Sometimes a defendant facing the death penalty once will have to undergo another trial for the same capital offense and face the death penalty again. That sounds odd, in view of the double-jeopardy protection against twice being ‘‘put in jeopardy of life or limb’’ (U.S. Const. Amend. V). In a case in which a defendant has been sentenced to death but achieves a reversal of either the conviction or death sentence, no double-jeopardy concerns arise, because prosecutors as a general rule may retry defendants for the same crime in the aftermath of an appellate reversal. Often, such defendants are relieved to have a second opportunity to avoid a death sentence. Still, there are instances in which a death-sentenced defendant who succeeds in overturning a death verdict will argue that a capital resentencing ought not to be allowed. That occurs when the basis for overturning the death verdict involves a finding, implicit or explicit, that the defendant ought not to have been eligible for the death penalty in the first place.
But what if the defendant received a life sentence and later succeeds in overturning the conviction—may the prosecution now retry the defendant and seek a death sentence? Put in stark terms, does a defendant who avoids getting the death sentence in the original trial assume the risk of getting sentenced to death in a second trial, should he succeed in overturning his conviction?
In noncapital cases, prosecutors may retry defendants whose convictions have been reversed and seek the same or tougher sentence as that sought in the original trial. But a capital sentencing process is unlike the conventional sentencing process in that the capital penalty–phase proceeding resembles a trial, with testimony taken and the burden of proof placed on the prosecution to convince the jury to impose death. That fact triggers the Double Jeopardy Clause. In Bullington v. Missouri, 451 U.S. 430 (1981), the Supreme Court held that a prosecutor may not seek the death penalty in a retrial against a defendant who has received a life verdict in the original trial. The Bullington jury’s life verdict, in effect, constituted an ‘‘acquittal’’ vis a´ vis the death penalty, and that acquittal barred putting the defendant again in jeopardy of losing his life.
Bullington is not as sweeping in its reach as one might think. It is possible that a capital defendant who succeeds in securing a life verdict could be reprosecuted and again face the death penalty. The Supreme Court confronted a not-so-unique situation in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), and authorized a reprosecution for the death penalty on a defendant who had in his original trial secured a life verdict. A jury convicted Sattazahn of capital murder but deadlocked on the issue of whether to impose death (nine voting for life, three for death). Pennsylvania law required the judge to impose a life sentence in the event of a hung jury. Sattazahn successfully appealed his conviction, and on retrial the prosecution sought again to secure a death verdict. The Supreme Court, in a five to four vote, ruled that the Double Jeopardy Clause did not bar putting Sattazahn again in jeopardy of losing his life. Whereas in Bullington, the jury rendered a life verdict—thus affirmatively acquitting the defendant of the death penalty—the Sattazahn jury’s failure to arrive at a verdict meant that there had been no such ‘‘acquittal.’’ The dissenters argued that the life sentence, which was mandated by law, terminated the proceedings in defendant’s favor, thus barring the renewed attempt to secure a death verdict. But the Sattazahn majority construed the Double Jeopardy Clause narrowly, finding that it only applies when there has been an actual jury finding that some element of the prosecution’s case had not been proved.
DANIEL R. WILLIAMS
References and Further Reading
Cases and Statutes Cited