238
Blackmun, J., dissenting
of receiving the death penalty as he stands to receive the recommendation of the jury." Schiro v. State, 451 N. E. 2d 1047, 1065 (Ind. 1983) (citation omitted).
The "unique" nature of modern capital sentencing proceedings identified in Bullington, 451 U. S., at 442, n. 15, derives from the fundamental principle that death is "different," see, e. g., Gardner v. Florida, 430 U. S. 349, 357 (1977) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion); see also Furman v. Georgia, 408 U. S. 238, 306 (1972) (Stewart, J., concurring), and that heightened reliability is required at all stages of the capital trial. The "trial-like" nature of Schiro's capital sentencing proceeding, and the trauma he necessarily underwent in defending against the sentence of death, are directly analogous to guilt-phase proceedings and thus bring the Double Jeopardy Clause into play.
Even if the issue of Schiro's intent to kill was not "actually and necessarily decided" for collateral estoppel purposes, ante, at 236, the jury's failure to convict Schiro of intentional murder impliedly acquitted him under the Double Jeopardy Clause. See Green v. United States, 355 U. S. 184, 191 (1957) ( jury "was given a full opportunity to return a verdict"); Price v. Georgia, 398 U. S. 323, 329 (1970). As Justice Stevens pointedly notes, post, at 243, there is no question that Schiro could not have been reprosecuted for intentional murder. Nor is there any question that the aggravator required the prosecution to prove again at sentencing, beyond a reasonable doubt, the identical elements of that murder charge. Thus, "the jury ha[d] already acquitted the defendant of whatever was necessary to impose the death sentence." 451 U. S., at 445. Over a unanimous jury recommendation of life and after a State Supreme Court remand, the trial judge condemned Schiro to death in reliance nunc pro tunc on the very conduct for which Schiro had been acquitted. This sentence cannot be tolerated under the Double Jeopardy Clause.
I respectfully dissent.
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