Chaffin v. Stynchcombe

Syllabus

No. 71-6732. -Argued February 22, 1973-Decided May 21, 1973

Upon retrial following the reversal of his conviction, petitioner was again found guilty and sentenced by the jury to a greater term than had beet imposed .by the first jy , After exhausting his state court appeals, petitioner was denied habeas corpus on his claim thatiimposing a higher sentence on retrial was unconstitu- tional, and the Court of Appeals affirmed. Held:*The rendition of a higher sentence by a jury upoi retrial does not violate the Double Jeopardy qause, North Carolina v, Pearce, 395 U. S, 711, 719-721, and does not offend the Due Process Clause as long as the jury is not-infoimed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. Nor does the possibilijy'of a higher sentence impermissibly "chill" the exercise of a criminal defendant's right to challenge his first con- viction by direct appeal or collateral attack. Pp. 23-35.

455 F. 2d 640, affirmed, POWELL, J., delivered the opinion of the Court, in .which BuRcER,

LAs, J., filed a.dissenting statement, post, p. 35. STEWART, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 35."

ImSHALL, I., filed a dissenting opinion, post, p. 38.

1123, argued the cause and filed a brief for petitioner.

Richard E. Hicks argued the caise for respondent. On the brief were Lewis R. Slaton, Joel M. Feldman, and Carter Goode.*

"!

*David M. Pdck, Attorney 'General, pro.se, and Bart C. Durham, Assistant Attorney General, filed a brief for the Attorney General'of Tennessee as amicus curiae.

Opinion of the Court

MR. JUsTIoz PowmLL delivered the opinion of the Court.

A writ of certiordri was granted in this case to consider whether, in those States thaVentrust the sentencing re- sponsibility to the -jury, the Due Process Clause of the Fourteenth Amendment bars the jury from rendering higher sentences on retrials following reversals ,of prior convictions. In North Carolina v. Peazrce, 395 U. S. 711" (1969), this Court established limitations on thle imposi- tion of higher sentednces by judges in similar circum- stances. While we reaffirm 'the underlying. rationale of Pearce that vindictiveness against the accused for having successfully overturnad his conviction has no plade in the resentencing process, whether by judge or jury, we hold today that due procesi of law does not reqti*e extension of Pearce-type restrictions to jury- sentencing. x

Early in 1969, petitioner 'was tried by a jury in a Georgia state criminal court on a harge of, robbery by open force or violence, a capital offense at t*at' time.

The jury, which had been instructed that it was em- powered to impose a. sentenceI of .death, life imprison- ment; or a term of years,' found petitioner guilty and sentenced him to 15 ,years in prison. He appealed to the Georgia Supreme Court, claiming primarily that the trial judge had given an erroneous jury instruction as-to thd

'Petitioner was indicted under a statute that provided for the

"Robbery by open force or violence shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, howver, the jury in all cases may recommend that the defendant be im- prisoned in the penitentiary for not less than four years Aor longer than '20 years, in the discretion of the court." Ga. Code Ann. § 26-2502 (1935). replaced by Ga. Code Ann. § 26-1902 (1972).

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

defendant's burden of proving an alibi defense. His. claim was rejected and his conviction' was affirmed.

225 Ga. 602, 170 S. E. 2d 426 (1969). Thereafter, he renewed that claim in a petition for a writ of habeas corpus to the United States District Court for the Northern District of Georgia. The District Court found petitioner's contention meritorious, granted the writ, and ordered him returned to the state court 'for retrial.

Upon retrial before a different judge and a new jury, petitioner was again found guilty. A comparison of tie trial transcripts in the two cases indicates that the trials were similar in most respects. The case was prosecuted on both occasions by the 'same State's attorney and the same prosecution witnesses testified to the facts surround- ing the alleged robbery: Petitioner, however, was repre- sented by new counsel and, in addition to repeating his alibi defense, he interposed an insanity defense not of- fered at the former trial. New witnesses were called to testify for both sides on 'this issue. Also, while peti- tioner took the stand and made an unsworn statement in each case, his statement at the latter trial waslonger and contained autobiographical information not pre- sented to the former jury, including an emotional dis- cussion of his family background, an account of his religious affiliation, job history, previous physical in- juries, and a rendiion of several religious poems and songs he had written.2

The jury instructions bn the permissible range of pun- ishment were the same at each trial and the prosecutor at the second trial urged the jury to sentence petitioner to death, as he had in his closing argument at the prior trial.3 This time, however, the jury returned a sentence

2 For a detailed description of the unique unsworn-statement practice in Georgia see Ferguson v. Georgia, 365 U. S. 570 (1961).

"During oral argument in thi§ Court, counsel disagreed as to whether the prosecutor asked for the death penalty at the first

Opinion of the Court

of life imprisonment. The parties agree that the jury was not aware of the length of the sentence meted out by the former jury. And, although the jury 'was informed by one of petitioner's own witnesses that he had been tried previously on the same charge,' the jury was not told that petitioner had been convicted and that his convic- tion had been overturned oii collateral attack'

Claiming primarily that it was improper for Ole State to allow the jury to render a harsher sentence on retrial, petitioner appealed again to the State Supreme Court.

That court affirmed the lower court's judgmen t and re- fused to alter petitioner's sentehce. 227 Ga.' 327, 180

S. E. -2d 741 "(1971). He then filedhis second .applica-

tion for habeas relief in the Federal District Court, argu- ing that the higher sentence was invalid under Pearce.

trial. Tr. of Oral Arg. 13,26,32-33. At the Court's request, counsel' have filed post-argument affidavits on this question. Although the closing arguments themselves were not transcribed, the State prose- cutor states that, while his memory is not entirely clear on the matter, his notes indicate, and his customary practice suggests, that he asked for the, death sentence at both trials. Any remaining doubt is foreclosed'6ly the affidavit filed by the attorney who repre- sented petitioner during tht first trial. He states unequivocally that in favor of imposition of the the prosecutor argued '-igorously" death penalty during the closing argument in that trial.

4 During the second frial, -petitioner's counsel from the first trial was called. to testify in petitioner's behalf in support of his insanity defense. The substance of his festimqny was that he had an ample opportunity td study petitioner during the previous proceedings and that-he was coni-inced that petitioner was suffering from a mental. defect." He explained that, despite his own evaluatwoin he acqui- esced in' petitioner's reluest that he not interpose an insanity defense at that time.

5 At the most, then, the jury inight have speculated as to whether petitioner's retrial wai the product of a mistrial or of a reversal of a pior conviction.

Indeed, counsel for respondent indicated at oral argument that Georgia has many more retrials occasioned by following conviction reversals. Tr.'of Oral

than retrial aistrials Arg. 38.

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

The District Court disagreed and declined to issue the writ. On appeal to the United States Court of Appeals for the Fifth Circuit, the District Court's judgment was affirmed in an opinion holding that the higher sentence received in this case was not violative of due process.

455 F. 2d 640 (1-072). Because two other federal courts of appeals had held-to the contrary that Poarce restric- tions are applicable,' we granted certi6raii to'resolve the conflict. 409 U. S. 912. (1972).

Georgia is one of a small number of States that entrust the sentencing function in felony cases to the jury rather than to the judge.' While much has been written on the questions whether jury sentencing, is desirable 8 and, whether it is compatible with the modern philosophy of criminal sentencing that "the punishment should fit the offender and not merely the crine," Wilams v. New

8 Compare the Fifth Circuit opinion in the instant case (455 F. 2d 640 (1972)), and Casias v. Beto, 459 F. 2d 54 (CA5 1979), with Levine v. Peyton, 444 F. 2d 525 (CA4 1971), and' Pendergrass V.

Neil, 456 F. 2d 469 (CA6 1972) (pet. for cert. pending, No. 71- 1472). State court decisions on this question appear uniformly to hold Pearce inapplicable to jury resentencing. See cases discussed' in Aplin, Sentene Increases on. Retrial After North Carolina v.

Pearce, 39 U. Cim. L. Rev. 427, 430-432 (1970Y..

Georgia is one of 12 States that provide for jury sentencing in at least some categories of noncapitgl felony cases. Aplin, mpra

n. 6, at 429 and n. 10.

8 See, e. g., Stubbs, Jury Sentencing in Georgia-ime For a Change?, 5 Ga..St. B. J. 421 (1969); Note, Jury Sentencing' i Vfr- ginia, 53 Va. L. Rev. 968 (1967); 1resident's Commission on Law" Enforcement and Administration of Justice, The Challenge "of Crime in a Free Sbeiety 145 (1967), and American Bar Asociation -Project on Standards for Criminal Justice, Sentencing Alternatives and Pro- cedures § 1.1 (Approved Draft 1968) (both recommending the aboli-. tion of jury sentencing).

Opinion of the Court

York, 337 U. S. 241, 247 (1949-1. this C6urt has never expressed'doubt about the constftutionality of that prac- tice. See McGautha v. California, 402 U. S. 183, 196- 208 .(1971); Wilherspoon v. Illinois, 391 U. S. 510, 519- 520 and n. 15 (1968); Spencer v. Texas, 385 U. S. 554, 560 (1967); Giaccio v. Pennsylvdnia,, 382 U. S. 399, 405 n: 8 (1966). The States" have always -enjoyed "wide leeway in dividing responsibility between judge and jury. in criminal cases." Spence y. Texzs, supra, at 560. -If a State concludes that jury sentencing is preferabletbecause, for instance, it guarantees the maintenance of a "link be- tween contemporary community values and the penal system," Witherspoon v. Illinois, supra, at 519 n. 15, or because "juries are more likely to act with compassion, fairness, and understanding than the judge," Stubbs, Jury Sentencing-in Georgia-Time For a Change?, 5 Ga.

St. B. J. 421, 426 (1969), nothing in the Due Process Clause of the Fourteenth Amendment intrudes upon that choice.

Petitioner' dbes not question this proposition.

In- 'stead, he contends that, although the jury may set the sentence, its range of discretion must be subjeced to limitations similar- to those imposed when the sentencing" function on retrial is performed by the judge. While pri- mary reliance, therefore, is placed on this Court's recent opinion in Pearce, petitioner asserts three distinct, due process claims: (A) higher sentences on retrial violate the double jeopardy provision of the Fifth Amendment, made binding on the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Mary- land, 395 U. S. 784, 793-796 (1969) ; (B) higher sentences occasioned by vindictiveness on the part of the sentencing authority violate traditional concepts of fairness in the criminal process; and (C) the possibility of a higher sentence, even absent a reasonable fear of vindictivenes,

CrAFFIN v. STYNCHCOMBE .17 Opinion of 'the Court

has an impermissible "chilling dffect" on the exercise of the rights to appeal and to attack collaterally a convic- tion. Each claim will be considered separately.

7

The question presented in Pearce, arisingin the context of judicial resentencing, was framed as follows: "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 ietrial?" 395 V. S., at 713.

In addressing first the double jeopardy claim, the Court recognized the lbng-accepted power of a State "to retry a defendant-who has succeeded in getting his first conviction set aside," id., at 720 (emphasis in original); United States v. Tateo, 377 U. S. 463 (1964), and, as a "corollary" of that power, "to impose whatever sentence may be" legally authorized, whether or not it is greater than the sentence imposed. after the first conviction:" 395 U. S., at 720.

The foundational precedent from which the Court's view of resentencing discretion derives is Stroud v. United St.ates, 251 U. S. 15 (1919), a case which, because it in- volved jury resenteneing, is central to the double jeopardy claim in the present case. Robert Stroud,. popularly known as "The Birdman of Alcatraz," I was indicted for the murder of a federal prison guard at Leavenworth, Kansas. After being convicted and sentenced by a jury to life imprisonment, he won a retrial upon a confession of error by the Solicitor General. His retrial resulted in another verdict of guilty of murder in the first "degree

"See T. Gaddis, Birdman of Alcatraz (1955); R. Stroud, Diseases of Canaries (1935); R. Stroud, Digest" on the Diseases of Birds (1939); Stroud v. United States, 283 F. 2d 137 (CA10 1960), cert. denied, 365 U, S. 864 (1961).

Opinion of the Court

Id., at 18.

and a sentence, agaii imposed by. the jury, of death.

On a direct appeal, a unanimous Court held that despite the harsher sentence on retrial Stroud had not been "placed in second jebpardy within the meaning of the Constitution." . The Court in Pearce reaffirmed that decision, empha- sizing that it now constitutes a "'well-established part of our constittitional jurisprudence'" which rests on the" "premise that the original conviction has, at the defend- ant's behest, been wholly nullified and the slate wiped clean." 395 U. S., at 720-721. Petitioner, relying on the views of MR. JUSTICE IouGLAs and Mr. Justice Har, lan expressed in their separate opinions in Pearce, id., at 726, :744, urges the Court to- overrule Stroud,° a step which, for the reasons stated in Pearce, we again decline to take.

Petitioner's second contention focuses on the problem of vindictiveness. In Pearce it was held that vindictive- ness, manifesting itself in the form of increased sentences upon conviction after retrial, can have no place -in the resentencing process.'. Under our constitutional system .it would be impermissible for the sektencing authority to mete out higher sentences on retrial as punishment for those who successfully exercised their right to ap- peal, or .to attack collaterally their conviction. 11 Those actually subjected to harsher resentencing as a conse-

20 Brief for Petitioner 9; Tr. of Oral Arg. 40-41..' "" While there is no per. se constitutional right to appeal, this Court has frequently held that once a State establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all. North Carolina v. Pearce, 395 U. S. 711, 724 (1969); Griffin v. Illiois, 351 U. S. 12 (1956); Douglas v.

California, 372 U. S. 353 (1963); Rinaldi v. Yeager, 384 U. S. 305

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

quence of such motivation would be most directly injured, but the wrong would extend as well to those who elect not to exercise their rights of appeal because of a legitimate fear of retaliation. Thus, the Court held that funda- mental notions of fairness embodied within the concept of due process required that convicted defendants be "freed of apprehension of such, a retaliatory motivation."

Id., at 725. To that end, the Court concluded that "whenever a judge imposes a mofe severe sentence upon a defendant *after a new trial, the reasons for his doing so must affirmatiyely appear."

Id., at 726. And, as a further .prophylaxis, it was stated that those reasons must be based upoii "objective information concern- ing identifiable conduct on the part of the defendant occurring after the time of the original sentencing pro- ceeding."

Ibid.

Petitioner seeks the extension-of the Pearce rationale to jury sentencing: That decision, as we have said, was premised on: the apparent need to guard against vin- dictiveness in the 'resentenceng process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher. for some valid reason associated with the need for flexi- bility and discretion in the sentencing process. The possibility of a higher sentence was recognized and ac- cepted as a legitimate Crncomitant of the retrial process.

Id., at 723.

Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness.

In Moon v. Maryland, 398 U. S. 319 ,(1970), a case granted with a view to determining the retroactivity of Pearce, the Court ordered the case dismissed as improvidently granted when it became clear that there was no claim there that the higher sentence received on retrial was

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Opinion of the Court ,

a product of vindictiveness on the part of the sentenc- ing judge. Because counsel for the reconvicted de- fendant. eschewed that contention, the Court held that "there is no claim in this case that the due process stand- ard of Pearce 'was violated."

Id., it 320. A similar focus on actual vindictiveness is reflected in the decision last Term in Colten v. Kentucky, 407 U. S. 104 (1972).

The question in that case was whether the Pearce prin- ciple applied to bar the imposition of a higher sentence- after a de novo trial in those jurisdictions that employ a two-tier system of trial courts. While noting that "[iit may often be that the [de novo "appeal" court] will impose a punishment more severe than that re- ceived from' the inferior court," id., at, 117, we were shown nothing to persuade us that "thd hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement."

Id., at 116 (emphasis supplied).

In short, the Due Process Clause was not violated because the "possibility of vindictiveness'! was not found to inhere in the two- tier system.

Ibid.

,This case, then, is controlled by the'inquiry into pos- sible vindictiveness counseled -by Pearce, Moon, and Colten. The potential, for such abuse, of the sentenc- ing process by the jury is, we think, de minimis in a properly controlled retrial. The first prerequisite for the imposition of a retaliatory penalty is knowledge of the .prior sentence.

It has been conceded in this case that the jury was not informed of the prior sen- tence. We 'have no reason to suspect that this is not customary in a properly tried jury case.

It is more'likely that the jury Will be aware that there was a prior tria], but it does not follow from this that the jury will'know whether that trial was on the same charge, or whether it

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

resulted in a conviction or mistrial."- Other distinguish- ing factors between jury and judicial sentencing further diminish the possibility of impropriety in jury sentencing.

As was true in Cotten, the second sentence is not meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have re- quired a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed. will have no personal stake in the prior conviction and no motivation to engage in self-vindication. Similarly, the jury is un- likely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals."

2See n. 4, supra, and accompanying text. See also n. 14, infra.

"3Finally, depending upon the circumstances, it may. be a de- sirable precaution for the trial judge to give 'the same instructions on the range of punishment at both trials and for the prosecutor to seek the same sentence in each case. See n. 3, supra.

It has been suggested that' higher sentences on retrial might result from vindictiveness on the part of the prosecutor. As pun- ishment for a successful appeal, for instance, a prosecutor might recommend to the jury, and strenuously argue in favor of, a higher sentence than he previously sought. No such indication exists on this record since the prosecutor vigorously urged tha imposition of the death penalty at the first trial.

In any event, it would be erroneous to infer a vindictive motive merely from the severity of the sentence recommended by the prosecutor. Prosemtors often request more than they'ran reasonably expect to get, 1-nowing that the jury will customarily arrive at some compromise, sentence.

The prosecutor's strategy also might well vary from -ase to case depending on such factors as his assessment of the juy's reaction to the proof and to the testimony of witnesses for and against the State. Given these practical considerations, and constrained by the bar against his informing the jury of the facts of prior convic- tion and sentence, the possibility that a harsher sentence will be obtained through prosecutorial malice seems remote. See Williams

v. McMa4n, 436 F. 2d .103, 105-106 (CA2 1970).

Opinion of the Court

In light of these considerations, and where improper.-

and prejudicial information regarding the prior sentence is withheld,'4 there is no- basis for holding that jury re- sentencing poses any real threat of vindictiveness.'"

'4 The State agreed at oral argument that it would be improper to inform the jury of the prior sentence and that Pearce might be applied in a case in which, either because of the highly publicized nature of the prior trial .or because of some other irregularity, the jury was so informed. Tr. of Oral Arg. 39. We do not decide, however, whether improperly informing the jury would always re- quire limitation of the sentence or whether such error might be cured by careful questioning of the jury venire or by a cautionary jury instruction.

15 Because we have- concluded that jury sentencing is not suscep- tible of the abuse that prompted the Pearce decision, we need not consider what remedy would be required if jury sentencing were It is sufficient here to note subjected to Pearce-type restriction's. that because the institution of jury sentencing is unlike judicial sentencing in a number of fundamental ways those restrictions may not be easily invoked. Normally, there would be no way for a jury to place on the record the reasons foi its collective sentencing determination, and ordinarily the resentencing jury would not be informed of any 'conduct of the acL'used unless relevant to the- question of guilt. See Note, supra, n. 8, at 978-980; Stubbs, supra,

n. 8, at 428-429; LaFont, Assessment of Punishment-A Judge or

Jury Function?, 38 'Tex. L. Rev. 835, 837-842 (1960). These im- portant differences would not be entirely overcome by requiring- that jury trials be bifurcated as suggested by the Sixth Circuit in Pendergrass v. Neil, 456 F. 2d, at 472 (pet. tor cert. pending, No. 71- 1472). While some jury-sentencing States have adopted bifurcated jurk trials, in which the jury assesses the punishment in a separate proceeding 'after a verdict of guilty has been rendered (see Aplin, supra, n. 6, at 430, 441-442; Ga. Code Ann. § 27-2534 (1972)), bifur- cation alone would not'wipe away the fundamental differences between It may make little sense to supply the jury and judicial sentencing. jury with information about the defendant's conduct if the goal of jury sentencing is not necessarily to fit the punishment to the offender, and if the jury is, therefore, not concerned about matters considered 'pertinent to judicial sentencing.

Petitioner and recent court of appeals cases suggest that an ap- proximation of the Pearce limitations could, be realized either by-

17

Opinion of the Court

Petitioner's final argument is that harsher sentences on retrial are impermissible because, irrespective of their causes and even conceding that vindictiveness plays no discernible role,16 they have a "chilling effect" on the convicted defendant's exercise of his. right to challenge his first conviction either by direct appeal or collateral attack. What we have said as to Pearce dempnstrates that it provides no foundation for this claim. To the contrary, the Court there intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal. Colten likewise represents a view incompatible with petitioner's contention.

Petitioner relies instead on United States v. Jackson, 390 U. S. 570 (1968), in which the Court held uncon-

instructing the jury that it may return no verdict higher than the former sentence, or by empowering the judge to reduce the second sentence whenever it exceeds the lormer sentence. See Levine v.

Peyton, 444 F. 2d 525 (CA4 1971); Pendergrass v. Neil, supra.

Although these alternatives would provide-an absolute protection from the possibility of vindictiveness, they would also interfere with ordinary sentencing discretion in a manner more intrusive than con- teMplated by Pearce. They would achieve, in the name of due provess, the substance of the result we have declinqd to approve under the Double Jeopardy Clause.

16 During oral 'argument, Tr. of Oral Arg. 11-42, petitioner's counsel seemed to concede the absence of an improper motivation

"Question. Did the jury know anything about the first trial? "[Petitioner's Counsel). No, they did not..

"Question. Was thpre any possibility of vindictiveness? "[Petitioner's Counsel]. There is none, obviously not.

"Question. Why not? "[Petitioner's Counsel]. -Because the jury did not know [about]

the first sentence."

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Opinion of the Court

stitutional the capital punishment provision of the federal antikidnaping law. By limiting to the jury the power to impose a death sentence, the statute "disc6uraged" the exercise by the accused of his rights to trial by jury and to plead not guilty. Id., at 581: The Court found that the interest of the Government in having the jury retain the power to render the death penalty could be realized without this imposition on the rights of the accused. Therefore, the sentencing structure of the statute was struck down because it "unnecessarily" and "needlessly chill[ed] the exercise of basic constitutional rights."' Id., at 582.17

Jackson did not hold, as subsequent decisions have made clear, -that the Constitution forbids every govern- ment-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.

In Brady v. United tates, 397 U. S. 742 (1970), Parker v. North Carolina, 97 U. S. 790 (1970), and North Carolina v. Alford, 400 U. S. 25 (1970), defendants entered pleas of guilty in order to -avoid the potential imposition of death sentences by a jury. Each was dissuaded from exercising his rights to a jury trial and to plead not guilty. Each was, in that sense, "discour- aged" from asserting his rights, but the' Court found no constitutional infirmity despite the claim in each case that Jackson compelled a contrary result. Brady is particularly instructive. The Court there canvassed several common plea-bargaining circumstances in which the accused is confronted with the "certainty or proba-

7 In Brady V. United States, 397 U. S. 742 (1970), the Court 2'

"Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing thqse defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize[d] the assertion of a constitutional right,'"' Id., at 746 (emphasis supplied).

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

bility" that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher" sentence than would have followed a waiver of those rights. 397 U. S., at 751. Although every such circumstance has a discouraging effect on the defendant's assertion of his trial rights; the imposition of these diffi- cult choices was upheld a& an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas."8

Mr. Justice Harlan's opinion for the Court in Crampton

v. Ohio, a companion case to MeGautha v. California,

402 U. S. 183 (1971), deals at some length with the con- stitutional problems surrounding the imposition of dif- ficult choices in the criminal process and is- of particular relevance since it arises in the context of jury sentencing.

Petitioner, Crampton attacked the Ohio system of con- ducting capital trials. Ohio allowed the jury to deter- mine guilt and punishment in a single trial and a single verdict, and Crampton complained that due process re- quired a bifurcated trial because in a single trial he could .not argue his case for mitigaiion of punishment to the jury without forgoing his right to remain silent on the issue of guilt. Id.. at 220-221. Thus, the free exercise of his Fifth Amendment right to remain silent was "chilled" by the prospect that 'a harsher jury sentence might, ensue' The Court did not agree, however, that the burden imposed on that right was impermissible.

18The legitimacy of the practice of "plea bargaining," as the Court noted last Term in Santobetio v. New York, 404 U. S. 257 (1971), has not been doubted and where "properly administered" it is to be "encouraged" as an "essential" and "desirable" "com- ponent 'of the administration of justiee." Id., at 260-261. See also Brady v. United States,. supra at 761-753.

" The case was argued on the theory tha' the Ohio single pro- ceeding created a "tension between constitutional rights," 402 U. S., at 211, similar to.,that involved in Simmons v- United States, 390

U. S. 377 (1968). The Court declined to decide the case in those

Opinion of- the Court

In terms pertinent to the case before us today, the

"The criminal process, like the rest of the legal sys- tem, is replete with situations requiring 'the making of difficult judgments' as to which course to fol- low.... Although a defendant may have a right, even of constitutional dimensions, to follow which- ever course he chooses, the Constitution does not by that token always forbid requiring him to choose."

Id., at 213.

Recognizing that the inquiry, by its very nature, must be made on a case-by-case basis, the Court indicated that the "threshold question is whether compelling the elec- tion impairs to an appreciable extent any of the policies behind the rights involved."

Ibid. The choice imposed by the Ohio system was similar to the .choice frequently faced by a criminal defendant in deciding whether to assert his right to remain silent. And the fact that the consequence of'silence might be a harsher sentence was not regardeal as a distinguishing factor.

jury-resentencing process.

These cases, vie think, erase any question whether Jackson might call for abrogation of Georgia's unre- stricted Jury sentencing, based on each jury's assessment, of the~evidence it hears and appraisal of the demeanor and character of the accused, is a legitimate practice. Supra, at 21-22.

Just as in the guilty-plea cases and Cramptom, an incidental consequence of that practice21 is that it

terms, 402 U. S., at 212-213, but focused instead on the extent to which the lack of a bifurcated proceeding created a burden on the exercise of the right to remain silent, or, stated differently, encour- aged its waiver. Id., at 213-217.

O We reiterate that we ire dealing here only with the case in which juiy sentencing is utilized for legitimate purposes and not as a means of punishing or penalizing the assertion of protected rights. Jackson and Pearce are clear and subsequent cases have not

CHAFFIN v. STYNCHCOMBE 17

Opinion of the Court

may require the accused to choose whether to accept the risk of a higher sentence or to wai-,e his rights.

We see nothing in the right to appeal or the right to attack collaterally a conviction, even vhere constitu- tional errors are claimed, which elevates those rights above the rights to.jury trial and to remain silent.

Petitioner was not himself -"chilled" in the exercise of his right to appeal by the possibility of a higher sentence on r~trial and we doubt that the "chill factor" will often be a deterrent of any significance. Unlike the guilty- plea situation and, to a lesser exteit, the nonbifurcated capital trial, the likelihood of actually receiving a harsher sentence is quite remote at the tile a convicted de- fendant begins to weigh the question whether he will appeal. Several contingencies must coalesce. First, his appeal must succeed. Second, it must result in an order remanding the case for retrial rather than dismissing outright. Third, the prosecutor" must again make the decisioh to prosecute and the accused must again select trial by jury rather than securing a bench trial or ne- gotiating & plea.21 Finally, the jury must again convict

dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is "'patently unconstitutionaL"' Shapiro v. Thompson, 394 U. S. 618, 631 (1q69).

2 1 A footnote in the Court of Appeals opinion indicates that peti- tioner argued in that court that unrestricted jury resentencing would have an impermissible "chilling effect" on his. right to select a jury trial upon retrial. 455 F. 2d, at 641 n. 7. Although thii' argu- ment is not mentioned in his appellate brief in this Court, peti- tioner's counsel touched on it briefly, at oral argument. Tr. of Oral Arg. 13-14. What we have said here regarding the collec- tive force of Pearce, Colten, the guilty-plea cases, and Crampton should make clear that this claim is without merit. Jackson is not to the contrary. Unlike that case, the choice here is srbject to considerable speculation. Applying Pearce, the judge may or may not give a sentence as high as the jury might give. More ,im- portantly, the discouraging effect cannot be said to be "need-

Opinion "of the Court

and then ultimately- the jury or the judge must arrive at a harsher sentence in circumstances devoid-of a genuine likelihood of vindictiveness. While it may not be wholly unrealistic for a convicted defendant to anticipate the occurrence of each of these events,22 especially in the-

le s."

390 U. S., at 583. Th parameters of judge- and jury- sentencing power, given the binding nature of Pearce, can only be made coterminous by either (1) restricting the jury's power of inde- pendent assessment, or (2) requiring jury sentencing in every felony case irrespective whether guilt is determined by a bench trial or.a guilty plea after reversal of the conviction. Either alternative would interfere with concededly legitimate state interests, and thus the bur- den imposed on' the right to trial by jury is no less "necessary," post, at 44-46, than the burdens tolerated in Brady and Cramp- ton. Where the burden of the choice is as speculative as this one is, such incursions upon valid state interests are not justified.

22 In practical terms, as those closest to the criminal appellate process well know (see Herann, Frivolous' Criminal Appeals, 47

N. Y. U. L. Rev. 701 (1972); Carrington, Crowded Dockets and

the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542 (196.9)), the likelihood that a convicted defendant will forgo his right to appeal or to attack collaterally his conviction has been diminishing in recent years, in part as a consequence of decisions removing roadblocks and dis- incentives to appeal. See, e. g., Griffin v. Illinois, 351 U. S. 12 (1956); Douglas v. California, 372 U. S. 353 (1963); Anders v.

California, 386 U. S. 738 (1967); Johnson v. Avery, 393 U. S. 483 (1969); Younger v. Gilmore, 404 U. S. 15 (1971). Available sta- tistical evidence, from both the federal and .state criminal systems, demonstrates that the volume and rate of appeal have risen steadily over the last few years. In a criminal system in which appeal is the rule rather than the exception, the possibility of a higher sen- tence is a remote consideration. See American Bar Association Project on Standards for Criminal Justice, Criminal Appeals 19-21 (Approved Draft 1970) ("The trend today is clearly toward a much higher rate of appeal"); Administrative Office of the U. S. Courts, 1972 Annual Report of the Director II-11 (direct criminal appeals in 1972 up nearly 25% from 1971); Carrington, supra, at 545 (approxi- mately a 200% increase in federal direct criminal appeals from 1959- 1960 tc 1966-1967).

CHAFFIN v. STYNCHCOMBE 17

STEwART, J., dissenting

infrequent case in -which his claim for reversal is strong and his first sentence was unusually low, we cannot agree with petitioner that such speculative prospects interfere with the right to make a free choice whether to appeal.

Guided by the precedents of this Court, these are the conclusions we reach. The rendition of a higher sentence 'by a jury upon rettial does not violate the Double Jeop- ardy Clause. Nor does such a sentence offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not other- wise shown to be a product of vindictiveness: The choice - occasioned by the possibility of a harsher sentence, even in the case in which the choice may-in fact be "difficult," does not place an impermissible bvxden on the right of a criminal defendant to appeal or attack collaterally his conviction.

Affirmed.

Mr. JusTicE DouGLhs dissents for the reasons stated in his dissenting opinion in Moon v. Maryland, 398 U. S.

319, 321 (1970). He also agrees with MR. JusTIcE ST.wART and MR. JusTicE MARsHALL that establishing one rule for resentencing by judges and another for re- sentencing by juries burdens the defendant's right to choose to be tried by a jury after a successful appeal.

United States v. Jackson, 390 U. S. 570 (1968).

MR. JUsTIcE STEWART, with whom MR. JUsTIcE BREN- xv joins, dissenting.

In North Carolina v. Pearce, 395 U. S 711, 725, the Court held 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." As I see it, there is a real danger of such vin-

STBDwAT, J:, dissenting

dictiveness even when a jury rather than a judge imposes the sentence after retrial. Because the Court today de- clines to require any procedures to eliminate that danger, even though procedures quite similar to those adopted in Pearce could readily be applied without sacrificing the values of jury sentencing, I must dissent.

The true threat of vindictiveness at a retrial where the jury metes out the sentence comes from the trial judge and prosecutor. Either or both might have per- sonal and institutional reasons for desiring to punish a defendant who has successfully challenged his conviction.

Out of vindidtiveness the prosecutor might well ask for a sentence more severe than that meted out after the first trial, and a judge by the manner in which he charges the jury might influence the jury to impose a higher sentence at the second trial. In the present case, for example, while the petitioner was sentenced to 15 years' imprisonment after his first trial, on retrial the prosecu- tor asked the jury to impose the death penalty, and the judge instructed .the jurors that they could inflict that punishment.

It is said that the prosecutor and judge gave the jury the option to impose capital punishment at the retrial simply as a tactical move to assure that the petitioner would again receive at least a 15-year sen- tence. But it is not inconceivable in this setting that a prosecutor or a judge might seek to secure a higher sen- tence for a defendant in order to punish him for his successful dppeal.*

*The Court finds the possibility of prosecutorial malice "remote."

Ante, at 27. The only basis for that conclusion appears to be that the prosecutor may have -quite innocent strategic reasons for requesting an increased sentence after a retrial. But that does not foreclose the possibility that a prosecutor might have quite vindictive reasons for seeking a more severe penalty, and it under- lines the extraordinary difficulty a defendant would have in attempt- ing to prove a retaliatory motivation.

CHAFFIN v. STYNCHCOMBE 17

STEwART, J., dissenting

It was to purge that possibility of retaliation that Pearce required prophylactic measures for judicial sen- tencing. Without such procedures, as the Court pointed out in Pearce, it would be extremely difficult for a de- fendant to establish that his higher sentence was the result of a retaliatory motivation.

I agree with the Court today that some measures are ill-suited to eliminating the possibility of retaliation in a case where the jury imposes the sentence. For ex- ample, the jury ought not to be told that its sentencing power is limited by the term imposed at the first trial, for the jury migh then impose a less severe sentence in reaching a compromise verdict. But there is no reason why the trial judge should not be compelled to reduce any sentence imposed by the jury, after retrial to that imposed after the first trial, unless he can- affirmatively set forth the kind of reasons required in Pearce for the increased sentence. "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."

395 U. S., at 726.

As in Pearce, that procedure would serve to minimize the possibility that vindictiveness had played a role in the s~ntence a defendant received after a new trial, and it would free a convicted man from the fear that a successful challenge to his conviction might lead to a vindictively imposed harsher sentence after a second trial.

Since. this measure would, at the most, reinstate the sentence imposed by the original jury, ifne, of the basic purposes served by jury sentencing would be jeopardized. I also agree with my Brother MA srAIL that allowing a more severe sentence to be imposed.by a jury on retrial, when that sentence would be impermissible for a judge to impose, is an infringement upon a defendant's constitu- tional right to a jury trial. -See United States v. Jackson, 390 U. S. 570. Requiring .that a judge reduce a jury-

MARSHALL, J., dissenting

imposed sentence to that imposed after the first trial, unless he can make the kind of findings required by Pearce, would eliminate that illegitimate burden upon a constitutional right.

MR. JusTIcE MARsHALL, dissenting. I cannot agree with the Court that it is permissible for a jury, but not for a judge, to give a defendant on his retrial a sentence more severe than the one he re- ceived in his first trial, without specifying particular aspects of his behavior since the time of his first trial that justify the enhanced sentence. Such a rule is de- fective in two ways. First, the Court acknowledges that a jury violates the Constitution when it gives such a defendant a more severe sentence to punish him for successfully taking an appeal. Ante, at 26-28. Yet, when the costs, in terms of other values served by juries, of the methods of preventing, detecting, and remedying that kind of violation are balanced against the minor de- gree to which restrictions on jury resentencing impair the values served by jury sentencing, the need to vindicate the constitutional right waTrants restrictions on juries similar to those we placed on judges in North Carolina

v. Pearce, 395 U. S. 711 (1969).

Second, as in United States v. Jackson, 390 U. S. 570 (1968), the possibility that a jury might increase a sentence for reasons thit would be unavailable to a judge unnecessarily burdens the defendant's right to choose a jury trial. I there- fore respectfully dissent..

I begin with. what appears to be common ground. If the jury on retrial has been informed of the defendant's prior conviction and sentence, the possibility is real that it will enhance his punishment simply because he success- fully appealed. The Court apparently agrees, ante, at 27 n. 13, 28-29, nn. 14-15, and suggests that a variety of preventive and remedial measures must be taken to min-

17

MARsHALL, J., dissenting

imize that possibility. Those measures, I believe, are too intrusive on the process of selecting the jury and insulating its deliberations from inquiry.

In Pearce we devised a remedy for judicial vindictiveness in sentencing that was broader than the constitutional vice, because a remedy more closely tailored to the vice would too severely intrude on the process by which the judge made his-sentencing decisions. A similar remedy is justified for the same reasons in the case of jury resentencing.

Of course a jury that does not know of a prior con- viction and sentence cannot, take them into account when it resentences the offender. But there is a real possibility that a jury will know of a prior sentence and will enhance the punishment it imposes out of vindictiveness as the Court apparently concedes in lim- iting its holding to "properly controlled retrial[s]."

Ante, at 26. And only when the possibility of vindictive- ness can confidently be said to be de minimis can Pearce be distinguished. Even im Pearce we acknowledged the difficulty in establishing that sentences were frequently enhanced out of vindictiveness. 395 U. S., at 725 n. 20.

Indeed, we could cite only studies that showed that in- creased sentences on reconviction were "far from rare," ibid.; we had before us no evidence at all that vindictive- ness actually played a part in a substantial number of cases where sentences were increased.'

'I assume that the Court would treat jury sentencing'as it treated judge sentencing in Pearce if it were presented with the same kind of evidence we drew on in Pearce. Cf. Witherspoon v. Illinois, 391

U. S. 510, 516-518 (1968). Because of the differing institutional

positions .of judges, who will be repeatedly reviewied by appellate courts, and juries, which are not continuing bodies, cf. Illinois v.

(MARsHALL, J., dissenting), evidence supporting the inference that vindictiveness *may not in- frequently influence jury decisions would be especially valuable from cases in which the evidence on retrial was not substantially different from the, evidence at the first trial.

"-Somerville, 410 U. S. 458, 477 (1973)

MARsHALT, J., dissenting

Given the possibility of vindictiveness, a defendant is entitled to a remedy designed to eliminate, or at least minimize, that possibility.

It follews, I believe, that the defense is entitled to have prospective jurors asked to explore their carefully framed questions designed knowledge of a prior conviction and sentence. Cf. Ham

v. South Carolina, 409 U. S. 524 (1973). But it will

inevitably be difficult to frame questions that will do so without informing the jurors of those facts in the very act of questioning them.

In addition, the right to have questions asked of prospective jurors would be meaningless unless the defense could challenge jurors for cause solely on the bdsis of the answers to those questions. Yet nearly all of the States in which jury sentencing is required have large rural areas,2 where it is quite likely that a retrial after a successful appeal will be a notorious public event.

It seems to me probable, then, that the right recognized by the. Court will sub- stantially impede expeditious selection of juries, for it- will generally be easy to make a threshold showing of local publicity, and may Qften so severely limit the number of available jurors as to raise serious questions of the representativeness of the jury finally chosen.3

The Court suggests that a, curative instruction might minimize the possibility thatfthe jury will be improperly influenced by its knowledge of a prior convictioi or

2 In addition to Georgia, these States include Arkansas, Kentucky, Missouri, Oklahoma, Tennessee, and Virginia.

3Even on the Court's analysis, if a defendant must -proceed to trial before a juy that knows of his prior conviction and sentence, due process would require limitations on the sentence imposed, though such limitations would not be required in "properly controlled retrial[s]." Thus, the Court does not today endorse the proposition that limitatfons on jury sentencing on a retrial are never requited.

See ante, at 28 n. 14. At most, it holds only that, in the absence of knowledge of the prior conviction and sentence, no limitations are constitutionally compelled.

CHAFFIN v. STYNCHCOMBE 17

MTARSHLL, J., dissenting

sentence. Ante, at 28 n. 14. We have already, recognized, however, that it is quite unrealistic to believe that in- structions to aisregard evidence that a jury might treat in a manner highly prejudicial to a defendant will often be followed. Jackson v. Denno, 378 U. S. 368, 388-389 (1964); Bruton v. United States, 391 U. S. 123, 128-137 (1968). Cf. E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956).

And curative instructions may serve only to highlight the problem. *Not. every such instruction is ineffective, of course, but I would not burden the judicial process with difficult inquiries into the effectiveness .of such an instruction where, a§ here, the State's interest in having sentences imposed by a jury can easily be satisfied with- out requiring such inquiries. See infra, at 43.

Finally, a post-sentencing inquiry of a jury that im- poses a more sevdre sentence might disclose that vin- dictiveness played no part in its sentencifig decision. But this could be achieved only by sacrificing the traditional secrecy of jury deliberations. Cf. Clark v. United States, 289 U. ,S. 1 (1933), and cases cited therein.

Because of the differing institutional positions of judge and jury, .and because the jury that sentences also con- 4 The Court distinguishes Pearce from this case in part on the ground that there "the second sentence [was] meted out by the same judicial authority whose handling of the prior trial was suffi- ciently unacceptable to have required a reversal of the conviction," while here "the jury, unlike the judge 'who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication." Ante, at 27. The Court cannot mean that Pearce himself was resentenced by the same'judge who sentenced him in the first place, for Pearce was tried before two different judges. See State v. Pearce, 266 N. C. 234, 236' 145.S. E.

2d 918, 920 (1966) (Judge Williams at first trial); State v. Pearce, 268 N. C. 707, 708, 151 S. E. 2d 571, 572 (1966) (Judge McLaughlin at second trial). Thus, the only differences in this respect are in- stitutional, not personal: juries are not continuing bodies and may have little interest in deterring appeals or vindicating a colleague.

42

MARSHAALL J., &issenting

victs and so-focuses on the facts of the offense, the ques- tion of applying the limitations imposed by Pearce on / resentencing by judges to resentencing by juries would surely be a close one, if only the issue of possible vin. dictiveness were involved. Since no state interests in jury sentencing would boe impaired to anysgnificant Oje- gree by imposing such limitations, however, the question should be resolved in favor of limiting the jury's power.

One group of policies underlying jury sentencing de- fives from the belief that juries will be more humane and compassionate than judges: judges; it is said, repre- sent a centralized goveinment remote from the details of local life; judges who often must seek re-election may be unduly swayed by political. onsiderations that have little impact on juOors; and judges .who, routinely deal with criminal cases may becoriie callous and insensitive to'the human problems of defendants.

In contrast, the jury has close ties to the local co mminity, arid because it sits only once and then dissolves, its members'ordinar- ily have, little experience with criminal offenders. Cf.

Note, Jury Sentencing in Virginia, 53 Va. L. Rev..

968, 988-991 (1967).

It is somewhat anomalous, how- ever, to contendthat because juries are more compas- sionate than judges, they may impose a sentence more severe than a judge may constitutionally impose. I can- not understand, therefore, how.the belief that juries are more compassionate than judges justifies axAlethat per- mits a jury on retrial to impose a sentence more severe than that imposed by the original jury.

'The second policy implicated in jury sentenciug is that. the jury serves as a "link between contemporary -com-, munity values and the penal system," Witherspoon v.

Illinois, 391 U. S. 510, 519 n. 15 (1968).. -More ac- curately than a judge, the jury reflects the community's motal attitude toward the particular offender. -. The jury's function in sentencing, then, is to make the punishment

CHAFFIN v. STYNCHCOMBE 17

IRSaALL, J., dissenting

fit the crime, not the criminal. Limitations on the sen- tences a jury .might impose do impair its ability to decide what punishment fits the crime before it. But incases like this one, one jury has already determined what it, as a representative of community views, thinks is an appro- priate sentence.

Indeed, it has done so after, a,. trial in which reversible error, presumably -prejudicial to the defendant, occurred. Thus, this state interest is not substantially impaired by limitations designed to pre- cude the second jury from imposing a sentence based, in part, on a desire to punish the defendant for taking an appeal.

In short, even if Qnly the question of vindictiveness were involved in the case of jury resentencing, I would hold that limitations similar to those in Pearce must be imposed oi jury resentencing: alternative methods of minimizing -vindictiveness may seriously impair other values, and the limitations of Pearce do not greatly affect the values served by jury sentencing.' But vindictive- ness alone is not the only issue here. For, by establish-

5 The Court suggests thgt the limitations of Pearce cannot easily be adapted to jury sentencing. Ante, at 28-29, n. 15. But procedures like bifurcation, special verdicts stating the reasons for the sentence imposed or stating that the prior conviction and sentence were not, taken into account, instructing the jury tlat the maximum sentence available to it is that imposed earlier, or empowering the judge to reduce the sentence if it exceeds the prior sentence, are some ob- vious alternatives. .The Court suggests that the first two are in- consistent with the basic purpose of jury sentencing-making the punishment fit the crime-and that the latter. two "would achieve, in the name of due process, the substance of the re&ult we have declined to approve under the Double Jeopardy Clause." Ante, at 29,

n. 15. The latter point confuses'limitations imposed by the Constitu-

tion with choices a State might, make to carry out the policies it seeks to vindicate through jury sentencing; if a Stati chooses to impose a maximum limit on resentencing instead of establishing a bifurcated procedure, for example, the result is not, even in substance, the result urged under the Double Jeopardy Clause, for it results'from

44

MARsAL, J., dissenting

ing one rule for sentencing by judges and another for sentencing by juries, the Court places -an unnecessary burden on the defendant's right to choose tobe tried by a jury after a successful appeal.

We held unconstitutional in United States v. Jackson, 390 U. S. 570 (1968), a sentencing'structure that placed an unnecessary burden on a defendant's right to a jury trial. The Court today purports to distinguish Jackson on the ground that subsequent cases show that Jackson does not make unconstitutional sentencing structures that impose a'burden on the exercise of constitutional rights as "an incidental consequence." Ante, at 32. Yet in Jackson we said, "The question is n6t whether the chilling effect is 'incidental" rather than intentional; the question is whether that effect is unnecessary and there-, fore excessive." 390 U, .S., at 582. Brady v. United States, 397 U. S. 742 (1970), ,and Cram pton v. Ohio.' 402

U. S. 183 (1971), the cases that the Court now relies on,

did not overrule Jackson; nor did they change the consti- tutioinal test, The question is still- whether the burden on the exercise of the right to be tried by a jury is neces- sary, not whether it is only incidental to the accoinplish- ment of some legitimate state purpose.

In Brady, a defendant sought to vacate his guilty plea on the ground that he hadpleaded guilty, only to avoid capital punishment, ^under a statute,that provided for' the death penalty only on the, recommendation of *the jury.- The Court viewed his argument as applicable to

choice among alternatives and not from constitutional commands.'

Similarly, bifurcation may injQct into jury sentencing considerations. that the-State thinks are irrelevant to its purposes in "tablishing a system in, which juries are the sentencing authority, and it may decide to adopt some other method -of complying with the con- stitutional requirements. But surely there is no clear conflict be- tween bifurcation oT special verdicts and the purposes- of jury sentencing.

CHAFFIN v. STYNCHCOMBE 17

SARsHALL, J., dissenting

every kind of inducement that the prosecution offers to a defendant in order to elicit a plea of guilty.. See 397

U. S., at 750-753. Thus, on the Court's analysis, up-

holding his challenge would have necessarily' invalidated the widespread practice of plea bargaining, which the Court thought essential to our system of criminal justice.

The burden on the exercise of a defendant's right not to incriminate himself was therefore necessary, in the terms of the analysis required by Jackson.

Similarly, the defendant in Crampton contended that failure to separate the trial of a capital case into a guilt- determining phase and a sentencing phase deterred him from testifying to facts bearing on sentence alone, for to testify would have opened him up to impeachment and to questions bearing on guilt. To the Court, however, such pressure was indistinguishable from 'that placed on him, by a very powerful case for the prosecution that might require rebuttal, or by a large number of other widely accepted procedural rules. See 402 U. S., at 213-

216. As in Brady, then, the Court could not agree with

the defendant without holding unconstitutional many procedures that it thought essential to the criminal process.

Both Brady and Crampton applied the test of neces- sity. The Court today does not, as it concedes when it says that "[where] the burden . . . is As speculative as this one is," constitutional limitations on resentenc- ing are not justified. Ante, at 34 n. 21. But Jackson, Brady, and Crampton did not involve assessments of the relative severity of the burden on the right to choose to be tried by a jury; I they turned on the question of strict

Georgia permits a defendant to plead not guilty and waive his right to jury trial. See Berry v. State, 61 Ga. App. 315, 6 S. E. 2d 148 (1939). Of the States with jury sentencing, apparently only Kentucky does not permit such a waiver. See Meyer v. Common- wealth, 472 S. W. 2d 479, 482 (Ky. 1971). Where the prosecution

MAASHALL, J., dissenting

necessity.7 No legitimate state interest is materially ad- vanced by permitting a second jury to enhance punish- ment without limitations like those placed by Pearce on judges, and such limitations would not substantially affect any such interest. Thus, the rule endorsed by the Court today is not only unnecessary, but it unquestionably, bur- dens a defendant's choice of jury trial after a successful appeal

I believe that Pearce and Jackson require that States with jury sentencing adopt procedures by which juries resentencing an offender are precluded from considering the fact that the offendler successfully appealed in de- termining the new sentence, and so I dissent.

must agree to sudh a waiver, cf. Fed. Rule Crim. ,Proc. 23 (a), it would of cquirse be impermissible to refuse agreement solely because a judge would be restricted in resentencing while a jury would not, cf. Singer v. United States, 380 U. S. 24, 37 (1965).

7 In discussing whether the holding today burdens the right to appeal, the Court says that for the undesired outcome to occur, "[s]everal contingencies must coalesce." Thus, "the likelihood of actually' receiving a harsher sentence is quite remote ai the time, a convicted defendant begins to weigh the question whether he will apbeal." Ante, at 33. But, of the list the Court, provides, only two remain contingent when the defendant must decide to waive or insist upon a jury trial-reconviction and sentence. The Court acknowledges that in some cases, even when all the contingencies must -be *taken into account, the possibilit'y of a harsher sentence might- well -affect the decision to appeal. Ante, at 34-35. The burden will surely be substantial when the contingencies are reduced to two.

8 The Coiirt, in its footnote discussing this argument, does assert that the burden "cannot be said to be 'needless."' Ante, at 33-34, n. 21.

Thei sentence folloiving that assertion does not supply any reason why the burden is necessary; it simply states iwo ways in which the burden might be eliminated without saying why those alter- natives are so impractical as to make necessary the burden that after today's decision, may be placed on the right to jury, trial.