bullington missouri argued january decided may missouri law provides two possible sentences defendant convicted capital murder death life imprisonment without eligibility probation parole years state statutes separate presentence hearing additional evidence mitigation aggravation punishment heard must held jury found defendant guilty prosecution must prove existence aggravating circumstances beyond reasonable doubt death penalty may imposed jury imposes death penalty must designate writing aggravating circumstance circumstances finds beyond reasonable doubt phase petitioner trial resulted verdict guilty capital murder presentence hearing resulted jury additional verdict fixing petitioner punishment life imprisonment without eligibility probation parole years granting petitioner motion new trial intervening decision duren missouri held missouri allowing automatic exemption women jury service unconstitutional trial announced grant petitioner motion based double jeopardy grounds strike prosecution notice intended seek death penalty basis aggravating circumstances sought prove first trial missouri appeals denied state request writ prohibition mandamus missouri ultimately granted writ prohibition held missouri law sentencing proceeding petitioner first trial like trial question guilt innocence protection afforded double jeopardy clause one acquitted jury available respect death penalty retrial reasoning stroud controlling pp generally concluded imposition particular sentence usually regarded acquittal severe sentence imposed double jeopardy clause imposes absolute prohibition imposition harsher sentence retrial defendant succeeded original conviction set aside see north carolina pearce chaffin stynchcombe stroud supra difrancesco however cases unlike present case sentencing procedures hallmarks trial guilt innocence first three cases separate sentencing proceeding prosecution required prove additional facts order justify particular sentence sentencer discretion determining punishment essentially unfettered although difrancesco supra involved separate sentencing procedure prosecution required prove additional fact warranting harsher penalty preponderance evidence sentencer choice punishment far broader two choices available petitioner jury missouri law pp rationale burks held defendant may retried obtains reversal conviction ground evidence insufficient convict relevant usual sentencing proceeding impossible absence sentencing standards conclude sentence less statutory maximum constitutes decision effect prosecution failed prove case enacting capital sentencing procedure resembles trial issue guilt innocence missouri explicitly requires jury determine whether prosecution proved case petitioner sentence life imprisonment first trial meant jury already acquitted whatever necessary impose death sentence pp blackmun delivered opinion brennan stewart marshall stevens joined powell filed dissenting opinion burger white rehnquist joined post richard sindel argued cause petitioner brief gail gaus james cook argued cause filed brief respondent justice blackmun delivered opinion stroud concerned defendant convicted murder sentenced life imprisonment obtained upon confession error solicitor general reversal conviction new trial unanimous vote case held double jeopardy clause fifth amendment bar imposition death penalty stroud new trial convicted issue present case whether reasoning stroud also apply system jury sentencing decision made bifurcated proceeding second stage prosecution burden proving certain elements beyond reasonable doubt death penalty may imposed missouri law provides two two possible sentences defendant convicted capital murder death life imprisonment without eligibility probation parole years mo rev stat like death penalty legislation enacted decision furman georgia missouri statutes contain substantive standards guide discretion sentencer statutes also afford procedural safeguards convicted defendant section provides trial shall conduct separate presentence hearing defendant convicted jury capital murder hearing must held jury found defendant guilty additional evidence extenuation mitigation aggravation punishment shall heard evidence aggravation prosecution made known defendant prior trial shall admissible jury must consider whether evidence shows exist aggravating circumstances mitigating circumstances specified statute see whether mitigating aggravating circumstances authorized law exist whether aggravating circumstances exist sufficient warrant imposition death penalty whether mitigating circumstances exist outweigh aggravating circumstances jury imposes death penalty must designate writing aggravating circumstance circumstances finds beyond reasonable doubt also must convinced beyond reasonable doubt aggravating circumstance circumstances finds exist sufficient warrant imposition death penalty missouri approved instructions criminal missouri jury instructed compelled impose death penalty even decides sufficient aggravating circumstance circumstances exist outweighed mitigating circumstance circumstances jury decision impose death penalty must unanimous jury unable agree defendant receives alternative sentence life imprisonment described ii december petitioner robert bullington indicted louis county capital murder crimes arising abduction young woman subsequent death drowning circuit louis county granted petitioner pretrial motion change venue jackson county western part state prosecution letter informed defense state seek death penalty jury convicted defendant capital murder app stated prosecution present evidence two aggravating circumstances specified statute offense committed person substantial history serious assaultive criminal convictions offense outrageously wantonly vile horrible inhuman involved torture depravity mind phase petitioner trial jury returned verdict guilty capital murder app following day trial proceeded hold presentence hearing required evidence submitted prosecution received none offered defense argument counsel instructions judge deliberation jury returned additional verdict fixing petitioner punishment death imprisonment life without eligibility probation parole years app petitioner moved various grounds judgment acquittal alternative new trial motion pending duren missouri decided case held missouri constitutional statutory provisions allowing women claim automatic exemption jury service deprived defendant sixth fourteenth amendments right jury drawn fair community trial overruled petitioner motion acquittal relying upon duren granted motion new trial app soon thereafter prosecution served filed formal notice evidence aggravation stating intended seek death penalty notice specified aggravating circumstances state sought prove first trial see also tr oral arg asserted introduce evidence previously disclosed defense counsel app defense moved strike notice arguing double jeopardy clause fifth amendment made applicable fourteenth amendment benton maryland barred imposition penalty death first jury declined impose death sentence trial announced grant motion permit state seek death penalty issued formal order effect prosecution sought writ prohibition mandamus missouri appeals western district granting temporary stop order app appeals without opinion denied state request dissolved stop order missouri however granted prosecution motion transfer case issued preliminary writ prohibition argument sitting en banc divided vote sustained state position made writ absolute state ex rel westfall mason held neither double jeopardy clause eighth amendment due process clause barred imposition death penalty upon petitioner new trial allowing prosecution seek capital punishment impermissibly chill defendant effort seek redress constitutional violation committed initial trial granted certiorari order consider important issues raised petitioner regarding administration death penalty iii well established double jeopardy clause forbids retrial defendant acquitted crime charged difrancesco burks martin linen supply fong foo green however resisted attempts extend principle sentencing imposition particular sentence usually regarded acquittal severe sentence imposed generally concluded therefore double jeopardy clause imposes absolute prohibition imposition harsher sentence retrial defendant succeeded original conviction set aside see north carolina pearce see also difrancesco chaffin stynchcombe stroud procedure resulted imposition sentence life imprisonment upon petitioner bullington first trial however differs significantly employed cases double jeopardy clause held inapplicable sentencing jury case given unbounded discretion select appropriate punishment wide range authorized statute rather separate hearing required held jury presented choice two alternatives standards guide making choice prosecution simply recommend felt appropriate punishment undertook burden establishing certain facts beyond reasonable doubt quest obtain harsher two alternative verdicts presentence hearing resembled indeed relevant respects like immediately preceding trial issue guilt innocence trial issue punishment precisely defined missouri statutes contrast sentencing procedures considered previous cases hallmarks trial guilt innocence pearce chaffin stroud separate sentencing proceeding prosecution required prove beyond reasonable doubt otherwise additional facts order justify particular sentence cases moreover sentencer discretion essentially unfettered stroud standards enacted guide jury discretion pearce judge wide range punishments choose explicit standards imposed guide chaffin discretion given jury extremely broad defendant convicted georgia robbery sentenced death life imprisonment prison term years statute contained standards guide jury exercise discretion one prior case difrancesco considered separate bifurcated sentencing procedure necessary prosecution prove additional facts federal statute consideration dangerous special offender provision organized crime control act requires separate presentence hearing government must prove additional fact defendant dangerous special offender defined statute order impose enhanced sentence highly pertinent differences missouri procedures controlling present case found constitutional difrancesco federal procedures issue difrancesco include appellate review sentence record sentencing de novo proceeding gives government opportunity convince second factfinder view facts moreover choice presented federal judge far broader faced state jury present petitioner trial bullington missouri jury given state statutes given two choices death life imprisonment hand federal government proves person convicted felony dangerous special offender judge may sentence person appropriate term exceed years disproportionate severity maximum term otherwise authorized law felony finally although statute requires government prove additional fact defendant dangerous special offender need preponderance evidence ibid stands contrast standard missouri statute standard required used trial issue guilt innocence jackson virginia winship state use standard indicates said generally criminal case interests defendant magnitude protected standards proof designed exclude nearly possible likelihood erroneous judgment ur society imposes almost entire risk error upon addington texas iv procedural differences become important underlying rationale cases considered state relies principally upon north carolina pearce starting point case established rule double jeopardy bar retrying defendant succeeded overturning conviction see tateo ball stated rule rests premise original conviction nullified slate wiped clean therefore defendant convicted constitutionally may subjected whatever punishment lawful subject limitation receive credit time served important exception however rule recognized pearce defendant may retried obtains reversal conviction ground evidence insufficient convict burks reasons exception relevant eversal trial error distinguished evidentiary insufficiency constitute decision effect government failed prove cases implies nothing respect guilt innocence defendant said defendant conviction overturned due failure proof trial case prosecution complain prejudice given one fair opportunity offer whatever proof assemble since necessarily accord absolute finality jury verdict acquittal matter erroneous decision difficult conceive society greater interest retrying defendant review decided matter law jury properly returned verdict guilty emphasis original thus clean slate rationale recognized pearce inapplicable whenever jury agrees appellate decides prosecution proved case usual sentencing proceeding however impossible conclude sentence less statutory maximum constitute decision effect government failed prove case normal process sentencing virtually rules tests standards thus issues resolve frankel criminal sentences law without order thus discretion judge sentencing matters virtually free substantive control guidance judge power select term imprisonment within range exercise authority left fairly large kadish legal norm discretion police sentencing processes harv rev cases considered role double jeopardy clause sentencing noted absence sentencing standards difrancesco example observed sentence characteristically determined large part basis information presentence report developed outside courtroom purely judicial determination much goes result inquiry nonadversary nature even jury imposes sentence ormally way jury place record reasons collective sentencing determination chaffin stynchcombe enacting capital sentencing procedure resembles trial issue guilt innocence however missouri explicitly requires jury determine whether prosecution proved case burks green noted state exception general rule relied upon north carolina pearce exception applicable therefore refrain extending rationale pearce different facts present case chief justice bardgett dissent ruling missouri majority observed sentence life imprisonment petitioner received first trial meant jury already acquitted defendant whatever necessary impose death sentence agree verdict acquittal issue guilt innocence course absolutely final values underlie principle stated justice black equally applicable jury rejected state claim defendant deserves die underlying idea one deeply ingrained least system jurisprudence state resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity well enhancing possibility even though innocent may found guilty green already held many protections available defendant criminal trial also available sentencing hearing similar required missouri capital case see specht patterson due process protections right counsel right confront witnesses right present favorable evidence available hearing sentence may imposed based upon new finding fact ingredient offense charged sentencing proceeding petitioner first trial like trial question guilt innocence protection afforded double jeopardy clause one acquitted jury also available respect death penalty retrial therefore refrain extending reasoning stroud different situation judgment missouri reversed case remanded proceedings inconsistent opinion ordered footnotes definition capital murder missouri set forth mo rev stat person unlawfully willfully knowingly deliberately premeditation kills causes killing another human guilty offense capital murder section reads persons convicted offense capital murder shall judge jury recommends complying provisions sections punished death judge jury recommend imposition death penalty finding guilty capital murder convicted person shall punished imprisonment division corrections natural life shall eligible probation parole served minimum fifty years sentence relevant times read pertinent part conclusion trials upon indictment information capital murder heard jury argument counsel proper charge jury shall retire consider verdict guilty guilty without consideration punishment verdict ascertain whether defendant guilty capital murder murder first degree murder second degree manslaughter guilty offense jury returns verdict finding guilty provided subsection section shall resume trial conduct presentence hearing jury time issue shall determination punishment imposed hearing subject laws evidence jury shall hear additional evidence extenuation mitigation aggravation punishment including record prior criminal convictions pleas guilty pleas nolo contendere defendant absence prior criminal convictions pleas evidence aggravation prosecution made known defendant prior trial shall admissible jury shall also hear argument defendant counsel prosecuting attorney regarding punishment imposed prosecuting attorney shall open defendant shall conclude argument jury upon conclusion evidence arguments judge shall give jury appropriate instructions jury shall retire determine punishment imposed capital murder cases death penalty may imposed jury additional procedure provided section shall followed jury shall fix sentence within limits prescribed law judge shall impose sentence fixed jury jury within reasonable time agree punishment judge shall impose sentence within limits law except judge shall instance impose death penalty cases tried jury jury agree upon punishment trial reversed appeal error presentence hearing new trial may ordered shall apply issue punishment petitioner case sentenced jury first trial describe missouri procedure imposition death penalty jury section amended provide two additional specified aggravating circumstances added capital murder committed defendant engaged perpetration attempt perpetrate felony rape forcible rape felony sodomy forcible sodomy capital murder committed defendant purpose preventing person killed testifying judicial proceeding mo rev stat supp petitioner also charged state crimes kidnaping armed criminal action burglary flourishing dangerous deadly weapon trial petitioner found guilty charges although proceedings take place state judgment rejecting petitioner double jeopardy claim final within meaning jurisdictional statute harris washington see abney subsequent decisions furman georgia gregg georgia courts least two concluded defendant originally sentenced life imprisonment may sentenced death upon retrial reversal original conviction texas criminal appeals relied upon cases construing double jeopardy clause sanne state brasfield state georgia concluded imposition death sentence circumstances violate requirement code sentence excessive disproportionate penalty imposed similar cases considering crime defendant ward state statutorily prescribed presentence hearing counsel make opening statements testimony taken evidence introduced jury instructed final arguments made jury deliberates returns formal punishment verdict see supra steps taken petitioner presentence hearing following first trial think without significance pertinent missouri statute speaks specifically presentence hearing terms continuing trial section verdict guilty capital murder returned shall resume trial conduct presentence hearing emphasis added stroud relevant statute provided every person guilty murder first degree shall suffer death jury may qualify verdict adding thereto without capital punishment whenever jury shall return verdict qualified aforesaid person convicted shall sentenced imprisonment life act mar stat codified currently stroud retrial essentially repeated language statute jury giving guidance appropriate penalty record stroud previous trial judge told jury pretend tell various considerations come determining question proper sentence record stroud pearce convicted assault intent commit rape state crime punishable prison term years stat repealed sess laws ch replaced discussing usual attributes jury sentencing chaffin observed normally way jury place record reasons collective sentencing determination ordinarily resentencing jury informed conduct accused unless relevant question guilt starkly illustrates significant difference sentencing procedure case procedure required missouri capital murder case statute authorizes review whether procedure employed lawful findings made clearly erroneous sentencing discretion abused cases concern application double jeopardy clause sentencing add significantly state argument chaffin relies primarily upon pearce see stroud fact jury may thus mitigate punishment imprisonment life render conviction less one first degree murder stroud jury required find facts addition necessary conviction murder order sentence death difrancesco relies upon history sentencing practices pertinent rulings considerations double jeopardy policy history sentencing practices little assistance missouri case since sentencing procedures capital cases instituted decision furman unique see considerations double jeopardy policy favor petitioner case rather state missouri therefore rely upon difrancesco discussion prior cases discussion relies chiefly upon pearce see sentencing parole release decisions country largely left unfettered discretion officials involved legislatures traditionally set high maximum penalties within judges must choose specific sentences generally provided little guidance exercise choice although purposes sentencing often defined including deterrence retribution incapacitation rehabilitation community condemnation maintain respect law legislatures silent regarding purposes primary conflicts among purposes resolved example federal law currently requires merely determining sentence consider opinion ends justice best interest public effect sentencing policymaking traditionally delegated multitude independent judges exercised context individual cases attempt separate policymaking individual sentencing determinations normally type presentence investigation available attempts provide informational basis intelligent individualized sentencing decision yet factors considered circumstances weighted decisions left solely unfettered discretion individual decisionmakers hoffman stover reform determination prison terms equity determinacy parole release function hofstra rev footnotes omitted conclusion double jeopardy clause issue occasion address petitioner claims sixth eighth fourteenth amendments justice powell chief justice justice white justice rehnquist join dissenting case concerns force double jeopardy clause defendant convicted crime sentenced succeeded conviction reversed holds jury decision petitioner first trial sentence life imprisonment precludes missouri asking jury petitioner second trial sentence death consider opinion irreconcilable principle precedents law double jeopardy clause apply sentencing decisions retrial force applies redeterminations guilt innocence since stroud settled defendant whose conviction reversed may receive severe sentence upon retrial received first trial followed principle north carolina pearce held corollary power retry defendant power upon defendant reconviction impose whatever sentence may legally authorized whether greater sentence imposed first conviction contrast question whether defendant retried murder jury first trial found guilty murder regarded jury verdict implicit acquittal charge first degree murder held double jeopardy clause therefore barred retrial charge green although tension green pearce opinions holdings inconsistent become landmarks law double jeopardy clause cited opinion time time declined reexamine pearce indeed rationale reaffirmed recent cases difrancesco chaffin stynchcombe earlier term stated without qualification difference result reached green pearce explained grounds imposition sentence operate implied acquittal greater sentence difrancesco supra compare ante imposition particular sentence usually regarded acquittal severe sentence emphasis added today applies green principle implicit acquittal sentencing despite pearce unqualified statement difrancesco ii justifies applying principle sentencing case ground missouri death penalty statute establishes certain procedures sentencing phase capital murder trial view procedures give sentencing phase hallmarks trial guilt innocence ante require jury decide whether state proved defendant deserves penalty death ante decision first trial impose life imprisonment reasons reflects decision state failed prove defendant deserves capital punishment according decision implies acquittal harsher sentence characterized jury decision life imprisonment acquittal death sentence recites classic double jeopardy rationale applicable retrying issue guilt innocence green supra applies reconsideration appropriate sentence one whose guilt unquestioned ante without documentation record expense ordeal anxiety resentencing capital murder case great accompany redetermination guilt innocence ante also missouri second attempt obtain death sentence might lead erroneously imposed death sentence ante therefore concludes double jeopardy clause bars missouri seeking death penalty petitioner first time held double jeopardy clause applies equally sentencing determinations guilt innocence heretofore thought fundamental difference two stroud supra north carolina pearce supra chaffin stynchcombe supra difrancesco supra adhere precedents think control case underlying question guilt innocence objective truth defendant fact commit acts constituting crime charged time accused first suspected time decision guilt innocence made criminal justice system designed enable trier fact discover truth according law triers fact err innocent person pronounced guilty contrast law provides limited standards assessing validity sentencing decision sentencer function discover fact mete deserts sees absent mandatory sentence objective measure sentencer decision deemed correct erroneous duly made within authority conferred legislature light difference nature decisions question case frame whether procedures sentencing decision made similar procedures decision guilt innocence made rather question whether reasons considering acquittal guilt innocence absolutely final apply equally sentencing decision imposing less severe sentence authorized law thought pertinence question clear answer consistently given past escaped earlier term difrancesco stated fundamental distinctions sentence acquittal fail recognize ignore particular significance acquittal reasons considering acquittal guilt innocence absolutely final apply equally sentencing decision less severe sentence authorized law retrial defendant found innocent enhanc es possibility even though innocent may found guilty green chaffin stynchcombe held possibility higher sentence recognized accepted pearce legitimate concomitant retrial process possibility higher sentence acceptable double jeopardy clause whereas possibility error guilt innocence second jury sentencing decision correct first jury similarly defendant found innocent forced second time ordeal trial defendant found guilty must bear ordeal sentenced ordeal serving sentence sum find wholly unpersuasive justification applying principle sentencing purport justify conclusion argument facing death sentence second time ordeal legal sense facing sentence second time death sentence course unlike punishment reason read eighth amendment due process clause fourteenth amendment require prescribe unique procedural safeguards protect capricious discriminatory impositions death sentence furman georgia gregg georgia joint opinion death sentence imposed accord strictures eighth amendment fourteenth amendment lawful sentence missouri provides requisite procedures find basis double jeopardy clause single sentence statutorily authorized otherwise may imposed constitutionally nonetheless one guilty defendant may required face twice petitioner ordeal upon retrial different kind defendants chaffin stroud faced possibility death sentence upon reconviction chaffin stynchcombe supra stroud today simply disregards principles established prior cases iii course explaining double jeopardy clause bar retrial reversal trial error stated corresponding right accused given fair trial societal interest punishing one whose guilt clear obtained trial tateo missouri decided death appropriate punishment one whose guilt murder aggravating circumstances made clear special procedures justification constitution barring missouri exacting punishment unless missouri interest conflicts constitutionally protected interests defendant double jeopardy clause protect guilty defendant interest avoiding harsher sentence upon retrial even death sentence therefore dissent pearce stated decision green applicability present problem green decision based upon double jeopardy provision guarantee retrial offense defendant acquitted emphasis original view procedures distinguish case difrancesco chaffin stynchcombe north carolina pearce stroud sentencing decisions made pursuant similar procedures one questions procedures applicable capital cases different analytically difference immaterial purposes double jeopardy clause see infra course sentence imposed upon one commit crime erroneous error inheres decision guilt innocence sentencing decision also sentence may called erroneous grossly disproportionate severity crime committed event sentence cruel unusual violation eighth amendment weems trouble concurring judgment even agreed procedures missouri death penalty statute distinguish case pearce chaffin stroud view first jury decision sentence petitioner life imprisonment rather death reveals state failed prove case petitioner deserved capital punishment premise concludes principle green burks bars second attempt state secure death sentence missouri statute mo rev stat case state prove petitioner committed murder circumstances defined aggravating circumstances warranted imposition death penalty trial expressly instructed jury choose life imprisonment rather death even found beyond reasonable doubt state proved existence gravity circumstances see ante thus jury decision life imprisonment rather death necessarily mean state adduced insufficient evidence sure acquittal question guilt innocence necessarily mean state adduced insufficient evidence yet acquittals final juries instructed question guilt innocence told ignore state evidence jury instructed case significantly less reason assume state failed prove case accordingly less reason consider second attempt obtain death penalty unfair second bite apple burks supra