NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

    1.11 Double Jeopardy Considerations
            1.11.1  Double Jeopardy Considerations: Generally
            1.11.2  Resentencing To Death After Appeal
            1.11.3  Sentencing For Murders Including Felonies
            1.11.4  Sentencing To Death After Breach Or Withdrawal Of Plea Agreement
            1.11.5  Prosecutions By Different Sovereigns For Same Conduct
            1.11.6  Judicial Override Of Jury Life Sentence

The double jeopardy clause of the Fifth Amendment protects an individual against both multiple prosecutions and punishments for the same offense. Because of the unique nature of capital proceedings, double jeopardy issues in death penalty cases form a separate body of case law.

William S. McAninch, Unfolding the Law of Double Jeopardy, 44 S.C. L. Rev. 411, 483–89 (1993) (including summary of double jeopardy issues in general as well as capital sentencing procedures).  

In non-capital cases, because imposing one sentence does not imply an acquittal of a greater sentence, double jeopardy is not violated by an appeal of a sentence or an increase of a sentence by an appellate court. In capital cases, however, this general rule does not apply. In Bullington v. Missouri, 451 U.S. 430 (1981), the Supreme Court held that one who is accused of a capital crime but sentenced to life may not be sentenced to death on retrial. This rule is attributed to the unique, trial-like nature of capital sentencing proceedings. If the state carries the burden of establishing aggravating circumstances beyond a reasonable doubt in a sentencing proceeding, that proceeding is regarded as a second trial. Thus, a sentence of life imprisonment amounts to an implied acquittal for the alternative sentence of death and any attempt to impose the death sentence after that would violate double jeopardy. This analysis applies even when the initial life sentence is made in error. Arizona v. Rumsey, 467 U.S. 203 (1984).

In Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), the Supreme Court noted that it had held in Bullington v. Missouri, that the Double Jeopardy Clause applies to capital-sentencing proceedings that “have the hallmarks of the trial on guilt or innocence.” In Sattazahn, the Court held that the relevant inquiry is not whether a defendant received a life sentence the first time around, but whether a first life sentence was an “acquittal” based on findings sufficient to establish legal entitlement to the life sentence; i.e., findings that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt. The Court held that where, as here, a defendant who is convicted of murder and sentenced to life imprisonment succeeds in having the conviction set aside on appeal, jeopardy has not terminated, so that a life sentence imposed in connection with the initial conviction raises no double-jeopardy bar to a death sentence on retrial.

When the initial sentence is one of death rather than life imprisonment, the death sentence may be imposed on retrial. Even if the initial death sentence was erroneous, double jeopardy does not prevent a later death sentence. Thus, in Hitchcock v. Dugger, 481 U.S. 393 (1987), the Court found that the death penalty could be imposed on remand even though the initial death sentencing court improperly refused to consider mitigating evidence. Likewise, the Court did not prohibit a death sentence in Poland v. Arizona, 476 U.S. 147 (1986), where the first trial court imposed a capital sentence based on an unsupported aggravating circumstance.

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (holding that relevant inquiry for double jeopardy purposes is not whether a defendant received a life sentence the first time around, but whether a first life sentence was an “acquittal” based on findings sufficient to establish legal entitlement to the life sentence; holding that here, petitioner could not establish that the jury or the court “acquitted” him during his first capital  sentencing proceeding where the verdict form returned showed the jury deadlocked 9-to-3 on whether to impose the death penalty, and it made no findings as to the alleged aggravating circumstances).

Hitchcock v. Dugger, 481 U.S. 393 (1987) (allowing death penalty on remand where initial sentencing court improperly refused to consider mitigating evidence not listed in statute).

Poland v. Arizona, 476 U.S. 147 (1986) (holding double jeopardy does not preclude death sentence where evidence insufficient to support aggravating circumstance on which initial sentencer relied, but not insufficient to support death sentence altogether, where other aggravating circumstances alleged but not relied on).

Arizona v. Rumsey, 467 U.S. 203 (1984) (following Bullington, holding double jeopardy prohibits death sentence on reconviction where initial sentencer misinterpreted aggravating circumstance; error of law does not change double jeopardy effects of judgment amounting to acquittal).

Bullington v. Missouri, 451 U.S. 430 (1981) (holding double jeopardy bars imposition of death sentence at retrial of capital charge where initial sentencing proceeding resulted in life sentence; trial-like nature of sentencing proceeding amounts to acquittal of death sentence).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding trial judge’s rejection of aggravating circumstance in initial capital murder prosecution does not constitute “acquittal” of that circumstance for double jeopardy purposes and does not foreclose consideration of it at retrial), cert. denied, 523 U.S. 1082 (1998).

Cuffle v. Goldsmith, 906 F.2d 385, 390 (9th Cir. 1990) (applying Rumsey to hold life sentence imposed after capital sentencing proceeding triggers double jeopardy and prohibits death penalty on retrial).

Massie v. Hennessey, 875 F.2d 1386, 1389 (9th Cir. 1989) (holding double jeopardy does not apply to California death sentence where state has automatic appeal of death penalty cases, because no expectation of finality in sentence, despite defendant’s objection to the mandatory appeal), cert. denied, 494 U.S. 1039 (1990).

Fitzpatrick v. McCormick, 869 F.2d 1247 (9th Cir.) (following Bullington), cert. denied, 493 U.S. 872 (1989).

Staatz v. Dupnik, 789 F.2d 806, 808 (9th Cir. 1986) (holding double jeopardy does not prevent retrial of defendant who has succeeded in getting first conviction set aside).

Knapp v. Cardwell, 667 F.2d 1253, 1263-65 (9th Cir.) (holding first death sentence was not “acquittal” on certain aggravating factors; distinguishing Bullington on grounds that first trial there resulted in life sentence and penalty phase in Bullington was more like a trial than Arizona’s penalty phase which involves only judge), cert. denied, 459 U.S. 1055 (1982).

Although the double jeopardy clause prohibits prosecution for both felony-murder and an underlying felony, it does not prohibit prosecution for intentional murder and a felony committed as part of that same act. Moreover, where the state charges felonymurder and intentional murder, and a defendant is found guilty based on the felonymurder, double jeopardy does not prohibit the use of the intentional-murder aggravating circumstance, if applicable, at sentencing.

Schiro v. Farley, 510 U.S. 222 (1994) (holding jury verdict of guilty of felony-murder, one of three murder counts, did not amount to acquittal of other counts and thus double jeopardy did not prohibit use of intentional-murder aggravating circumstance at sentencing).

Taylor v. Whitley, 933 F.2d 325 (5th Cir. 1991) (holding, although double jeopardy clause prohibits prosecution for both felony-murder and underlying felony, it does not prohibit prosecution for specific intent murder and armed robbery), cert. denied, 503 U.S. 988 (1992).

Double jeopardy does not prevent the imposition of a death sentence upon retrial of a defendant who has previously pled guilty to a lesser charge (not carrying the death penalty) and has subsequently withdrawn or breached the plea agreement.

Ricketts v. Adamson, 483 U.S. 1 (1987) (holding defendant sentenced to life imprisonment pursuant to plea agreement was subject to reprosecution and resentencing for capital murder because defendant waived double jeopardy defense by breaching agreement in which consequences of breach were clearly expressed in agreement).

Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988) (allowing death sentence sought after defendant voluntarily withdrew guilty plea to manslaughter), cert. denied, 494 U.S. 1090 (1990).

The dual sovereignty doctrine provides that when a defendant violates the law of two sovereigns with a single act, that act constitutes two distinct offenses for double jeopardy purposes, and double jeopardy thus does not bar successive prosecutions, even capital prosecutions, for that conduct. The accused has no right to control the order of prosecution or punishment.

Koon v. United States, 518 U.S. 81 (1996) (relying on Heath in deciding in a noncapital case that successive prosecutions in state and federal courts for the same underlying conduct did not violate the Double Jeopardy Clause).

Heath v. Alabama, 474 U.S. 82 (1986) (holding prosecution and death sentence in Alabama for murder for which defendant had been convicted and sentenced to death in Georgia not barred by double jeopardy).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding meritless petitioner’s claim that Arizona cannot impose death penalty until federal sentence concluded), cert. denied, 523 U.S. 1082 (1998).

The Supreme Court has upheld state sentencing schemes involving judicial overrides of jury-recommended sentences. Even when such judicial override involves the imposition of the death penalty over a jury recommendation of a life sentence, the double jeopardy clause is not violated. The Court has held, in Spaziano v. Florida, 468 U.S. 447 (1984), that since jury recommendations are not judgments, they do not trigger double jeopardy.

However, in Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See § 4.6.1 for further discussion of Ring.

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton and Apprendi are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty). 

Harris v. Alabama, 513 U.S. 504 (1995) (holding Alabama system of judicial override of jury recommendation of life or death does not violate Eighth Amendment by not specifying weight judge must give to jury’s recommendation).

Schiro v. Farley, 510 U.S. 222 (1994) (allowing judge-imposed death sentence over jury rejection of capital punishment).

Spaziano v. Florida, 468 U.S. 447 (1984) (state law that allows judge to override jury’s recommendation of life sentence does not constitute double jeopardy).

Neil R. Lebowitz, Note, Harris v. Alabama: Standardless Jury Override in Capital Cases Deemed Constitutional, 7 Md. J. Contemp. Legal Issues 515 (1996) (analyzing strengths, weaknesses, implications of principles set forth in Harris).

Michael Mello & Ruthann Robson, Judge over Jury: Florida’s Practice of Imposing Death over Life in Capital Cases, 13 Fla. St. U. L. Rev. 31 (1985) (analyzing Florida’s policy of allowing judicial imposition of death penalty over jury recommendation of life imprisonment, reviewing Spaziano, policy considerations mitigating against retention of override policy).

David A. Scheffel, Harris v. Alabama–A Portrait of Deference to the States in Capital Punishment, 19 Thomas Jefferson L. Rev. 39 (1997) (analyzing Harris).

Jeffrey A. Wellek, Note, Eighth Amendment–Trial Court May Impose Death Sentence Despite Jury’s Recommendation of Life Imprisonment, 75 J. Crim. L. & Criminology 813 (1984) (reviewing Spaziano and arguing Florida death penalty statute violates Eighth Amendment because question of life or death must be left to jury).