124
Ginsburg, J., dissenting
ment is surely engaged here. Sattazahn's life sentence had significantly greater finality than the dismissal for preindictment delay in Scott, for under Pennsylvania law, as noted earlier, see supra, at 118, the government could not have sought to retry the sentencing question even through an appeal.
Moreover—and discrete from the Court's analysis in Scott—the perils against which the Double Jeopardy Clause seeks to protect are plainly implicated by the prospect of a second capital sentencing proceeding. A determination that defendants in Sattazahn's position are subject to the "ordeal" of a second full-blown life or death trial "compel[s] [them] to live in a continuing state of anxiety and insecurity." Green, 355 U. S., at 187.4
Despite the attendant generation of anxiety and insecurity, we have allowed retrial after hung jury mistrials in order to give the State "one complete opportunity to convict those who have violated its laws." Washington, 434 U. S., at 509; see Wade, 336 U. S., at 689 ("a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments"). But here, the Commonwealth has already had such an opportunity: The prosecution presented its evidence to the jury, and after the jury deadlocked, final judgment was entered at the direction of the state legislature itself. This was not an instance in which "the Government was quite willing to continue with its production of evidence," but was thwarted by a defense-proffered motion. Scott, 437 U. S., at 96.
4 The Court identifies policy reasons why a legislature might prefer to provide for the entry of a judgment that could be reopened should the defendant mount a successful appeal. See ante, at 110, 115. It does not automatically follow, however, that such a provisional judgment would be compatible with the Double Jeopardy Clause. Cf. infra, at 127 (urging that the prospect of a second death penalty proceeding heightens double jeopardy concerns).
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007