Cite as: 537 U. S. 101 (2003)
Ginsburg, J., dissenting
We have previously declined to interpret the Double Jeopardy Clause in a manner that puts defendants in this bind. In Green, we rejected the argument that appealing a second-degree murder conviction prolonged jeopardy on a related first-degree murder charge. We noted that a ruling on this question in favor of the prosecutor would require defendants to "barter [their] constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense." Id., at 193. "The law," we concluded, "should not . . . place [defendants] in such an incredible dilemma." Ibid. Although Sattazahn was required to barter a state-law entitlement to life against his right to appeal, rather than a constitutional protection, I nevertheless believe the considerations advanced in Green should inform our decision here.
Second, the punishment Sattazahn again faced on retrial was death, a penalty "unique in both its severity and its finality." Monge v. California, 524 U. S. 721, 732 (1998) (internal quotation marks omitted). These qualities heighten Sattazahn's double jeopardy interest in avoiding a second prosecution. The "hazards of [a second] trial and possible conviction," Green, 355 U. S., at 187, the "continuing state of anxiety and insecurity" to which retrial subjects a defendant, ibid., and the "financial" as well as the "emotional burden" of a second trial, Washington, 434 U. S., at 503-504, are all exacerbated when the subsequent proceeding may terminate in death. Death, moreover, makes the "dilemma" a defendant faces when she decides whether to appeal all the more "incredible." Green, 355 U. S., at 193. As our elaboration in Gregg v. Georgia, 428 U. S. 153, 188 (1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.), and later cases demonstrates, death is indeed a penalty "different" from all others.
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