Cite as: 510 U. S. 222 (1994)
Stevens, J., dissenting
tim—an aggravating circumstance that, in Indiana capital sentencing proceedings, must be established beyond a reasonable doubt. Ind. Code § 35-50-2-9(e)(1) (Supp. 1978). In other words, the judge sentenced Schiro to death because he was guilty of intentional murder, even though the jury had found otherwise. Even though the Court has held that the Constitution does not preclude a judge from overriding a jury's recommendation of a life sentence, Spaziano v. Florida, 468 U. S. 447, 490 (1984), an egregious violation of the collateral estoppel principles embedded in the Double Jeopardy Clause occurs if the judge can base a capital sentence on a factual predicate that the jury has rejected.4 That is what happened here.
II
Having failed to convict Schiro of intentional murder after a full trial, the State plainly could not retry him for that offense after the jury was discharged. An estoppel that would bar a retrial should equally foreclose a death sentence predicated on a postverdict reexamination of the central issue resolved by the jury against the State. Schiro's execution will nonetheless go forward because the trial judge
4 To be sure, it is generally accepted among the Federal Courts of Appeals that a judge may base a sentence in a noncapital case upon factors that the jury did not find beyond a reasonable doubt. See, e. g., United States v. Carrozza, 4 F. 3d 70, 80 (CA1 1993); United States v. Olderbak, 961 F. 2d 756, 764-765 (CA8), cert. denied, 506 U. S. 959 (1992); United States v. Averi, 922 F. 2d 765, 765-766 (CA11 1991); United States v. Rodriguez-Gonzalez, 899 F. 2d 177, 180-182 (CA2), cert. denied, 498 U. S. 844 (1990); United States v. Isom, 886 F. 2d 736, 738-739 (CA4 1989); United States v. Juarez-Ortega, 866 F. 2d 747, 749 (CA5 1989); see also McMillan v. Pennsylvania, 477 U. S. 79 (1986) (applying preponderanceof-evidence standard to sentencing considerations under state mandatory minimum statute satisfies due process). This view stems from the lower standard of proof required to establish sentencing factors in noncapital cases. United States v. Mocciola, 891 F. 2d 13, 16-17 (CA1 1989). But reliance upon this principle cannot sustain such a practice in a capital case where the sentencing factors—just as the elements at trial—must be proved beyond a reasonable doubt.
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