Cite as: 527 U. S. 373 (1999)
Ginsburg, J., dissenting
the FDPA should be read in light of that rule. Brief for United States 29. But retrial is not the prevailing rule for capital penalty-phase proceedings. As the Government's own survey of state laws shows, in life or death cases, most States require judge sentencing once a jury has deadlocked. See id., at 32; App. to Brief for United States 1a-6a (identifying 25 States in which the court imposes sentence upon deadlock and three States in which a new sentencing hearing is possible); see also Acker & Lanier, Law, Discretion, and the Capital Jury: Death Penalty Statutes and Proposals for Reform, 32 Crim. L. Bull. 134, 169 (1996) ("In twenty-five of the twenty-nine states in which capital juries have final sentencing authority, . . . a deadlocked sentencing jury is transformed into a 'lifelocked' jury. That is, the jury's inability to produce a unanimous penalty-phase verdict results in the defendant's being sentenced to life imprisonment or life imprisonment without parole." (footnotes omitted)).
Furthermore, at the time Congress adopted the FDPA, identical language in the predecessor Anti-Drug Abuse and Death Penalty Act of 1988 had been construed to mandate court sentencing upon jury deadlock. See United States v. Chandler, 996 F. 2d 1073, 1086 (CA11 1993) ("If the jury does not [recommend death], the district court sentences the defendant."); United States v. Pitera, 795 F. Supp. 546, 552 (EDNY 1992) ("Absent a recommendation of death, the court must sentence a defendant.").22 The House Report suggests that Congress understood and approved that construction. See H. R. Rep. No. 103-467, p. 9 (1994) ("If the jury is not
22 Like the FDPA, the Anti-Drug Abuse Act provides for a new sentencing jury if the guilt-phase jury "has been discharged for good cause," 21 U. S. C. § 848(i)(1)(B)(iii), and states, immediately after providing for the death sentence upon jury recommendation, that "[o]therwise the court shall impose a sentence, other than death, authorized by law," § 848(l). Under the Anti-Drug Abuse Act, unlike the FDPA, the only binding recommendation the jury can make is for death.
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