North Carolina v. Pearce/Opinion of the Court

by Potter Stewart

United States Supreme Court

395 U.S. 711

State of NORTH CAROLINA et al., Petitioners,  v.  Clifton A. PEARCE. Curtis M. SIMPSON, Warden, Petitioner,

 Argued: Feb. 24, 1969. ---

When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases.

In No. 413 the respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape. The trial judge sentenced him to prison for a term of 12 to 15 years. Several years later he initiated a state post-conviction proceeding which culminated in the reversal of his conviction by the Supreme Court of North Carolina, upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him, 266 N.C. 234, 145 S.E.2d 918. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which, when added to the time Pearce had already spent in prison, the parties agree amounted to a longer total sentence than that originally imposed. ^[1] The conviction and sentence were affirmed on appeal. 268 N.C. 707, 151 S.E.2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina. That court held, upon the authority of a then very recent Fourth Circuit decision, Patton v. North Carolina, 381 F.2d 636, cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871, that the longer sentence imposed upon retrial was 'unconstitutional and void.' ^[2] Upon the failure of the state court to resentence Pearce within 60 days, the federal court ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit, 397 F.2d 253, in a brief per curiam judgment citing its Patton decision, and we granted certiorari. 393 U.S. 922, 89 S.Ct. 28 , 21 L.Ed.2d 258.

In No. 418 the respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary. He was sentenced to prison terms aggregating 10 years. ^[3] Two and one-half years later the judgments were set aside in a state coram nobis proceeding, upon the ground that Rice had not been accorded his constitutional right to counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years. ^[4] No credit was given for the time he had spent in prison on the original judgments. He then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison, and in imposing grossly harsher sentences upon retrial. United States District Judge Frank M. Johnson, Jr., agreed with both contentions. While stating that he did 'not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the court record some legal justification for it,' Judge Johnson found that Rice had been denied due process of law, because '(u) nder the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.' 274 F.Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge Johnson's opinion,' 396 F.2d 499, 500, and we granted certiorari. 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268.

The problem before us ^[5] involves two related but analytically separate issues. One concerns the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The other is the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. The second question is not presented in Pearce, for in North Carolina it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given such credit. ^[6] Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789. ^[7] And respondent Rice, upon being resentenced, was given no credit at all for th two and one-half years he had already spent in prison.

We turn first to the more limited aspect of the question before us-whether the Constitution requires that, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction.

The Court has held today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. ^[8] It protects against a second prosecution for the same offense after acquittal. ^[9] It protects against a second prosecution for the same offense after conviction. ^[10] And it protects against multiple punishments for the same offense. ^[11] This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872:

'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And * * * there has never been any doubt of (this rule's) entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.

'* * * (T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.' Id., at 173.

We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully 'credited' in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years' imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years' imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed. ^[12]

We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited' ^[13] in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned-by subtracting them from whatever new sentence is imposed.

To hold that the second sentence must be reduced by the time served under the first is, however, to give but a partial answer to the question before us. ^[14] We turn, therefore, to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received.

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 reconviction. At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decidd , it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. ^[15] 'The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.' United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448. And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, 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. ^[16] 'That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 6 Cir., 144 F.2d 392, 396, 397, aff'd on another ground, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944.' United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct., at 1589.

Although the rationale for this 'well-established part of our constitutional jurisprudence' has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. ^[17] 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 imposition 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. We think those decisions are entirely sound, and we decline to depart from the concept they reflect. ^[18]

The other argument advanced in support of the proposition that the Constitution absolutely forbids the imposition of a more severe sentence upon retrial is grounded upon the Equal Protection Clause of the Fourteenth Amendment. The theory advanced is that, since convicts who do not seek new trials cannot have their sentences increased, it creates an invidious classification to impose that risk only upon those who succeed in getting their original convictions set aside. The argument, while not lacking in ingenuity, cannot withstand close examination. In the first place, we deal here, not with increases in existing sentences, but with the imposition of wholly new sentences after wholly new trials. Putting that conceptual nicety to one side, however, the problem before us simply cannot be rationally dealt with in terms of 'classifications.' A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. The result may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a State has invidiously 'classified' those who successfully seek new trials, any more than that the State has invidiously 'classified' those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted. To fit the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.

We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.' Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the 'prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.' Id., 337 U.S. at 247, 69 S.Ct., at 1083.

To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remain for consideration the impact of the Due Process Clause of the Fourteenth Amendment.

It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, 'penalizing those who choose to exercise' constitutional rights, 'would be patently unconstitutional.' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to 'chill the exercise of basic constitutional rights.' Id., at 582, 88 S.Ct., at 1216. See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. ^[19] 'A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.' Nichols v. United States, 106 F. 672, 679. A court is 'without right to * * * put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. * * * (I)t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.' Worcester v. Commissioner of Internal Revenue, 1 Cir., 370 F.2d 713, 718. See Short v. United States, 120 U.S.App.D.C. 165, 167, 344 F.2d 550, 552. 'This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.' Rinaldi v. Yeager, 384 U.S. 305, 310 311, 86 S.Ct. 1497, 1500-1501, 16 L.Ed.2d 577.

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. ^[20]

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

We dispose of the two cases before us in the light of these conclusions. In No. 418 Judge Johnson noted that 'the State of Alabama offers no evidence attempting to justify the increase in Rice's original sentences * * *.' 274 F.Supp., at 121. He found it 'shocking that the State of Alabama has not attempted to explain or justify the increase in Rice's punishment-in these three cases, over threefold.' Id., at 121-122. And he found that 'the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review * * *.' Id., at 122. In No. 413 the situation is not so dramatically clear. Nonetheless, the fact remains that neither at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification for that sentence beyond the naked power to impose it. We conclude that in each of the cases before us, the judgment should be affirmed.

It is so ordered.

Judgment in each case affirmed.

Mr. Justice DOUGLAS, whom Mr. Justice MARSHALL joins, concurring.

Although I agree with the Court as to the reach of due process, I would go further. It is my view that if for any reason a new trial is granted and there is a conviction a second time, the second penalty imposed cannot exceed the first penalty, i respect is had for the guarantee against double jeopardy.

The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct. It may be a year to 25 years, or 20 years to life, or death. He risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again. And the fact that he takes an appeal does not waive his constitutional defense of former jeopardy to a second prosecution. Green v. United States, 355 U.S. 184, 191-193, 78 S.Ct. 221, 225, 227, 2 L.Ed.2d 199.

In the Green case, the defendant was charged with arson on one count and on a second court was charged with either first-degree murder carrying a mandatory death sentence, or second-degree murder carrying a maximum sentence of life imprisonment. The jury found him guilty of arson and second-degree murder but the verdict was silent as to first-degree murder. He appealed the conviction and obtained a reversal. On a remand he was tried again. This time he was convicted of first-degree murder and sentenced to death-hence his complaint of former jeopardy. We held that the guarantee of double jeopardy applied and that the defendant, having been 'in direct peril of being convicted and punished for first degree murder at his first trial' could not be 'forced to run the gantlet' twice. 355 U.S. at 190, 78 S.Ct. at 225.

It is argued that that case is different because there were two different crimes with different punishments provided by statute for each one. That, however, is a matter of semantics. 'It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or allows the court or jury to fix different punishments for the same crime.' People v. Henderson, 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 86, 386 P.2d 677, 686 (1963) (Traynor, J.).

From the point of view of the individual and his liberty, the risk here of getting from one to 15 years for specified conduct is different only in degree from the risk of Green of getting life imprisonment or capital punishment for specified conduct. Indeed, that matter was well understood by the dissenters in Green:

'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 different punishment, namely death rather than imprisonment.' 355 U.S., at 213, 78 S.Ct. at 237 (Frankfurter, J., dissenting). ^[21]

The defendants in the present cases at the first trial faced the risk of maximum punishment and received less. In the second trial they were made to run the gantlet twice, since the Court today holds that the penalties can be increased.

It was established at an early date that the Fifth Amendment was designed to prevent an accused from running the risk of 'double punishment.' United States v. Ewell, 383 U.S. 11, 124, 86 S.Ct. 773, 778, 15 L.Ed.2d 627. When Madison introduced to the First Congress his draft of what became the Double Jeopardy Clause, it read:

'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence * * *.' (Emphasis supplied.) 1 Annals of Cong. 434.

The phrasing of that proposal was changed at the behest of those who feared that the reference to but 'one trial' might prevent a convicted man from obtaining a new trial on writ of error. Id., at 753. But that change was not intended to alter the ban against double punishment. Sigler, A History of Double Jeopardy, 7 Am.J.Legal Hist. 283, 304-306 (1963).

'By forbidding that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' (the safeguard of the Fifth Amendment against double punishment) guarded against the repetition of history by * * * punishing (a man) for an offense when he had already suffered the punishment for it.' Roberts v. United States, 320 U.S. 264, 276, 64 S.Ct. 113, 119, 88 L.Ed. 41 (Frankfurter, J., dissenting). ^[22]

The inquiry, then, is into the meaning of 'double' or 'multiple' punishment. In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, the petitioner had been sentenced to one-year imprisonment and $200 in fines, under a federal statute providing for a maximum penalty of one-year imprisonment or $200 in fines. On writ of habeas corpus five days later, the trial court re-examined its own prior sentence and reset it, instead, at one-year imprisonment without credit for time already served. This Court, on certiorari, ordered petitioner discharged altogether. It reasoned that the trial court had power to impose a sentence of either imprisonment or fine. Because the petitioner had paid the fine, he had already suffered complete punishment for his crime and could not be subjected to further sanction:

'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.' Id., at 168.

Ex parte Lange left it somewhat in doubt, whether the ban on double punishment applied only to situations in which the second sentence was added to one that had been completely served; or whether it also applied to the case where the second sentence was added to one still being served. It was not until United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354, that the Court clarified its position. In that case, having initially set the defendant's sentence at 10 months, the trial court later reduced the sentence to six months. The Government appealed, and the question was certified to this Court, whether a reduction in sentence violated the Double Jeopardy Clause:

'The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. * * * The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment be not augmented. Ex parte Lange, 18 Wall. 163, 167-174, 21 L.Ed. 872 (additional citations omitted). In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limia tion. * * *

'The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution * * *. This is the basis of the decision in Ex parte Lange, supra.' (Emphasis supplied). 282 U.S., at 306, 307, 51 S.Ct., at 114.

The governing principle has thus developed that a convicted man may be retried after a successful appeal, Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; that he may run the risk, on retrial, of receiving a sentence as severe as that previously imposed, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; and that he may run the risk of being tried for a separate offense, Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516. But with all deference I submit that the State does not, because of prior error, have a second chance to obtain an enlarged sentence. ^[23] Where a man successfully attacks a sentence that he has already 'fully served' (Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572), the State cannot create an additional sentence and send him back to prison. Ex parte Lange, supra. Similarly, where a defendant successfully attacks a sentence that he has begun to serve, the State cannot impose an added sentence by sending him to prison for a greater term. ^[24]

The ban on double jeopardy has its roots deep in the history of occidental jurisprudence. 'Fear and abhorence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization.' Bartkus v. Illinois, 359 U.S. 121, 151-155, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (Black, J., dissenting). And its purposes are several. It prevents the State from using its criminal processes as an instrument of harassment to wear the accused out by a multitude of cases with accumulated trials. Abbate v. United States, 359 U.S. 187, 198-199, 79 S.Ct. 666, 672-673, 3 L.Ed.2d 729 (opinion by Brennan, J.).

It serves the additional purpose of precluding the State following acquittal, from successively retrying the defendant in the hope of securing a conviction. 'The vice of this procedure lies in relitigating the same issue on the same evidence before two different juries with a man's innocence or guilt at stake' 'in the hope that they would come to a different conclusion.' Hoag v. New Jersey, 356 U.S. 464, 474, 475, 78 S.Ct. 829, 836, 2 L.Ed.2d 913 (Warren, C.J., dissenting). 'Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches.' Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100.

And finally, it prevents the State, following conviction from retrying the defendant again in the hope of securing a greater penalty.

'This case presents an instance of the prosecution being allowed to harass the accused with repeated trials and convictions on the same evidence, until it achieves its desired result of a capital verdict.' Ciucci v. Illinois, 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983 (Douglas, J., dissenting).

It is the latter purpose which is relevant here, for in these cases the Court allows the State a second chance to retry the defendant in the hope of securing a more favorable penalty.

'Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger of jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But, if after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? * * *

'The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.' Ex parte Lange, supra, 18 Wall. at 173, 21 L.Ed. 872.

The Fourteenth Amendment would now prohibit North Carolina and Alabama, after trial, from retrying or resentencing these defendants in the bald hope of securing a more favorable ^[25] verdict. Benton v. Maryland, 394 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. But here, because these defendants were successful in appealing their convictions, the Court allows those States to do just that. It is said that events subsequent to the first trial ^[26] may justify a new and greater sentence. Of course that is true. But it is true, too, in every criminal case. Does that mean h at the State should be allowed to reopen every verdict and readjust every sentence by coming forward with new evidence concerning guilt and punishment? If not, then why should it be allowed to do so merely because the defendant has taken the initiative in seeking an error-free trial? It is doubtless true that the State has an interest in adjusting sentences upward when it discovers new evidence warranting that result. But the individual has an interest in remaining free of double punishment. And in weighing those interests against one another, the Constitution has decided the matter in favor of the individual. See United States v. Tateo, 377 U.S. 463, 475, 84 S.Ct. 1587, 1594, 12 L.Ed.2d 448 (Goldberg, J., dissenting).

Notes

1. The approximate expiration date of the original sentence, assuming all allowances of time for good behavior, was November 13, 1969. The approximate expiration date of the new sentence, assuming all allowances of time for good behavior, was October 10, 1972.
2. In Patton, the Court of Appeals for the Fourth Circuit had held that 'increasing Patton's punishment after the reversal of his initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense.' 381 F.2d, at 646.
3. He was sentenced to four years in prison upon the first count, and two years upon each of the other three counts, the sentences to be served consecutively.
4. He was sentenced to a prison term of 10 years on the first count, 10 years on the second count, and five years on the fourth count, the sentences to be served consecutively. The third count was dropped upon motion of the prosecution, apparently because the chief witness for the prosecution had left the State.
5. The United States Court of Appeals have reached conflicting results in dealing with the basic problem here presented. In addition to the Fourth and Fifth Circuit decisions here under review, see Marano v. United States, 374 F.2d 583 (C.A.1st Cir.); United States v. Coke, 404 F.2d 836 (C.A.2d Cir.); United States ex rel. Starner v. Russell, 378 F.2d 808 (C.A.3d Cir.); United States v. White, 382 F.2d 445 (C.A.7th Cir.); Walsh v. United States, 374 F.2d 421 (C.A.9th Cir.); Newman v. Rodriguez, 375 F.2d 712 (C.A.10th Cir.). The state courts have also been far from unanimous. Although most of the States seem either not to have considered the problem, or to have imposed only the generally applicable statutory limits upon sentences after retrial, a few States have prohibited more severe sentences upon retrial than were imposed at the original trial. See People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Ali, 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932; State v. Turner, 247 Or. 301, 429 P.2d 565; State v. Wolf, 46 N.J. 301, 216 A.2d 586, 12 A.L.R.3d 970; State v. Leonard, 39 Wis.2d 461, 159 N.W.2d 577.
6. 'THE COURT: It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State's Prison for a period of eight years.'
7. A recent opinion of the Supreme Court of Alabama indicates that state law does require credit for time served under the original sentence at least to the extent that the total period of imprisonment would otherwise exceed the absolute statutory maximum that could be imposed for the offense in question. 'Without such credit defendant would be serving time beyond the maximum fixed by law for the offense * * * charged in the indictment.' Goolsby v. State, 283 Ala. 269, 215 So.2d 602.
8. See Note, Twice in Jeopardy, 75 Yale L.J. 262, 265-266 (1965).
9. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.
10. In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.
11. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354; United States v. Sacco, 2 Cir., 367 F.2d 368; United States v. Adams, 6 Cir., 362 F.2d 210; Ken edy v. United States, 9 Cir., 330 F.2d 26.
12. We have spoken in terms of imprisonment, but the same rule would be equally applicable where a fine had been actually paid upon the first conviction. Any new fine imposed upon reconviction would have to be decreased by the amount previously paid.
13. Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.
14. In most situations, even when time served under the original sentence is fully taken into account, a judge can still sentence a defendant to a longer term in prison than was originally imposed. That is true with respect to both cases before us. In the Pearce case, credit for time previously served was given. See n. 6, supra. In the Rice case credit for the two and one-half years served was not given, but even if it had been, the sentencing judge could have reached the same result that he did reach simply by sentencing Rice to 27 1/2 years in prison. That would have been permissible under Alabama law, since Rice was convicted of three counts of second-degree burglary, and on each count a maximum sentence of 10 years' imprisonment could have been imposed. Ala. Code, Tit. 14, § 86 (1958).
15. See, e.g., Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103; Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412; United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448.
16. In Stroud the defendant was convicted of first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. This Court upheld the conviction against the defendant's claim that his constitutional right not to be twice put in jeopardy had been violated. See also Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944, affirming 144 F.2d 392. The Court's decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision's guarantee against retrial for an offense of which the defendant was acquitted.
17. Cf. King v. United States, 69 App.D.C. 10, 12-13, 98 F.2d 291, 293-294: 'The Government's brief suggests, in the vein of The Mikado, that because the first sentence was void appellant 'has served no sentence but has merely spent time in the penitentiary;' that since he should not have been imprisoned as he was, he was not imprisoned at all.'
18. 'While different theories have e en advanced to support the permissibility of retrial, or 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. 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. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.' United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589.
19. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960).
20. The existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case. But data have been collected to show that increased sentences on reconviction are far from rare. See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained Under Traditional Waiver Theory, 1965 Duke L.J. 395. A touching bit of evidence showing the fear of such a vindictive policy was noted by the trial judge in Patton v. North Carolina, 256 F.Supp. 225, who quoted a letter he had recently received from a prisoner:
21. 'With the benefit of Green v. United States * * * there is support emerging in favor of a broad double jeopardy rule which would protect all federal and state convicts held in prison under erroneous convictions or sentences from harsher resentencing following retrial. * * * (T)he technical argument applying that rule would be as follows: When a particular penalty is selected from a range of penalties prescribed for a given offense, and when that penalty is imposed upon the defendant, the judge or jury is impliedly 'acquitting' the defendant of a greater penalty, just as the jury in Green impliedly acquitted * * * the accused of a greater degree of the same offense.' Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606, 634-635 (1965).
22. 'Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.' State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (opinion by Reed, J.). See also Williams v. Oklahoma, 358 U.S. 576, 584-586, 79 S.Ct. 421, 426-427, 3 L.Ed.2d 516.
23. 'I read the Double Jeopardy Clause as applying a strict standard. * * * It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. * * * The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it-on the Government.' Gori v. United
24. Among the federal courts, some agree that increased sentencing upon retrial constitutes double jeopardy, Patton v. North Carolina, 381 F.2d 636 (C.A.4th Cir. 1967); United States v. Adams, 362 F.2d 210 (C.A.6th Cir. 1966). Other courts of appeals have found it unnecessary to resolve the matter but have indicated that,
25. 'In Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional.' Reid v. Covert, 354 U.S. 1, 37-38, n. 68, 77 S.Ct. 1222, 1241, 1 L.Ed.2d 1148 (opinion of Black, J.).
26. To rely on information that has developed after the initial trial gives the Government 'continuing criminal jurisdiction' to supplement its case against the defendant, far beyond the cut-off date set by its original prosecution. Consider the defendant whose sentence on retrial is enlarged because of antisocial acts committed in prison. To increase his sentence on that original offense because of wholly subsequent conduct is indirectly to hold him criminally responsible for that conduct.