Schiro v. Farley, 510 U.S. 222, 10 (1994)

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Cite as: 510 U. S. 222 (1994)

Opinion of the Court

sentencing proceeding conduct for which he was previously tried. Spencer v. Texas, 385 U. S. 554, 560 (1967). Cf. Moore v. Missouri, 159 U. S. 673, 678 (1895) ("[T]he State may undoubtedly provide that persons who have been before convicted of a crime may suffer severer punishment for subsequent offences than for a first offence"). In short, as applied to successive prosecutions, the Clause "is written in terms of potential or risk of trial and conviction, not punishment." Price v. Georgia, 398 U. S. 323, 329 (1970).

Our decision in Bullington v. Missouri, 451 U. S. 430 (1981), is not to the contrary. Bullington was convicted of capital murder. At the first death penalty sentencing proceeding, the jury rejected the death penalty and sentenced him to a term of years. The conviction was overturned; on resentencing the State again sought the death penalty. In Bullington we recognized the general rule that "the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial." Id., at 438. Nonetheless, we recognized a narrow exception to this general principle because the capital sentencing scheme at issue "differ[ed] significantly from those employed in any of the Court's cases where the Double Jeopardy Clause has been held inapplicable to sentencing." Ibid. Because the capital sentencing proceeding "was itself a trial on the issue of punishment," ibid., requiring a defendant to submit to a second, identical proceeding was tantamount to permitting a second prosecution of an acquitted defendant, id., at 446.

This case is manifestly different. Neither the prohibition against a successive trial on the issue of guilt nor the Bull-ington prohibition against a second capital sentencing proceeding is implicated here—the State did not reprosecute Schiro for intentional murder, nor did it force him to submit to a second death penalty hearing. It simply conducted a single sentencing hearing in the course of a single prosecution. The state is entitled to "one fair opportunity" to prosecute a defendant, Bullington, supra, at 446 (internal quota-


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