418
Ginsburg, J., dissenting
would have to be held in front of a second jury impaneled for that purpose." Id., at 243.21 But the FDPA, it seems to me clear, does not provide for a second shot at death. The dispositive provision, as I read the Act, is § 3594, which first states that the court shall sentence the defendant to death or life imprisonment without possibility of release if the jury so recommends, and then continues:
"Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release." 18 U. S. C. § 3594.
The "[o]therwise" clause, requiring judge sentencing, becomes operative when a jury fails to make a unanimous recommendation at the close of deliberations. The Fifth Circuit's attention was deflected from the § 3594 path by § 3593(b)(2)(C), which provides for a sentencing hearing "be-fore a jury impaneled for the purpose of the hearing if . . . the jury that determined the defendant's guilt was discharged for good cause." Discharge for "good cause" under § 3593(b)(2)(C), however, is most reasonably read to cover guilt-phase (and, by extension, penalty-phase) juror disqualification due to, e. g., exposure to prejudicial extrinsic information or illness. The provision should not be read expansively to encompass failure to reach a unanimous life or death decision.
The Government refers to a "background rule" allowing retrial if the jury is unable to reach a verdict, and urges that
21 At oral argument, counsel for the United States maintained that it would be up to the prosecutor, when a jury is deadlocked, to request a new panel or to allow the judge to decide on the sentence. See Tr. of Oral Arg. 41. But this could be done only once, the Government maintained: In the event of a second deadlock, it would be the court's obligation to impose the sentence. See id., at 46.
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