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decided: May 21, 1973.



Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 58. Marshall, J., filed a dissenting opinion, in Part III of which Stewart, J., joined, post, p. 59.

Author: Powell

[ 412 U.S. Page 47]

 MR. JUSTICE POWELL delivered the opinion of the Court.

A writ of certiorari was granted in this case, 409 U.S. 911 (1972), to decide whether the due process holding of North Carolina v. Pearce, 395 U.S. 711, 723-726 (1969), is to be given retroactive effect. For the reasons that follow, we hold today that this decision is nonretroactive.


Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed

[ 412 U.S. Page 48]

     attack upon two sheriff's deputies. In March 1963 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent's conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 30, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was "based on the nature of the crime and on the impressions which I formed of [respondent] and of the crime."

Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction and approved the higher sentence. 18 Mich. App. 42, 170 N. W. 2d 523 (1969). While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent's second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge's affidavit stated that his sentencing determination was based primarily on (i) his personal belief that respondent's attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent's alibi defense, given under oath, was a "tissue of lies," and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.*fn1

[ 412 U.S. Page 49]

     The Michigan Supreme Court, in a 4-to-3 decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North Carolina v. Pearce, supra. 386 Mich. 84, 191 N. W. 2d 375 (1971). The court recognized that this Court had not yet decided whether Pearce applied to resentencing proceedings which, as in this case, occurred prior to Pearce 's date of decision.*fn2 While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply Pearce to the case then before it "pending clarification" by this Court. Id., at 90 n. 3, 191 N. W. 2d, at 378 n. 2. Before this Court, the State contends that Pearce should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the Pearce test. Because we hold today that Pearce does not apply retroactively, we do not reach the State's second contention.*fn3

[ 412 U.S. Page 50]


In Pearce, the Court emphasized that "it can hardly be doubted" that, while "there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial," it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 395 U.S., at 723. "Vindictiveness" against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, "must play no part in the sentence [a defendant] receives after a new trial." Id., at 725. In so holding, the Court recognized that "fundamental notions of fairness embodied within the concept of due process" absolutely preclude the imposition of sentences based upon such a "'retaliatory motivation.'" Chaffin v. Stynchcombe, ante, at 25. No "new" constitutional rule was thereby established and it cannot be questioned that this basic due process protection articulated

[ 412 U.S. Page 51]

     in Pearce is available equally to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree.

The dispute in this case centers, instead, around the "prophylactic"*fn4 limitations Pearce established to guard against the possibility of vindictiveness in the resentencing process. Those limitations, applicable "whenever a judge imposes a more severe sentence upon a defendant after a new trial," 395 U.S., at 726, require that the sentencing judge's reasons "must affirmatively appear," and that 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." Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce.

The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether "new" constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297 (1967). See also Linkletter v. Walker, 381 U.S. 618, 629, 636 (1965); Tehan v. Shott, 382 U.S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U.S. 719, 726-727 (1966).

The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) "that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence

[ 412 U.S. Page 52]

     he receives after a new trial . . ." and (ii) that apprehension of such vindictiveness would not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction. . . ." 395 U.S., at 725; Colten v. Kentucky, 407 U.S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro : nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce.*fn5 See James v. Copinger, 441 F.2d 23 (CA4 1971).

The first-articulated purpose of the Pearce rules -- to protect against the possibility that actual vindictiveness will infect a resentencing proceeding -- deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application,*fn6 this purpose does not implicate the "'fair determination' of . . . guilt or innocence." Roberts v. Russell, 392 U.S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the "integrity" of one aspect of the judicial process. McConnell v. Rhay, 393 U.S. 2, 3 (1968). The Pearce restrictions serve to ensure

[ 412 U.S. Page 53]

     that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U.S. 436 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U.S. 719 (1966), which held Miranda nonretroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U.S. 213 (1969).

It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda 's well-known warning requirements provided a protection "against the possibility of unreliable statements in every instance of in-custody interrogation," and thereby covered many "situations in which the danger [was] not necessarily as great as when the accused is subjected to overt and obvious coercion." Johnson v. New Jersey, supra, at 730 (emphasis supplied). Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. Id., at 731. Likewise, the retroactive application of Pearce would require the repudiation

[ 412 U.S. Page 54]

     of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in Pearce intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process.*fn7 Absent countervailing considerations rooted in the purposes underlying a new rule, this factor -- that retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been suffered -- points toward a ruling of prospectivity.

Non-retroactivity is also suggested by the second similarity between Miranda and Pearce. While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Pearce. Supra, at 50. Because these foundational rights remain available to defendants in pre- Miranda and pre- Pearce cases, a decision of non-retroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts.*fn8 Linkletter v. Walker, 381 U.S., at 640 (Black, J., dissenting).

[ 412 U.S. Page 55]

     Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing "probabilities." Johnson v. New Jersey, 384 U.S., at 729; Adams v. Illinois, 405 U.S. 278, 281 (1972). Yet in view of the fact that, if retroactive, Pearce would apply to innumerable cases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists,*fn9 we have little doubt that the "probabilities" in this case preponderate in favor of a ruling of non-retroactivity.*fn10

Although the remaining factors -- reliance and burden on the administration of justice -- have been regarded as having controlling significance "only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity," Desist v. United States, 394 U.S. 244, 251 (1969), those considerations also support the non-retroactivity of Pearce. The result in Pearce was not "foreshadowed" by any prior decision of this Court.*fn11 Indeed, prior to Pearce, resentencing judges were bound by no requirement that they articulate their reasons and

[ 412 U.S. Page 56]

     generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See Williams v. New York, 337 U.S. 241 (1949). Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In Pearce itself the Court noted that lower federal and state courts were divided on all of the questions posed. 395 U.S., at 715 n. 5. Under these circumstances, judicial reliance on prior law was certainly justifiable.*fn12

Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentencing with Pearce 's recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the Pearce standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials.*fn13 We cannot say, however, that the potential interference with the administration of justice would be insubstantial if Pearce were applied retroactively. In order to comply with Pearce, a resentencing judge -- assuming he is still on the bench or otherwise available -- would be required to make a factual determination as to the reasons for sentences he may have meted out years in the past.

[ 412 U.S. Page 57]

     Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations.*fn14 Linkletter v. Walker, 381 U.S., at 637. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying Pearce, we have found no such need here. In sum, upon application of the three-part test, we hold that the Pearce requirements are not to be accorded retroactive application.*fn15


Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


386 Mich. 84, 191 N. W. 2d 375, reversed and remanded.

[ 412 U.S. Page 58]

     MR. JUSTICE DOUGLAS, dissenting.

We deal here with the guarantee contained in the Fifth Amendment, applicable to the States by reason of the Fourteenth, Benton v. Maryland, 395 U.S. 784, that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The construction given that clause was applied retroactively in North Carolina v. Pearce, 395 U.S. 711; and I think that Payne as well as Pearce should have the benefit of the "new" constitutional rule. My views have been at odds with those of the Court as witnessed by the dissent of Mr. Justice Black in Linkletter v. Walker, 381 U.S. 618, 640, which I joined, and by my separate dissent in Desist v. United States, 394 U.S. 244, 255. I could understand making a "new" constitutional rule applicable only prospectively. But I cannot bring myself to making the "new" rule applicable to some but not to others. If a State has violated the Federal Constitution in convicting or sentencing a prisoner, I see no way of denying him relief from that unconstitutional trial or unconstitutional sentence.

The Double Jeopardy Clause in my view was designed to discourage the abusive use by the Executive and Judicial Branches of the awesome power of government over the individual. Jeopardy attaches once the trial starts. If there is error in that trial and as a result a new trial is had, the Government cannot impose an added or increased sentence on the second trial. That is my view, as explained in North Carolina v. Pearce, supra, at 726-737. Respondent received a sentence of 19 to 40 years on his first trial and a greater one of 25 to 50 years on his second trial. I therefore would affirm the judgment below.

[ 412 U.S. Page 59]

     MR. JUSTICE MARSHALL, dissenting.

The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North Carolina v. Pearce, 395 U.S. 711 (1969). I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority's desire to punish the defendant for successfully appealing his first conviction.*fn1 I therefore respectfully dissent.


This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne's second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne's appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, 1971. Had the appellate process in Michigan been at all expeditious, this Court might have used Payne's case as the vehicle to decide

[ 412 U.S. Page 60]

     that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce's case and Payne's, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.*fn2 And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule.

The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of "a reasonably based fear of actual vindictiveness," ante, at 52 n. 5, is entitled to review of his conviction. Cf. Fay v. Noia, 372 U.S. 391, 396-397, n. 3 (1963).*fn3 If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be

[ 412 U.S. Page 61]

     subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retroactivity that has the effect of penalizing compliance with state procedural rules.


The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of non-retroactivity.*fn4 I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retroactivity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e. g., Benton v. Maryland, 395 U.S. 784 (1969); Waller v. Florida, 397 U.S. 387 (1970). Those holdings have been made fully retroactive. Ashe v. Swenson, 397 U.S. 436 (1970); Robinson v. Neil, 409 U.S. 505 (1973). Cf. United States v. U.S. Coin & Currency, 401 U.S. 715 (1971). In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the

[ 412 U.S. Page 62]

     acquittal of the defendant. See, e. g., Gideon v. Wainwright, 372 U.S. 335 (1963); In re Winship, 397 U.S. 358 (1970). Those holdings too have been given retroactive effect. Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Ivan V. v. New York, 407 U.S. 203 (1972). Cf. Adams v. Illinois, 405 U.S. 278 (1972). All other constitutional rules of criminal procedure have been given prospective effect only.*fn5

I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of non-retroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court's cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in "applying" a balancing test. Indeed, it might have been thought that

[ 412 U.S. Page 63]

     defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part,*fn6 nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge's lawful discretion.

A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced.*fn7 The Court suggests that such a procedure would "occasion windfall benefits for some defendants who have suffered no constitutional deprivation." Ante, at 53. That assertion must be considered more closely.

As the Court notes, there is little evidence that more severe sentences are often imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure for pre- Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect

[ 412 U.S. Page 65]

     to many of them, it will not be difficult to produce evidence supporting the new sentence. As in Moon v. Maryland, 398 U.S. 319 (1970), and Odom v. United States, 400 U.S. 23 (1970), the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence.

Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to "innumerable" defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and received harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision.*fn8 And the "windfall benefits" would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North Carolina v. Rice, 404 U.S. 244, 247 (1971). The sentence to be served would be one that had already been found appropriate by one

[ 412 U.S. Page 66]

     judge, and would therefore satisfy the various interests advanced by incarceration.*fn9

For these reasons, I dissent.

MR. JUSTICE STEWART joins Part III of this opinion.

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