118
Ginsburg, J., dissenting
retrial of the appropriateness of the death penalty"). In short, the jury did not "acquit" petitioner of the death penalty under Bullington and Rumsey.
That Pennsylvania law mandates a life sentence when a capital sentencing jury deadlocks does not, for the reasons given by the Court, ante, at 110, transform that life sentence into a death penalty acquittal. Because petitioner was neither acquitted nor convicted of the death penalty in his first trial, the Double Jeopardy Clause was not offended by a re-trial to determine whether death was the appropriate punishment for his offenses. There is no need to say more.
Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.
This case concerns the events that "terminat[e] jeopardy" for purposes of the Double Jeopardy Clause. Richardson v. United States, 468 U. S. 317, 325 (1984). The specific controversy before the Court involves the entry of final judgment, as mandated by state law, after a jury deadlock. The question presented is whether a final judgment so entered qualifies as a jeopardy-terminating event. The Court concludes it does not. I would hold that it does.
When a Pennsylvania capital jury deadlocks at the sentencing stage of a proceeding, state law requires the trial court to enter a judgment imposing a life sentence. See Pa. Stat. Ann., Tit. 42, § 9711(c)(1)(v) (Purdon Supp. 2002). Ordinarily, a judgment thus imposed is final. The government may neither appeal the sentence nor retry the sentencing question before a second jury. See Brief for Petitioner 7; Tr. of Oral Arg. 26. The sentencing question can be retried—if retrial is not barred by the Double Jeopardy Clause—only if the defendant successfully appeals the underlying conviction and is convicted again on retrial.1
1 When a typical criminal jury is unable to agree on a verdict, in contrast, the judge declares a mistrial and the prosecutor has the immediate right to reprosecute the counts on which the jury hung. See, e. g., Rich-
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