

Bullington should be overruled. It is contrary to both the

history of the Double Jeopardy Clause and this Court’s interpreta-

tion of it. By focusing on the procedure involved rather than the

hearing’s consequences to defendant, Bullington is contrary to the

principles of the Double Jeopardy Clause. Finally, as it punishes

states for expanding protections to defendants, Bullington

improperly discourages state experimentation in criminal proce-

dure.

ARGUMENT

I. The present case is an appropriate vehicle to examine

Bullington’s validity.

In Bullington v. Missouri, 451 U. S. 430 (1981), this Court

created an unprecedented, open-ended break with its Double

Jeopardy Clause jurisprudence. Bullington is an improper

expansion of the defendant’s Double Jeopardy rights which does

not deserve the protection of stare decisis, see part Il, post, and

should be overruled. See part III, post.

This Court should not protect Bullington by creating a “death

is different” shield around the decision. The few instances where

this Court discriminates between capital and noncapital cases have

come under the Eighth Amendment. See, e.g., Murray v.

Giarratano, 492 U. S. 1, 8-9 (1989). The problems with this

Court’s “annually improvised Eighth Amendment, ‘death is

different’ jurisprudence,” Morgan v. Illinois, 504 U.S. 719, 751

(1992) (Scalia, J., dissenting), are considerable. See, e.g., Walton

v. Arizona, 497 U. S. 639, 661-669 (1990) (Scalia, J., concurring

in part and concurring in the judgment) (describing results of

inconsistency between the requirements of the Furman v.

Georgia, 408 U. S. 238 (1972) (per curiam) and Lockett v. Ohio,

438 U. S. 586 (1978) lines of cases). They should not be imported

into the rest of the Constitution.

If capital cases are to be treated differently under the Constitu-

tion, the difference should remain within the Eighth Amendment.

Its text implicitly distinguishes between types of punishment—the

impermissible “cruel and unusual” punishments and the constitu-

tional rest. The Double Jeopardy Clause makes no such distinc-

tion. It indiscriminately proscribes making any “person be subject

for the same offense to be twice put in jeopardy of life or limb

.” U.S. Const., Amdt. 5.2 In Stroud v. United States, 251

U.S. 15 (1919), this Court declined to distinguish for the purpose

of double jeopardy between a life sentence imposed at the defen-

dant’s first trial and the death sentence at his second. See id., at

18. Stroud remains good law.’

Bullington did not turn on any “death is different” argument,

instead relying primarily upon a “hallmarks of the trial on guilt or

innocence” standard. See 451 U. S., at 439. The one extension of

Bullington invoked a similar indiscriminate standard. Arizona v.

Rumsey, 467 U. S. 203, 209 (1984) (extending Bullington to

Arizona capital procedures “that make [the sentencing proceeding]

resemble a trial”). Any attempt to shield Bullington through the

death penalty is a feeble, post hoc rationalization. Bullington

should stand or fall on its own merits. As amicus will demon-

strate, Bullington’s meager merits cannot support its repudiation

of precedent or destructive effects.

Il. Stare decisis does not prevent Bullington

from being overturned.

In Arizona v. Rumsey, 467 U. S. 203, 212 (1984), this Court

declined to overrule Bullington v. Missouri, 451 U.S. 430 (1981),

a case it had “decided only three years ago.” Amicus submits that

it is now time for a re-examination of Bullington. The perspective

of time, this Court’s retreat from Bullington two years later in

Poland vy. Arizona, 476 U. S. 147 (1986), and Bullington’s

2. Although read literally, the clause would not apply to imprisonment, double

jeopardy has always been understood to apply to any criminal sanction. See Ex

parte Lange, 18 Wall. (85 U. S.) 163, 170 (1874).

3. Bullington did not overrule Stroud, but instead distinguished it because the

sentencing procedure employed in Stroud was less sophisticated than the one

before the Bullington Court. See 451 U. S. , at 439, n. 11. This distinction is

untenable. See post, at 8.

possible spread outside the death penalty provide ample reasons

for its re-examination.

A. The Limits of Stare Decisis.

While stare decisis is an important doctrine serving a useful

social policy, it does not have the same force as a statute or the

Constitution. The judiciary’s role in our society is as an inter-

preter of laws. See The Federalist No. 78, at 467 (A. Hamilton)

(Rossiter ed. 1961). Therefore, stare decisis, while respected,

cannot deter this or any other court from its ultimate duty of

interpreting the law. Stare decisis is the servant, not the master,

of the law.

This Court has recognized that the doctrine does not have the

force of a rule of law and may be overridden when appropriate.

“Whether it [stare decisis] shall be followed or departed from is

a question entirely within the discretion Of the court ....” Hertz

v. Woodman, 218 U.S. 205, 212 (1910). While it will be followed

in most cases, this is only because usually “it is more important

that the applicable rule of law be settled than that it be settled

right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406

(1932) (Brandeis, J., dissenting). Therefore, this Court has

“treated stare decisis as a ‘principle of policy,’ Helvering v.

Hallock, 309 U. S. 106, 119 (1940), and not as an ‘inexorable

command.’ ” Seminole Tribe of Florida v. Florida, 517 U. S. 44,

63 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 828

(1991)).

Perhaps the most important factor in limiting stare decisis is

the ability of other bodies to overturn this Court’s decisions. This

Court is particularly reluctant to overturn its own statutory

interpretations, because Congress “remains free to alter what [this

Court has] done.” Patterson v. McLean Credit Union, 491 U. S.

164, 172-173 (1989).

Constitutional cases are another matter. Because “ ‘correction

through legislative action is practically impossible,’ ” constitu-

tional cases are more prone to re-examination than statutory cases.

Payne v. Tennessee, 501 U. S. 808, 828 (1991) (quoting Burnet,

supra, 285 U. S., at 407 (Brandeis, J., dissenting)); cf. Patterson,

supra, 491 U. S., at 172-173. Given the necessary tension

between our democratic ideals and judicial review under the

Constitution, see Rehnquist, The Notion of a Living Constitution,

54 Tex. L. Rev. 693, 695-696 (1976), this Court must be ready to

re-examine its constitutional decisions in order to maintain the

democratic nature of our society.

Refusing to re-examine an incorrect opinion that the public

cannot overturn is corrosive to this Court’s public respect. Thus

the decision to uphold the incorrectly decided line of cases under

Lochner v. New York, 198 U. S. 45 (1905) until 1937 helped to

damage this Court as a public institution. See Planned Parent-

hood v. Casey, 505 U. S. 833, 861-862 (1992) (lead opinion). “Of

course, it is embarrassing to confess a blunder; it may prove even

more embarrassing to adhere to it.” United States v. Bryan, 339

U. S. 323, 346 (1950) (Jackson, J., concurring).

This Court is also more willing to re-examine decisions that

have developed contradictions over time. Thus, this Court will

not allow stare decisis to preserve inconsistent or difficult to

administer decisions. See Patterson, supra, 491 U. S., at 173.

Similarly, if the conditions that motivated a decision change, then

there is good reason to overrule the prior decision. See Casey, 505

U. S., at 855 (lead opinion).

The fact that stare decisis is not a “mechanical rule” is

demonstrated by the hierarchy within the doctrine. While some

decisions are virtually etched in stone, others warrant more

flexibility. For those cases less worthy of stare decisis, “ ‘the

process of trial and error, so fruitful in the physical sciences, is

appropriate also in the judicial function.’ ” United States v. Scott,

437 U. S. 82, 101 (1978) (quoting Burnet, supra, 285 U. S., at 408

(Brandeis, J., dissenting).

B. Bullington as Precedent.

When deciding whether stare decisis should preserve a

decision from re-examination, this Court “is customarily informed

by a series of prudential and pragmatic considerations designed to

test the consistency of overruling a prior decision with the ideal of

the rule of law, and to gauge the respective costs of reaffirming

and overruling a prior case.” Planned Parenthood v. Casey, 505

U. S. 833, 854 (1992) (lead opinion). This involves a look into the

type of decision involved, the reliance interest it invokes, and what

impact overruling the decision would have on the public’s

perception of the rule of law. See part I A, supra. In light of these

factors, Bullington v. Missouri, 451 U. S. 430 (1981) invokes

minimal protection from stare decisis.

1. Contrary to precedent.

The strongest argument against Bullington is Bullington’s own

treatment of precedent. The Bullington decision cannot be

with this Court’s previous decisions on the relationship

between the Double Jeopardy Clause and sentencing. Decisions

that do not respect precedent should not be preserved simply as a

matter of stare decisis. If a decision improperly overrules or

distinguishes a set of precedents, stare decisis must not prevent a

return to the earlier, correct decisions.

The Bullington Court understood that there was tension

between its decision and prior case law. It framed the issue as

whether Stroud v. United States, 251 U. S. 15 (1919) applied to a

modern capital sentencing system. See Bullington, supra, 451

U. S., at 432. The Court found that imposing double jeopardy

protections on modern capital sentencing schemes did not conflict

with Stroud or any other precedents. The earlier decisions, which

refused to apply double jeopardy to sentences, dealt with sentenc-

ing proceedings that were less complicated and thus less trial-like

than the Missouri death sentence procedure in Bullington. See id.,

at 438-441. This distinction allowed the Bullington Court to

impose double jeopardy protections on Missouri’s capital sentenc-

ing system without formally having to overrule any precedents.

See id., at 446.

Bullington distinguished four precedents, United States v.

DiFrancesco, 449 U. S. 117 (1980), Chaffin v. Stynchcombe, 412

U. S. 17 (1973), North Carolina v. Pearce, 395 U.S. 711 (1969),*

and Stroud v. United States, supra. Each of these cases is at least

substantially compromised by the Bullington decision. Although

Bullington claimed that it did not overrule these decisions, the

effect of Bullington was to make these cases shadows of their

former selves.

4. The companion case to Pearce, Simpson v. Rice, was overruled on other

grounds in Alabama v. Smith, 490 U. S. 794, 802-803 (1989).

The first case distinguished, Stroud, provides perhaps the

starkest conflict between Bullington and earlier precedent. Robert

Stroud, the Birdman of Alcatraz,’ was convicted of first-degree

murder for killing a guard at Leavenworth prison and sentenced to

death. His conviction was reversed, he was retried and again

convicted of first-degree murder, but this time only sentenced to

life. This conviction was also reversed and at his second retrial

Stroud was again found guilty of first-degree murder and sen-

tenced to death. Stroud, 251 U. S., at 16-17. Stroud

his last death sentence as being barred under double jeopardy by

the life sentence imposed after the first retrial. /d., at 17.

The Stroud Court held that sentencing was irrelevant to the

Double Jeopardy Clause. “The fact that the jury may thus mitigate

the punishment to imprisonment for life did not render the

conviction less than one for first degree murder.” /Jd., at 18. The

Stroud Court understood that jeopardy attached to acquittals from

guilt, not sentences.° “The protection afforded by the Constitution

is against a second trial for the same offense.” Ibid. (emphasis

added).

Bullington’ s attempt to distinguish Stroud is unsuccessful. It

is true that Stroud and Bullington dealt with different sentencing

procedures. Stroud involved a relatively uncomplicated system

where the jury was simply asked whether defendant should not be

given a death sentence, see Bullington, supra, 451 U. S., at 439,

n. 11, while Bullington dealt with one of the death penalty

proceedings that evolved after Furman v. Georgia, 408 U. S. 238

(1972). But this difference is irrelevant for the purpose of double

jeopardy.

Double jeopardy is not imposed because a proceeding is

relatively complicated, but because the proceeding involves the

most important decision the law can make, whether a person is

guilty of a crime. This is demonstrated in United States v. Dixon,

5. See Chaffin, supra, 412 U. S., at 23.

6. Double jeopardy does place one limit on sentences. It prevents a person from

being punished twice for the same crime. See Ex parte Lange, 18 Wall. (85

U. S.) 163, 176 (1874). Neither Bullington nor the present case involves this

type of multiple punishment.

509 U. S. 688 (1993), where this Court held that the Double

Jeopardy Clause applied to nonsummary criminal contempt pro-

ceedings. It did so not because of how the proceedings were

conducted, but because of what was at stake at the contempt

proceedings. “It is well established that criminal contempt, at

least the sort enforced through nonsummary proceedings, is ‘a

crime in the ordinary sense.’ ” Id., at 696 (emphasis added)

(quoting Bloom v. Illinois, 391 U.S. 194, 201 (1968)). As other

constitutional protections applied to nonsummary contempt

proceedings “just as they do in other criminal prosecutions,” there

was no reason not to apply the Double Jeopardy Clause. /bid.

In using the trial-like nature of Missouri’s death sentence

procedure to impose double jeopardy protections, Bullington

placed the cart before the horse. Whether a proceeding is like a

matters is what is at stake. Thus in Jn re Oliver, 333 U. S. 257

(1948), this Court held that defendant had a right to a public trial

in a contempt proceeding held by a “one-man grand jury.” The

grand jury could hold a witness in contempt without affording the

witness anything resembling a trial. /d., at 262. In spite of the

fact that this proceeding in no way resembled a trial, the right to

public trial was imposed because of the serious consequences of

a contempt finding.

“Here we are concerned, not with petitioner’s rights as a

witness in a secret grand jury session, but with his rights as a

defendant in a contempt proceeding. The powers of the judge-

grand jury who tried and convicted him in secret and sen-

tenced him to jail on a charge of false and evasive swearing

must likewise be measured, not by the limitations applicable

to grand jury proceedings, but by the constitutional standards

applicable to court proceedings in which an accused may be

sentenced to fine or imprisonment or both.” Id., at 265

(emphasis added).

Eventually, this Court added so many rights to the nonsum-

mary contempt proceeding that it now resembles a trial. See

Dixon, supra, 509 U. S., at 696. But these were imposed not

because of the complexity of the proceedings, but because of the

consequences of a contempt finding. This point is reiterated in

Hudson v. United States, 522 U.S. __, 139 L. Ed. 2d 450, 456-

10

457, 118 S. Ct. 488, 491 (1997) where this Court found that an

assessment made by the Comptroller of the Currency against bank

executives did not invoke the double jeopardy ban against

subsequent prosecution for the acts that led to the assessment.

While the assessment was made pursuant to an administrative

proceeding, this Court only examined the nature of the sanction

and the intent of Congress in promulgating the sanction, not the

process used to invoke it. See id., at 459, 118 S. Ct., at 493.

Bullington also implied that the fact that the death penalty was

involved made the sentencing hearing more like a trial. See 451

U. S., at 445. This placed Bullington in direct conflict with

Stroud. The Stroud juries had to make the same decision as the

juries in Bullington, whether defendant should be sentenced to

death or imprisonment. The importance of this decision did not,

however, influence the Stroud Court. The decision to inflict the

death penalty was still no more than a sentencing question. As it

did not go to the question of guilt, double jeopardy was irrelevant.

See Stroud, 251 U. S., at 18.

The law of capital punishment did change between Stroud and

Bullington. Starting with Furman v. Georgia, supra, this Court

has invoked the Eighth Amendment to make radical changes in

how, when, and against whom the death penalty is imposed. But

Bullington is not an Eighth Amendment case. Death may be

different under the Eighth Amendment, but until the Bullington

Court chose to bypass Stroud, death was not different for the

purposes of the Double Jeopardy Clause.

North Carolina v. Pearce, 395 U. S. 711 (1969) showed that

the lessons of Stroud were undiminished after 50 years. In

Pearce, a noncapital case, defendant won a reversal of his first

conviction, and was given a higher sentence upon being convicted

at retrial. /d., at 713. The fact that the first sentence was shorter

did not invoke double jeopardy. “Long-established constitutional!

doctrine makes clear that, beyond the requirement already

discussed,’ the guarantee against double jeopardy imposes no

restrictions upon the length of a sentence imposed upon reconvic-

tion.” Jd., at 719. This decision was the logical extension of the

7. That time served under the first sentence must be credited against whatever

sentence is imposed after retrial. /d., at 718-719.

11

government’s power to retry defendant following most reversals.

“{A}t least since 1919, when Stroud v. United States, 251 U.S. 15,

was decided, it has been settled that a corollary of the power to

retry a defendant is the power, upon the defendant’s reconviction,

to impose whatever sentence may be legally authorized, whether

or not it is greater than the sentence imposed after the first

conviction.” Pearce, 395 U. S., at 720 (emphasis added).

Bullington sought to distinguish Pearce on the ground that it

did not involve a separate sentencing proceeding. Bullington,

supra, 451 U. S., at 439. Because the sentencer in Pearce had a

wide range of potential sentences and no standards for guidance,

this decision could not be compared to the one in Bullington. Ibid.

Yet Pearce did not turn on how the sentence was reached.

Instead, it recognized that punishment and guilt are two separate

issues, and only the latter invokes the Double Jeopardy Clause.

See 395 U. S., at 720.

Chaffin v. Stynchcombe, 412 U. S. 17 (1973) received the

same treatment from the Bullington Court as Pearce. Chaffin held

that the underlying rationale of Pearce applies to jury sentencing

as well as judge sentencing. /d., at 18. Chaffin reaffirmed both

Stroud and Pearce, declining any invitation to overrule them. See

id., at 24. Bullington’s effort to distinguish Chaffin by the nature

of the proceeding was as unsuccessful as its effort to distinguish

Pearce.

The final case distinguished by Bullington, United States v.

DiFrancesco, 449 U.S. 117 (1980), shows how far Bullington had

to stretch to avoid precedent. DiFrancesco was convicted in

federal court of racketeering offenses, and had his sentence

enhanced as a dangerous special offender. Jd., at 122. The United

States appealed the dangerous offender sentence, claiming that the

trial court abused its discretion in sentencing defendant to only

one extra year for being a dangerous offender. See id., at 123.

The Court of Appeals dismissed the government’s appeal on

double jeopardy grounds. Jbid.

This Court held that the government’s appeal of a sentence

was not barred by double jeopardy. Appeal of a sentence could

violate double jeopardy only if the initial sentence was viewed as

an acquittal of any higher sentence. /d., at 133. Neither history

nor precedent could support this proposition. Historically,

12

of sentence never carried the same finality that an

acquittal did. Jbid. This was important because the “Double

Jeopardy Clause was drafted with the common-law protections in

mind.” /d., at 134. Allowing the government to appeal a sentence

was a natural application of Stroud, Pearce, and Chaffin. These

cases “clearly establish that a sentence does not have the qualities

of constitutional finality that attend an acquittal.” See id., at 134-

135. Any other result would overrule Pearce. See id., at 135-136,

n. 14.

The sentencing proceeding in DiFrancesco had all the

accoutrements of a trial. The dangerous special offender finding

could be made only after a hearing in which defendant had a right

to counsel, compulsory process, and cross-examination. The

enhancement was imposed only if the trial court found by a

preponderance of the evidence that defendant was a dangerous

special offender. /d., at 118-119, n. 1.

In spite of the great similarity betweer: this proceeding and the

one in Bullington, the Bullington Court felt that it could distin-

guish DiFrancesco. First it noted that DiFrancesco involved only

an “appellate review of a sentence ‘on the record of the sentencing

court,” [18 U. S. C.] § 3576, not a de novo proceeding that gives

the Government the opportunity to convince a second factfinder

of its view of the facts.” Bullington, supra, 451 U.S., at 440. Yet

DiFrancesco itself flatly rejected that very distinction. “While

Pearce dealt with the imposition of a new sentence after retrial

rather than, as [in DiFrancesco}, after appeal, that difference is no

more than a ‘conceptual nicety.’” DiFrancesco, 449 U. S., at

135-136 (emphasis added). The issue in DiFrancesco was

“whether a criminal sentence, once pronounced, is to be accorded

constitutional finality and conclusiveness similar to that which

attaches to a jury’s verdict of acquittal.” Jd., at 132. The Court

understood that there were “fundamental distinctions between a

sentence and an acquittal, and to fail to recognize them is to ignore

the particular significance of an acquittal.” Jd., at 133 (emphasis

added). This, not the particular procedures of the sentencing

hearing, formed the basis of the holding in DiFrancesco.

Bullington’s distinction cannot be squared with the rest of

double jeopardy law. The government cannot appeal after an

acquittal. United States v. Wilson, 420 U. S. 332, 352 (1975). If

13

an appellate court reversed an acquittal and imposed a conviction

on its own accord, it would be no less a violation of double

jeopardy than if the government could retry an acquittal. See

Kepner v. United States, 195 U. S. 100, 133 (1904). Yet Bulling-

ton, in its effort to avoid overruling DiFrancesco, would turn this

difference into a distinction of constitutional significance. In so

doing, it adds Wilson and Kepner to the list of precedents it flouts.

Bullington next tried to distinguish DiFrancesco on the

ground that DiFrancesco involved a sentencing scheme where the

judge had a far broader choice of possible sentences than the one

in Bullington. Bullington, supra, 451 U. S., at 440-441. Once

again, this is a distinction without any constitutional difference.

DiFrancesco did not turn on the Jact that the sentencer could

impose any sentence not to exceed 25 years, a fact it only men-

tions in passing. See DiFrancesco, supra, 449 U. S., at 119, n. 1.

The DiFrancesco Court relied in part upon Stroud, where, as in

Bullington, the sentencing jury only had two options, life impris-

onment or death. See id., at 135 (citing Stroud); Stroud, supra,

251 U. S., at 17-18.

Finally, the Bullington Court attempted to distinguish the trial-

like nature of the special offender hearing in DiFrancesco on the

ground that it only required the prosecution to prove its case by a

preponderance of the evidence, while the sentencing system in

Bullington required proof beyond a reasonable doubt. 451 U. S.,

at 441. This distinction places too much emphasis on what is an

anomaly of Missouri’s capital sentencing scheme.

Many state capital sentencing schemes have a reasonable

doubt standard for the eligibility finding but not for the final

sentencing decision. See, e.g., People v. Frierson, 25 Cal. 3d 142,

180, 599 P. 2d 587, 609 (1979) (upholding California’s 1977 death

penalty law). This Court has upheld such systems. See, e.g,

Pulley v. Harris, 465 U. S. 37, 54 (1984) (same). If Bullington

distinguished DiFrancesco because Missouri imposed the

reasonable doubt standard on the final sentencing decision, then

Bullington is based upon a procedural anomaly of Missouri's

death penalty law. If the Bullington Court was referring to the fact

that Missouri imposes the reasonable doubt standard for eligibil-

ity, then this decision is much narrower than commonly thought;

it would not preclude resentencing a defendant to death if the first

14

jury found him eligible but sentenced him to life. It would also be

much more in conflict with Poland v. Arizona, 476 U. S. 147,

155-156 (1986) which declined to extend Bullington to eligibility

findings. This would further weaken Bullington as precedent. See

part I B 3, post, at 16-18.

DiFrancesco did not turn on the standard of proof. It was a

continuation of cases starting with Stroud that jeopardy does not

attach to the decision of the sentencer. The burden of proof for

imposing a sentence was irrelevant to double jeopardy analysis

until Bullington. If stare decisis is to have any authority, cases

must be distinguished only upon meaningful grounds. Any case

can be “distinguished” from a prior decision. There will always

be some difference in the procedural posture or factual setting that

will support a claim that the cases are different. If trivial differ-

ences are enough to distinguish cases, then stare decisis will have

no meaning.

“(T]o view stare decisis as requiring identical decision only

upon identical material facts as they are seen by the nonprece-

dent court . . . is to impose little constraint by the doctrine.

Stare decisis, so loosely understood, leaves the nonprecedent

court free to avoid the bonds of preceding cases by recasting

their material facts or assigning reasons to the prior decisions

quite distinct from those originally assigned. With this

leeway, courts will seldom be faced with the necessity for

explicit overruling.” Monaghan, Taking Supreme Court

Opinions Seriously, 39 Md. L. Rev. 1, 9, n. 37 (1979) (empha-

sis added).

Stroud, Pearce, Chaffin, and DiFrancesco ali stand for one

principle—that double jeopardy does not prevent the imposition

at a later proceeding of a higher sentence than had been imposed

at an earlier proceeding. In Bullington, this Court said that there

were times when double jeopardy prevents imposing a higher

sentence at a later hearing. Bullington and DiFrancesco thus

stand as a prime example of this Court rendering mutually

inconsistent decisions. See Easterbrook, Ways of Criticizing the

Court, 95 Harv. L. Rev. 802, 811, n. 25 (1982). Stare decisis

requires that this inconsistency be resolved.

This Court must resolve conflicts between its precedents. If

a decision contradicts the principles of an earlier case, confusion

15

in the lower courts is inevitable. If two decisions are in conflict,

stare decisis does not prevent a return to an earlier correct

decision. See Helvering v. Hallock, 309 U.S. 106, 119 (1940).

“Remaining true to an ‘intrinsically sounder’ doctrine estab-

lished in prior cases better serves the values of stare decisis

than would following a more recently decided case inconsis-

tent with the decisions that came before it; the latter course

would simply compound the recent error and would likely

make the unjustified break from previously established

doctrine complete. In such a situation, ‘special justification’

exists to depart from the recently decided case.” Adarand

Constructors, Inc. v. Pefia, 515 U. S. 200, 231 (1995 ini

of O’Connor, J.). . 6 ap

Bullington’s cavalier avoidance of prior authority is the

of situational decision that can only undermine ae

decisis and this Court. , yee

2. Type of decision.

The problems caused by Bullington are particularly seve

because of the type of decision it is. Bullington is 2 caieions

decision, and unless the Constitution is amended, overruling is the

only other method of correcting its errors. Thus, constitutional

prey are a afforded less stare decisis protection

statutory decisions, which suscepti

ree a ons, are always ible to congres-

Some constitutional decisions warrant more stare decisis

protection than others. These involve particularly divisive

national controversies that this Court’s decision has substantially

resolved. See Planned Parenthood v. Casey, 505 U. S. 833, 867

(1992). Bullington is not such a case. While it is important, the

Double Jeopardy Clause has not and is not likely to divide the

country. It involves the sort of technical issue that the lay public

is unlikely to understand well, if at all. Cf. Douglas, Stare Decisis,

49 Colum. L. Rev. 735, 737 (1949). Double jeopardy is a very

complicated part of the law. See DiFrancesco, supra, 449 U.S

at 127. Therefore, this Court has periodically reversed course and

overruled prior double jeopardy decisions. See, e.g., United States

v. Scott, 437 U. S. 82, 86-87 (1978) (overruling United States v.

Jenkins, 420 U. S. 358 (1975)); Burks v. United States, 437 U. S.

16

1, 6-10, 18 (1978) (overruling several prior cases); United States

v. Dixon, 509 U. S. 688, 704 (1993) (overruling Grady v. Corbin,

495 U. S. 508 (1990)); Hudson v. United States, 522 U.S.__,

139 L. Ed. 2d 450, 460-461, 118 S. Ct. 488, 494-495 (1997)

(overruling United States v. Halper, 490 U. S. 435 (1989)). Stare

decisis is at its weakest in this most technical part of the law.

3. Poland v. Arizona.

Bullington’s potential for confusion is also demonstrated by

this Court’s retreat from it in Poland v. Arizona, 476 U. S. 147

(1986). In Poland, a capital case, the trial court erroneously held

that a murder committed during an armed robbery could not

support a murder for pecuniary gain finding. It nonetheless

sentenced the defendants to death because it found that the

murders were “especially heinous, cruel [or] depraved.” Jd., at

149. The Arizona Supreme Court reversed the guilty verdict,

found that there was insufficient evidence to support the especially

heinous circumstance, and noted that murder for pecuniary gain

was supported by armed robbery murder. On retrial, the defen-

dants were again convicted on first-degree murder and again

sentenced to death on the pecuniary gain, especially heinous

grounds. /d., at 149-150. The Arizona Supreme Court upheld the

death sentences for both defendants on the pecuniary gain

grounds. /d., at 151.

This Court upheld the sentences, finding no conflict with

Bullington. The Poland Court held that applying double jeopardy

to individual aggravating circumstances would require viewing

“the capital sentencing hearing as a set of minitrials ....” Jd., at

156. This would push Bullington’s trial analogy “past the

breaking point” and thus was unacceptable. bid.

While the decision not to extend Bullington was proper, it is

very difficult to harmonize Poland with the rationale of Bulling-

ton. Bullington held that the decision not to impose death

constituted an acquittal because the Missouri sentencing proce-

dure that decided this issue was so like a trial. See Bullington,

supra, 451 U. S., at 438, 445. Using the same reasoning, this

Court applied double jeopardy to Arizona’s capital sentencing

hearing. See Arizona v. Rumsey, 467 U. S. 203, 212 (1984). In

Arizona, the decision on an individual aggravating circumstance

17

is made at this same trial-like capital sentencing hearing. See id.,

at 210. Like the penalty question in Bullington, in Arizona “[t}he

usual rules of evidence govern the admission of evidence of

aggravating circumstances, and the State must prove the existence

of aggravating circumstances beyond a reasonable doubt.” Jbid.

The Poland Court ignored this symmetry and refused to apply

Bullington, asserting that its case was different because there had

never been a verdict of life imprisonment. See Poland, supra, 476

U. S., at 154. This flatly contradicts traditional double jeopardy

principles as applied to guilty verdicts. Once an appellate court

finds that there was insufficient evidence to support a conviction,

double jeopardy prevents retrial. Burks v. United States, 437 U. S.

1, 16(1978). Furthermore, an erroneous acquittal is also protected

under double jeopardy. Sanabria v. United States, 437 U. S. 54,

68-69 (1978). Therefore, if Arizona’s death penalty procedure

was considered a trial for double jeopardy purposes, see Rumsey,

467 U. S., at 205 (applying Bullington), the failure to find the

aggravating circumstance at the first penalty “trial” should have

operated as an acquittal.

Poland represents a headlong retreat from the trial metaphor

of Bullington. “[W]hen confronted in Poland with the logical

conclusion of the course it set in Bullington, the Court contents

itself with a statement which in essence says simply: ‘We will not

go that far.’” Bennett, Double Jeopardy and Capital Sentencing:

The Trial and Error of the Trial Metaphor, 19 N.M.L. Rev. 451,

465 (1989). When this Court backs off from a significant portion

of a precedent, it is strong evidence that the precedent is unwork-

able and should be re-examined. Cf. United States v. Dixon, 509

U. S. 688, 709 (1993) (decision in United States v. Felix, 503

U. S. 378 (1992), creating large exception to Grady v. Corbin, 495

U. S. 508 (1990), demonstrated the need to overrule Grady);

Hudson v. United States, supra, 139 L. Ed. 2d 450, 451, 118 S. Ct.

488, 494-495 (1997) (decisions in Department of Revenue of

Mont. v. Kurth Ranch, 511 U. S. 767 (1994) and United States v.

Ursery, 518 U.S.___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996)

undercut United States v. Halper, 490 U. S. 435 (1989)). After

Poland, Bullington is an anomaly in the law, contradicted by cases

decided before and after it.

18

When developments in the law rob a decision of its authority,

it is time to re-examine the old decision. See Patterson v. McLean

Credit Union, 491 U.S. 164, 173 (1989). When a case contradicts

“an ‘unbroken line of decisions’ . . . and has produced ‘confu-

sion,’ ” it is time to re-examine the precedent. Dixon, supra, 509

U. S., at 711-712. Therefore, a re-examination of Bullington is in

order.

Ill. Bullington should be overruled.

A. Wrongly Decided.

When deciding whether a practice should invoke the Double

Jeopardy Clause, this Court has looked to the historical treatment

of the practice, this Court’s precedents, and the underlying

purpose of the Double Jeopardy Clause. See United States v.

DiFrancesco, 449 U. S. 117, 132 (1980). Viewed through this

analysis, sentencing, regardless of the procedural form it takes,

cannot invoke the Double Jeopardy Clause’s protection against

retrial. Bullington failed to apply this analysis to the issue before

it, and therefore was improperly decided.

1. History.

History is the most important tool for interpreting the Double

Jeopardy Clause. Double jeopardy is amongst our oldest legal

principles, with roots as far back as Greek and Roman law. See

J. Sigler, Double Jeopardy 2 (1969). While double jeopardy had

an initially rocky start under the common law, Coke and Black-

stone enshrined it as a part of England’s legal heritage. See id., at

16-20. The Founders recognized the importance of this heritage

and used Blackstone’s definition as the basis of the Double

Jeopardy Clause. See United States v. Wilson, 420 U. S. 332, 340-

342 (1975). “The common law is important in the present context,

for our Double Jeopardy Clause was drafted with the common-law

protections in mind.” DiFrancesco, supra, 449 U. S., at 134.

At the common law, the prohibition took the form of three

pleas: autre fois acquit, former acquittal; autre fois convict,

former conviction; and autre fois attaint, former attainder. See 4

W. Blackstone, Commentaries 329-330 (1st ed. 1769). The first

19

two interests are protected under the Double Jeopardy Clause,

while former attainder is now obsolete. See Sigler, supra, at 18.

The sentencing practices in Bullington and the present case invoke

neither former acquittal nor former conviction.

Historically, neither of these protections were invoked by the

pronouncement of sentence. The only limit on sentencing was the

prohibition against punishing someone again after they had

already completed the imposed sentence, or imposing a sentence

greater than that allowed by law. See Ex parte Lange, 18 Wall.

(85 U. S.) 163, 176 (1874). Neither of these prohibitions was

invoked in Bullington nor the present case. This is the furthest

that double jeopardy extends into sentencing.

“Historically, the pronouncement of sentence has never carried

the finality that attaches to an acquittal. The common law writs

of autre fois acquit and autre fois convict were protections against

retrial.” DiFrancesco, supra, 449 U. S., at 133. As imprisonment

became the more common form of punishment, this distinction

became more important. Thus a trial court could increase a

sentence without violating double jeopardy, so long as it was done

during the same term of the court as the initial sentence. See

Lange, supra, 18 Wall., at 167. Similarly, it was “established

practice in the federal courts that the sentencing judge may recall

the defendant and increase his sentence, at least . . . so long as he

has not yet begun to serve that sentence.” DiFrancesco, 449 U. S.,

at 134.

The Double Jeopardy Clause states: “nor shall any person be

subject for the same offence to be twice put in jeopardy of life or

limb.” U. S. Const., Amdt. 5. This language was adopted to

prevent the retrial of an acquitted defendant, while at the same

time allowing a defendant to seek a new trial on appeal from the

conviction. See Wilson, supra, 420 U. S., at 341. Thus, allowing

a retrial after defendant’s conviction is reversed,*® “is a well-

established part of our constitutional jurisprudence.” United

States v. Tateo, 377 U. S. 463, 465 (1964). This principle is the

basis for the modern distinction between sentencing and convic-

tion. “[I]t rests ultimately upon the premise that the original

8. Except when the reversal is for insufficient evidence. See Burks v. United

States, 437 U.S. 1, 16 (1978).

20

conviction has, at the defendant’s behest, been wholly nullified

and the slate wiped clean.” North Carolina v. Pearce, 395 U. S.

711, 721 (1969). As the slate has been “wiped clean,” any legal

sentence may be imposed upon retrial.’

“But, so far as the conviction itself goes, and that part of the

sentence that has not yet been served, it is no more than a

simple statement of fact to say that the slate has been wiped

clean. The conviction has been set aside, and the unexpired

portion of the original sentence will never be served. A new

trial may result in an acquittal. But if it does result in a

conviction, we cannot say that the constitutional guarantee

against double jeopardy of its own weight restricts the imposi-

tion of an otherwise lawful single punishment for the offense

in question. To hold to the contrary would be to cast doubt

upon the whole validity of the basic principle enunciated in

United States v. Ball, supra, and upon the unbroken line of

decisions that have followed that principle for almost 75

years.” Jd., at 721 (emphasis in original).

This principle is derived from the original intent behind the

particular language of the Double Jeopardy Clause. The Clause

was adopted in its particular form so that defendant could be tried

and sentenced again after obtaining a reversal. Logic compels us

to recognize, as the Pearce Court did, that if the slate is clean for

the conviction, it must be so for the sentence.

The Bullington Court did not attempt any in-depth historical

analysis of its position. While it made great efforts to distinguish

the many cases its holding conflicted with, it ignored history. This

failure to deal with history now warrants reversal.

“We may mystify any thing. But if we take a plain view

of the words of the Constitution, and give to them a fair and

obvious interpretation, we cannot fail in most cases of coming

to a clear understanding of its meaning. We shall not have far

to seek. We shall find it on the surface, and not in the pro-

found depths of speculation.” Ex parte Siebold, 100 U. S.

371, 393 (1880).

9. Provided that any judge-imposed sentence is not vindictively higher than the

original sentence and thus a violation of due process. See id., at 725-726.

21

It is time to bring the Double Jeopardy Clause back from Bulling-

ton’s “depth of speculation.”

2. Precedent.

In addition to ignoring history, Bullington also has no support

in precedent. Its contradiction of prior decisions, primarily United

States v. DiFrancesco, supra, Chaffin v. Stynchcombe, 412 U. S.

17 (1973), North Carolina v. Pearce, supra, and Stroud v. United

States, 251 U. S. 15 (1919), and its contradiction by Poland v.

Arizona, 476 U. S. 147 (1986) are discussed extensively earlier in

this brief. See part | B 1 & 3, supra, at 7-15, 16-18. In addition

to weakening stare decisis support for the case, the fact that

Bullington contradicts prior decisions and is contradicted by

subsequent cases also provides a good reason for overruling

Bullington. See United States v. Dixon, 509 U. S. 688 (1993).

3. Contrary to principles.

In addition to ignoring history and precedent, Bullington

contradicts the gonerel principles Ghat form the foundation of the

Double Jeopardy Clause. In its effort to distinguish North

Carolina v. Pearce, supra, the Bullington Court called forth this

Count s clasale stetement of the principles of the Double Jeopardy

“ “The underlying idea, one that is deeply ingrained in at least

the Anglo-American system of jurisprudence, is that the State

with all its resources and power should not be allowed to

make 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, as well as enhancing the possibility

that even though innocent he may be found guilty.’” Bulling-

ton, supra, 451 U. S., at 445 (quoting Green v. United States,

355 U. S. 184, 187-188 (1957)).

Green recognizes two key protections are provided by the

Double Jeopardy Clause: protecting the innocent from being

convicted, and protecting the defendant from government harass-

ment through repeated litigation. Neither of these principles were

violated by the state courts in Bullington or the present case.

Of these two goals, protecting the innocent is the most

important. It is a fundamental principle of our criminal justice

system that we must make all reasonable efforts to avoid convict-

ing the innocent. Thus, it is better to let ten guilty persons go free

than to convict one innocent person. See 4 W. Blackstone,

-——Commentaries 352 (1st ed. 1769). Sentencing never comes into

conflict with this principle. Before a defendant is sentenced, he

must first be found guilty.

The second principle of Green, protecting defendants from

harassment, is related to protecting the innocent. In addition to

running the risk that an innocent person may be convicted, the

threat of retrial may coerce an innocent person into pleading guilty

to a lesser charge. This is perhaps the most important part of

double jeopardy. The ability to use its resources to coerce any

citizen to do its will is an essential tool of the totalitarian state.

Thus double jeopardy was foreign to the criminal law of Nazi

Germany, Fascist Italy, and the pre-Khrushchev Soviet Union.

See Sigler, supra, at 145-146.

As it relates to innocence, the ability of the state to wear down

individuals is not invoked by sentencing. Until a person is found

guilty, sentencing is irrelevant.

The Double Jeopardy Clause protects more than the innocent.

It will even preserve an apparently erroneous acquittal. See Green

v. United States, 355 U. S. 184, 188 (1957). This serves double

jeopardy’s general protection against harassment. This interest is

not served by treating a lesser sentence as an acquittal of a greater

Green fought to protect all acquitted defendants from undergo-

ing additional “embarrassment, expense and ordeal.” See id., at

187. A new sentencing hearing cannot cause a defendant any

further embarrassment. He has already been convicted of a crime;

the sentencing hearing simply determines his just deserts. Nor

should the extra expense of the sentencing hearing justify double

jeopardy protection. A resentenced defendant has already been

through at least a trial, a sentencing hearing, and a successful

appeal before being resentenced. Many will also have been

through a second trial at their own request. See, e.g., Bullington,

supra, 451 U. S., at 436. Given the large proportion of defendants

23

for whom the state pays defense costs, the additional expense of

a second seniencing hearing is usually de minimis.

A new sentencing hearing is not a particularly harsh ordeal for

defendant. He has already been through the ordeal of being

convicted and is about to experience the ordeal of punishment.

The sentencing hearing is simply the means of determining the

extent of his future punishment. The fact that a higher sentence is

imposed at the second hearing does not change this calculus.

“The possibility of a higher sentence was recognized and accepted

as a legitimate concomitant of the retrial process.” Chaffin v.

Stynchcombe, 412 U. S. 17, 25 (1973).

Green also sought to protect defendants from the continued

anxiety and insecurity caused by retrial. 355 U. S., at 187.

Whatever extra anxiety and insecurity is caused by a new sentenc-

ing hearing is not of constitutional magnitude. The defendant has

already been found guilty. He knows he is going to be punished;

the only issue is how much. As Chaffin recognized, the possibility

Pe > pectoris tate nt sae 412

. S., at 25.

Bullington implies that resentencing was a particular cause of

anxiety and ordeal when the death penalty was involved. Bulling-

ton, supra, 451 U. S., at 445. This is one of the most dangerous

arguments in Bullington. The notion of treating capital cases

differently has largely been confined to the Eighth Amendment,

spawning a complicated body of law. See part I, supra. Double

jeopardy is complicated enough as it is. See United States v.

DiFrancesco, 449 U.S. 117, 126-127 (1980) (citing extensive and

often inconsistent case law). There is no reason to further

complicate it by importing Eighth Amendment concepts.

While the sentencer’s choice between a life sentence and

death is important, this decision must be viewed in this context.

A defendant facing this decision has already been convicted of a

capital crime. A death sentence, so long as it is imposed in

accordance with the Eighth Amendment, is a lawful sentence and

should be treated the same as any other sentence. See Bullington,

supra, 451 U. S., at 451-452 (Powell, J., dissenting).

24

B. Confusion.

In addition to being contrary to precedent and bad policy,

Bullington v. Missouri, 451 U. S. 430 (1981) is also confusing. Its

standard, “the hallmarks of the trial on guilt or innocence,”

confuses the lower courts, spawning a “wide variety of novel

double jeopardy claims.” Jd., at 439. Cf. Hudson v. United

States, 522 U.'S.__, 139 L. Ed. 2d 450, 458, 118 S. Ct. 488, 493

(1997). Bullington’s confusing, ill-considered standard is yet one

more reason to overturn the decision. See, e.g., Seminole Tribe

of Florida v. Florida, 517 U. S. 44, 63-64 (1996); United States

v. Dixon, 509 U. S. 688, 711-712 (1993).

The problem with administering Bullington’s “hallmarks”

standard is in the many subtle variations of sentencing procedures

presented to the courts. Some courts have justified extending

Bullington on the basis of only one procedure benefitting defen-

dant, such as applying the reasonable doubt standard to the

predicate facts for the sentence enhancement. See, e.g., Durosko

v. Lewis, 882 F. 2d 357, 359 (CA9 1989); Briggs v. Procunier,

764 F. 2d 368, 371 (CAS 1985). Other jurisdictions take a more

comprehensive approach, requiring that all three of the factors

found in Bullington must be present to be protected under double

jeopardy. See People v. Levin, 623 N. E. 2d 317 (Ill. 1993) (right

to present evidence and cross-examine, reasonable doubt standard,

and only two sentencing alternatives).

Other factors may also influence this already complex

decision. In People v. Sailor, 480 N. E. 2d 701, 705-710 (N.Y.

1985), New York’s high court used the context of a sentencing

statute to distinguish it from Bullington. The death penalty

statutes in Bullington and Arizona v. Rumsey, 467 U. S. 203

(1984) were “part and parcel of the substantive offense of capital

murder [citations} in which the existence of certain aggravating

circumstances elevate the crime charged from murder punishable

by life imprisonment to murder punishable by death.” Sailor, 480

N. E. 2d, at 707. New York’s persistent felony offender statutes,

however, “are concerned solely with a defendant’s prior criminal

record, and, in the case of a persistent felon, ‘factors in the

defendant’s background and prior criminal conduct’ ” deemed

relevant by the court. /bid. The persistent felony statutes thus did

not aggravate “the substantive offense elevating it to a higher class

25

...+.” Id., at 708. This structural difference, along with the

difference between imposing death and life imprisonment,

allowed the Court of Appeals to distinguish Bullington. Ibid.

Unfortunately, the Sailor Court’s structural analysis was wrong.

“Aggravating circumstances are not separate penalties or offenses

..++” Poland v. Arizona, 476 U.S. 147, 156 (1986). An aggra-

vating circumstance is therefore not an element of the crime of

capital murder. Walton v. Arizona, 497 U. S. 639, 649 (1990).

Sailor demonstrates that Bullington’s unnatural mix of double

jeopardy and sentencing procedures leads to confusion.

Although improperly executed, Sailor’s holding that the

structure of a sentencing statute is relevant to Bullington’s

application is analytically sound. Sentencing schemes can and do

have complex structures. Some may be largely divorced from the

underlying offense, such as habitual offender statutes. Others will

bear a much closer factual relationship to the underlying offense

such as weapons enhancements. See, e.g., Bailey v. United States,

516 U. S. 137 (1995) (interpreting 18 U. S. C. §924(c)(1)). The

relationship of the sentence to the underlying facts of the crime

may thus also influence the Bullington analysis. See Carpenter v.

Chapleau, 72 F. 3d 1269, 1274 (CA6 1996). This intricate,

convoluted, and too often incorrect analysis reinforces the

confusion in the lower courts’ application of Bullington.

Bullington has added one final layer of complexity to the

Double Jeopardy Clause. Although the decision was not based on

any “death is different” agenda, see part I, supra, the gravity of the

death versus life imprisonment decision did influence the Court’s

analysis. See Bullington, 451 U. S., at 445. This distinction may

not be confined to the difference between death and life. The

existence of a particular enhancement or other sentencing fact can

greatly increase a prison sentence. For example, in California,

grand theft can be punished as a felony with a one-year prison

sentence. See Cal. Penal Code § 489(b) (West Supp. 1998). A

person who is convicted of grand theft with one prior serious

felony conviction is subject to a three-year sentence. See

§ 667(e)(1) (doubling base term); § 667.5(b) (one-year enhance-

ment for a prior prison term). If the People prove the existence of

a second prior serious felony conviction, then the base sentence

26

jumps to 25-years-to-life, see§ 667(e)(2), plus an extra two years

for the two prior prison terms. § 667.5(b).

The existence of one prior felony, which raises the punishment

for grand theft to that for noncapital first-degree murder, see

§ 190(a) (West 1988), may thus cause enough anxiety in a

defendant to trigger Bullington’s protection. If it does, then the

Bullington rule will force courts to evaluate the vast, subtle

variations in prison sentences presented by state and federal

sentencing schemes. If the defendant in the present case had a

second prior serious felony allegation proven against him, his

sentence would be increased from 11 years, see People v. Monge,

16 Cal. 4th 826, 831, 941 P. 2d 1121, 1124 (1997) (plurality), to

27-to-life. See Cal. Penal Code § 667.5(b). This less dramatic

enhancement than the one demonstrated in the hypothetical above

may not be enough to trigger Bullington, leaving the Double

Jeopardy Clause’s application dependent upon the particular

defendant being sentenced under the same statute.

Bullington is a mess. This Court now has the opportunity to

clean it up quickly and efficiently by returning to the simple

standard of Stroud, Pearce, and DiFrancesco that sentencing is

not subject to the Double Jeopardy Clause.

C. Punishing Good Deeds.

In addition to being contrary to the law, Bullington also sets a

disturbing example to the states and Congress. An important

reason for its decision to extend the Double Jeopardy Clause to

Missouri’s capital sentencing scheme was the fact that it used the

reasonable doubt standard. Bullington v. Missouri, 451 U. S. 430,

441 (1981). Yet there is no constitutional requirement that

sentencing findings be proved beyond a reasonable doubt. See

part I B 1, supra, at 13-14. In other contexts, this Court ha.

explicitly rejected the assertion that the sentencing decision

requires all the protections of the guilt determination. See Walton

v. Arizona, 497 U. S. 639, 647-648 (1990) (jury trial). Bullington,

by i imposing greater constitutional burdens on a state procedure

because it is more helpful to defendant, encourages states to

provide the accused with only the minimum procedural protection.

The chilling effect this has on state criminal procedure warrants

overruling Bullington.

27

Courts have responded to Bullington by punishing states for

providing defendants with extra rights at sentencing. Those

jurisdictions which have applied Bullington to noncapital cases

have relied primarily upon the rights accorded defendants in the

relevant sentencing proceedings. See, e.g., Durosko v. Lewis, 882

F. 2d 357, 359 (CA9 1989) (reasonable doubt); Nelson v. Lock-

hart, 828 F. 2d 446, 447-448 (CA8 1987), rev'd on other grounds,

Lockhart v. Nelson, 488 U. S. 33 (1988) (both sides present

evidence, cross-examination, reasonable doubt); Briggs v.

Procunier, 764 F. 2d 368, 371 (CAS 1985) (reasonable doubt);

State v. Hennings, 670 P. 2d 256, 261-262 (Wash. 1983) (reason-

able doubt, bifurcated proceedings, limited discretion); People v.

Quinata, 634 P. 2d 413, 419 (Colo. 1981) (reasonable doubt,

bifurcated proceedings, separate verdict). Similarly some

jurisdictions have held Bullington applicable to noncapital cases,

but declined to apply it to specific sentencing processes that were

insufficiently beneficial to defendant. Thus in People v. Levin,

623 N. E. 2d 317, 324 (Ill. 1993), the court noted that while the

yea trmmyes tage nny eteweprmene derbies

process protections afforded a defendant at trial on the issue

a guilt” Il Illinois habitual offender procedure was distinguishable

because it was less beneficial to defendants. “These same

evidentiary and procedural safeguards, however, are not present

....” Ibid. Other courts have reached similar conclusions under

similar analysis. See, e.g., Carpenter v. Chapleau, 72 F. 3d 1269,

1273-1274 (CA6 1996); Woodall v. United States, 72 F. 3d 77, 79-

80 (CA8 1995); Wilmer v. Johnson, 30 F. 3d 451, 456 (CA3

1994); State v. Cobb, 875 S. W. 2d 533, 535 (Mo. 1994); People

v. Sailor, 480 N. E. 2d 701, 703-710 (N.Y. 1985).

The Double Jeopardy Clause does not protect in measured

steps. “[W]here the Double Jeopardy Clause is applicable, its

sweep is absolute. There are no ‘equities’ to be balanced... .”

Burks v. United States, 437 U. S. 1, 11, n. 6 (1978). This absolut-

ism will in turn give appellate courts reason to review the factual

basis of a sentence less strictly. “From the standpoint of a

defendant, it is at least doubtful that appellate courts would be as

zealous as they now are in protecting against the effects of

improprieties at the trial or pretrial stage if they knew that reversal

of a conviction would put the accused irrevocably beyond the

reach of further prosecution.” United States v. Tateo, 377 U. S.

28

463, 466 (1964). The same reasoning applies to the sentencing

hearing.

Bullington’s continued existence will also cause states to

withdraw protections from defendants in order to avoid the

Double Jeopardy Clause. See, e.g., Swisher v. Brady, 438 U. S.

204, 210-212 (1978) (state court changing juvenile court rules in

response to district court ruling that state’s juvenile justice system

violated double jeopardy). Putting more structure into sentencing,

making it more trial-like, may well be to defendants’ benefit.

Such structure would make them less subject to individual judges’

whims and prejudices. Yet Bullington latches on to the trial-like

aspect of the sentencing proceeding to extend the reach of the

Double Jeopardy Clause.

Unless Bullington is removed, states will have every reason to

weaken defendant’s protections in order to avoid additional

constitutional burdens. If the state can restructure a proceeding so

that there is no chance of a double jeopardy violation, but the

ultimate impact on defendant is the same or worse than had the

proceeding remained unchanged, there is no reason to extend the

Double Jeopardy Clause to the original proceeding. See United

States v. DiFrancesco, 449 U. S. 117, 142 (1980). Substance, not

form, is supposed to govern the Double Jeopardy Clause. See

ibid.

Bullington is not the only example os this Court creating

perverse incentives contrary to the interests of those it seeks to

protect. Beginning with Wolff v. McDonnell, 418 U. S. 539

(1974), this Court examined prison regulations to determine

whether the regulations created constitutional protected liberty

interests. See Sandin v. Conner, 515 U. S. 472, 477-482 (1995)

(reviewing cases). These cases developed into an examination of

how much discretion state officials had to withdraw state-created

benefits from prisoners: the more discretion, the less likely that

the prisoner had a constitutional interest in the benefit. See id., at

479-480.

This Court began to recognize the consequences of such

perverse incentives in Hewitt v. Helms, 459 U. S. 460 (1983). “It

would be ironic to hold that when a State embarks on such

desirable experimentation [with procedural guidelines for

discipline] it thereby opens the door to scrutiny by the federal

29

courts, while States that choose not to adopt such procedural

provisions entirely avoid the strictures of the Due Process Clause.”

Id., at 471. Yet Hewitt parsed the language of the relevant statute,

and based on the choice of words found “that the State has created

a protected liberty interest.” Jd., at 472. After Hewitt, close

examination of prison regulations for the extent of the discretion

given to prison officials became the norm. See Conner, supra,

515 U. S., at 481 (discussing Olim v. Wakinekona, 461 U.S. 238

(1983) and Kentucky Dept. of Corrections v. Thompson, 490 U. S.

454 (1989)).

The irrationality of these cases was finally checked in Conner.

“The approach embraced by Hewitt discourages this desirable

development: States may avoid the creation of ‘liberty’ interests

by having scarcely any regulations, or by conferring standardless

discretion on correctional personnel.” Conner, 515 U. S., at 482.

The perversity of such incentives helped justify Conner’s decision

to abandon the methodology embodied in Hewitt. See id., at 483,

n. 5. Conner shows the way out of Bullington’s mess. Decisions

or methodology taat deters government from voluntarily granting

more rights to individuals cannot be tolerated.

Amicus submits that Bullington should be overruled. Any

attempt to salvag> Bullington “involves collision with a prior

doctrine more embracing in its scope, intrinsically sounder, and

verified by experience.” Helvering v. Hallock, 309 U.S. 106, 119

(1940). This prior doctrine was first enunciated in Stroud v.

United States, 251 U.S. 15 (1919), and most recently affirmed in

United States v. DiFrancesco, 449 U. S. 117 (1980). The prior,

better rule is simple. A sentencing decision does not have the

soe of an acquittal; the Double Jeopardy Clause does not

apply.

30

CONCLUSION

The decision of the California Supreme Court should be

affirmed.

March, 1998

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation