North Carolina v. Pearce/Concurrence Harlan
Mr. Justice HARLAN, concurring in part and dissenting in part.
Were these cases to be judged entirely within the traditional confines of the Due Process Clause of the Fourteenth Amendment, I should, but not without some difficulty, find myself in substantial agreement with the result reached by the Court. However, the Court today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, has held, over my dissent, that the Double Jeopardy Clause of the Fifth Amendment is made applicable to the States by the Fourteenth Amendment Due Process Clause. While my usual practice is to adhere until the end of Term to views I have expressed in dissent during the Term, I believe I should not proceed in these important cases as if Benton had turned out otherwise.
Given Benton, it is my view that the decision of this Court in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), from which I dissented at the time, points strongly to the conclusion also reached by my Brother DOUGLAS, 395 U.S. at 726, 89 S.Ct. at 2089, that the Double Jeopardy Clause of the Fifth Amendment governs both issues presently decided by the Court. Accordingly, I join in Part I of the Court's opinion, and concur in the result reached in Part II, except in one minor respect. 
Green v. United States, supra, held in effect that a defendant who is convicted of a lesser offense included in that charged in the original indictment, and who thereafter secures reversal, may be retried only for the lesser included offense. Mr. Justice Frankfurter observed, in a dissent which I joined, that:
'As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly (increased) * * * punishment * * *.' Id., 355 U.S., at 213, 78 S.Ct., at 237.
Further reflection a decade later has not changed my view that the two situations cannot be meaningfully distinguished.
Every consideration enunciated by the Court in support of the decision in Green applies with equal force to the situation at bar. In each instance, the defendant was once subjected to the risk of receiving a maximum punishment, but it was determined by legal process that he should receive only a specified punishment less than the maximum. See id., 355 U.S., at 190, 78 S.Ct., at 225. And the concept or fiction of an 'implicit acquittal' of the greater offense, ibid., applies equally to the greater sentence: in each case it was determined at the former trial that the defendant or his offense was of a certain limited degree of 'badness' or gravity only, and therefore merited only a certain limited punishment. Most significantly, perhaps, in each case contrary rule would place the defendant considering whether to appeal his conviction in the same 'incredible dilemma' and confront him with the same 'desperate' choice. Id., at 193, 78 S.Ct., at 227. His decision whether or not to appeal would be burdened by the consideration that success,  followed by retrial and conviction, might place him in a far worse position than if he remained silent and suffered what seemed to him an unjust punishment.  In terms of Green, that the imposition of a more severe sentence on retrial is a matter of pure chance, rather than the result of purposeful retaliation for having taken an appeal, renders the choice no less 'desperate.'
If, as a matter of policy and practicality, the imposition of an increased sentence on retrial has the same consequences whether effected in the guise of an increase in the degree of offense or an augmentation of punishment, what other factors render one route forbidden and the other permissible under the Double Jeopardy Clause? It cannot be that the provision does not comprehend 'sentences'-as distinguished from 'offenses' for it has long been established that once a prisoner commences service of sentence, the Clause prevents a court from vacating the sentence and then imposing a greater one. See United States v. Benz, 282 U.S. 304, 306-307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Ex parte Lange, 18 Wall. 163, 168, 173, 21 L.Ed. 872 (1874).
The Court does not suggest otherwise,  but in its view, apparently, when the conviction itself and not merely the consequent sentence has been set aside, or when either has been set aside at the defendant's behest,  the 'slate has been wiped clean,' ante, at 721, and the Double Jeopardy Clause presents no bar to the imposition of a sentence greater than that originally imposed. In support of this proposition, the Court relies chiefly on two cases, Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), and United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). I do not believe that either of these cases provides an adequate basis for the Court's seemingly incongruous conclusion.
Stroud v. United States, supra, held that a defendant who received a life sentence for first-degree murder could,u pon securing a reversal of the conviction, be retried for first-degree murder and sentenced to death. However, the opinion does not explicitly advert to the question whether the Double Jeopardy Clause bars the imposition of an increased punishment, and an examination of the briefs in that case confirms the doubt expressed by the Court of Appeals in Patton v. North Carolina, 4 Cir., 381 F.2d 636, 644 (1967), whether this question was squarely presented to the Court.  Assuming that Stroud stood for the proposition which the majority attributes to it, that decision simply cannot be squared with the subsequent decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See id., at 213, 78 S.Ct., at 237 (dissenting opinion); People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963).
The Court does not rest solely on this ambiguous and doubtful precedent, however. Its main point seems to be that to limit the punishment on retrial to that imposed at the former trial 'would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball,' 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and its progeny. Ante, at 721.
Ball held, simply, that a defendant who succeeds in getting his first conviction set aside may thereafter be retried for the same offense of which he was formerly convicted. This is, indeed, a fundamental doctrine in our criminal jurisprudence, and I would be the last to undermine it. But Ball does not speak to the question of what punishment may be imposed on retrial. I entirely fail to understand the Court's suggestion, unless it assumes that Ball must stand or fall on the question-begging notion that, to quote the majority today, 'the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean.'  Ante, at 721.
In relying on this conceptual fiction, the majority forgets that Green v. United States, supra, prohibits the imposition of an increased punishment on retrial precisely because convictions are usually set aside only at the defendant's behest, and not in spite of that fact. 355 U.S., at 193-194, 78 S.Ct., at 227, 2 L.Ed.2d 199: supra, at 746: the defendant's choice to appeal an erroneous conviction is protected by the rule that he may not again be placed in jeopardy of suffering the greater punishment not imposed at the first trial. Moreover, in its exaltation of form over substance and policy, the Court misconceives, I think, the essential principle of Ball itself:
'While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).
To be sure, this societal interest is compromised to a degree if the second judge is forbidden to impose a greater punishment on retrial than was meted out at the first trial. For example, new facts may develop between the first and second trial which would, as an initial matter, be considered in aggravation of sentence. By the same token, however, the prosecutor who was able to prove only second-degree murder at the former trial might improve his case in the interim and acquire sufficient evidence to prove murder in the first degree. In either instance, if one views the second trial in a vacuum, the defendant has received less punishment than is his due. But in both cases, the compromise is designed to protect other societal interests, and it is, after Green, a compromise compelled by the Double Jeopardy Clause. 
I therefore conclude that, consistent with the Fifth Amendment, a defendant who has once been convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed. Because the Double Jeopardy Clause has now been held applicable to the States, Benton v. Maryland, supra, I would affirm the judgment of the Court of Appeals in No. 418, and vacate and remand in No. 413, so that respondent Pearce may finish serving his first, valid sentence. See n. 1, supra.
^1 An outright affirmance in No. 413 would carry the consequence of relieving the respondent Pearce from serving the remaining few months of his original state sentence. See the Court's opinion, ante, at 713-714 and n. 1. There is no basis, whether the result in this case is governed by due process or double jeopardy, for such an interference with the State's legitimate criminal processes. I would therefore vacate the judgment of the Court of Appeals for the Fourth Circuit in No. 413 and remand the case so that an order may be entered releasing Pearce at, but not before, the expiration of his first sentence. Cf. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).
^2 A prohibition against enhanced punishment on retrial does not, of course, tend in any manner to encourage frivolous appeals. A contrary rule does not discourage frivolous appeals, except insofar as it discourages all appeals.
^3 The would-be appellant's quandary is most clearly seen when the first trial and conviction for a capital offense result in a sentence of life imprisonment. Cf., e.g., Green v. United States, supra.
^4 Indeed, the Court relies on these cases in Part I of its opinion to hold that a prisoner must be afforded credit for time served pursuant to a subsequently vacated sentence.
^5 Neither Lange nor Benz indicates that the principle prohibiting the imposition of an enhanced sentence on the same judgment of conviction depends on whether the original sentence is vacated on the prisoner's application, or is set aside sua sponte by the court. (It appears, though not clearly, that Lange's sentence was set aside at this behest.)
In Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711 (1900), however, the Court indicated that one who successfully moves to vacate his sentence occupies 'the same posture as if he had sued out his writ of error on the day he was first sentenced, and the mere fact that by reason of his delay in doing so he had served a portion of the erroneous sentence could not entitle him to assert that he was being twice punished.' Id., at 161-162, 20 S.Ct., at 641. Thus, the Court concluded in Murphy not only that the sentence could be augmented, but also that the petitioner was not constitutionally entitled to any credit for time served under the first sentence.
This proves too much, as the Court today holds in Part I of its opinion. In my view, neither conclusion survives Green.
^6 Stroud pitched his double jeopardy claim on the theory that, although 'the constitutional prohibition does not prevent a second trial after reversal in non-capital cases,' it does-without reference to the sentence imposed-preclude 'a second trial upon reversal of a conviction in a capital case.' Brief for Plaintiff in Error in No. 276, O.T.1919, p. 32. Stroud's argument as to the enhanced sentence appears based solely on nonconstitutional grounds. See id., at 89 et seq.
^7 This fiction would seem to lead to a result which even the majority might have difficulty reconciling with the Double Jeopardy Clause's prohibition of multiple punishment. Consider the situation of a defendant who successfully vacates a conviction and is then retried and convicted after he has fully served the sentence first imposed. See Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Sibron v. New York, 392 U.S. 40 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Although the sentence was fully served, the defendant himself has caused the judgment to be vacated, and the majority's 'nullification' principle would seem to allow the judge to impose a new sentence of imprisonment on him-so long as the new sentence was an 'increased' sentence rather than the result of the court's failure to 'credit' the defendant with the sentence he had completed.
^8 That the new facts may consist of misdeeds committed by the defendant since the first trial, rather than prior misconduct only subsequently discovered, should not, in my view, alter the outcome under Green and the other double jeopardy cases. If subsequent misdeeds amount to criminal violations, the defendant may properly be tried and punished for them. If they amount to something less, the very uncertainty as to what kinds of noncriminal conduct may be considered in aggravation of the sentence on retrial would, analytically, seem to thwart the concerns protected by Green. In either event, I do not understand what rational policy distinguishes a defendant whose appeal is successful from one who takes no appeal and whose sentence may not, consistent with the Double Jeopardy Clause, be augmented. See supra, at 747.
Of course, nothing in the Double Jeopardy Clause forbids a prosecutor from introducing new and harmful evidence at the second trial in order to improve his chances of obtaining a conviction for the lesser offense of which the defendant was previously convicted or to assure that the defendant receives the full punishment imposed at the first trial.