Journal of Criminal Law and Criminology Volume 75 Article 9 Issue 3 Fall Fall 1984 Fifth Amendment--Sentence Enhancement: Rethinking the Pearce Prophylactic Rule Allan S. Brilliant Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Allan S. Brilliant, Fifth Amendment--Sentence Enhancement: Rethinking the Pearce Prophylactic Rule, 75 J. Crim. L. & Criminology 716 (1984) This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/84/7503-716 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 75, No. 3 Copyright 0 1984 by Northwestern University School of Law Prntedin U.S.A. FIFTH AMENDMENT-SENTENCE ENHANCEMENT: RETHINKING THE PEARCE PROPHYLACTIC RULE Wasman v. United States, 104 S. Ct. 3217 (1984). I. INTRODUCTION In Wasman v. United States ,1 the Supreme Court held that impos- ing a harsher sentence on a defendant following a successful appeal and retrial does not violate the due process clause of the fifth amendment if the court imposing the second sentence considered an intervening criminal conviction for acts committed prior to the original sentencing.2 The Court's holding is consistent with the Court's earlier determination in North Carolina v. Pearce3 that a sen- tence enhancement offends due process only if the sentencing body is motivated by actual vindictiveness or if the enhancement will lead to the apprehension of vindictiveness. 4 The Supreme Court's deci- sion in Wasman, however, is not consistent with the Court's prior concerns with free and unfettered access to appeals. 5 This Note argues that for the purposes of justifying an en- hanced sentence, a defendant's conduct subsequent to the original sentencing can be distinguished logically from intervening criminal convictions for defendant's conduct prior to the original sentencing. This Note recognizes, however, that this distinction is grounded in policy and not law. The Supreme Court's determination that events such as inter- vening criminal convictions may justify sentence enhancements in- ' 104 S. Ct. 3217 (1984). 2 Id. at 3225. 3 395 U.S. 711 (1969). 4 Id. at 725. 5 See, e.g., Green v. United States, 355 U.S. 184, 193 (1957) (law should not place defendants in dilemma of having to take a "desperate chance" and barter their "consti- tutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction"); Chichos v. Indiana, 385 U.S. 76, 82 (1966) (Fortas, J., dissenting) ("Fourteenth Amendment's requirement of due process, in my view, certainly and clearly includes a prohibition of this kind of heads-you-lose, tails-you-lose trial and appellate process," in that it has the effect of burdening and penalizing the exercise of the right to seek review of criminal conviction). 716 1984] SENTENCE ENHANCEMENT 717 creases the "opportunity for unfairness. ' 6 It will allow vindictive judges to retaliate against criminals who have successfully appealed their convictions by enhancing the criminals' sentences. Judges can then justify the sentence enhancements by citing the criminals' con- duct that occurred before the criminals' original sentencing. The ability ofjudges to mask their true intentions behind events such as intervening convictions may cause defendants to fear vindictiveness and ultimately may chill defendants' decisions to appeal their convictions. II. BACKGROUND A well-established part of American jurisprudence is that the government may retry defendants who have succeeded in having their convictions set aside on appeal. 7 The Supreme Court first ap- proved of sentence enhancement after reconviction in the landmark case of Stroud v. United States .8 Robert Stroud was convicted of the murder of a prison guard and sentenced to be hanged. 9 The United States District Attorney confessed error, and the Circuit Court of Appeals granted Stroud a new trial. 10 The jury at the second trial found Stroud guilty of mur- der, but recommended against capital punishment." On appeal, the district court reversed the judgment once more for error, and Stroud was tried a third time.' 2 The jury found Stroud guilty one last time, but made no recommendation for his sentence. Thejudge sentenced Stroud to death.' 3 The Supreme Court affirmed the trial court's imposition of the death penalty, finding that the sentence enhancement did not violate the defendant's constitutional right against doublejeopardy.14 The Court relied on a waiver theory and reasoned that because the defendant initiated the action to reverse the original conviction, he could claim no right to the original 6 Patton v. North Carolina, 381 F.2d 636, 641 (4th Cir. 1967), cert. denied, 390 U.S. 905 (1968). 7 See, e.g., North Carolina v. Pearce, 395 U.S. 711, 719-20 (1969) (this is the seminal sentence enhancement case); United States v. Tateo, 377 U.S. 463, 465 (1963) (fifth amendment double jeopardy provision does not preclude government from retrying a defendant whose conviction is set aside because of trial error). 8 251 U.S. 15 (1919). 9 Id. at 16. See also T. GADDIS, BIRDMAN OF ALCATRAZ (1955) (biography of the ex- traordinary life of Robert Stroud, who was more popularly known as the Birdman of Alcatraz). 10 Stroud, 251 U.S. at 16-17. 11 Id. at 17. 12 Id. 13 Id. 14 Id. at 18. 718 SUPREME COURT REVIEW [Vol. 75 sentence. 15 Although the Supreme Court has never overruled Stroud, the Supreme Court has held, in a case with a very similar fact pattern, that the constitutional guarantee against double jeopardy will be vi- olated if a defendant is found guilty of second degree murder in the first trial and found guilty of first degree murder in the second trial.' 6 The Supreme Court in Green v. United States held that a con- viction for second degree murder is an implied acquittal of first de- gree murder.' 7 The Court found that it would constitute double jeopardy to force the defendant to stand trial for first degree murder after having been acquitted of that offense. 18 The Green decision effectively eliminated sentence enhancements where the judge justi- fied the enhancement by citing new findings of fact that may lead to conviction of a greater offense. The lawfulness of sentence enhancements was questioned fol- lowing the retroactive application of the Supreme Court's landmark decision in Gideon v. Wainwright, 19 which granted new trials to all felons who were denied their right to counsel at trial. 20 Following Gideon, many petitioners were retried and reconvicted. Courts sen- tenced many petitioners to longer prison terms than they had re- ceived at their first trial or denied petitioners credit for time already served. 2' Other petitioners, fearing increased sentences following retrial, did not exercise their right to new trials.22 The judiciary, the American Bar Association, and the academic community responded to what they perceived to be an unjust chill- ing of prisoners' rights to free and unfettered appeals. One state judiciary reacted by declaring sentence enhancements following re- conviction unconstitutional, 23 while others found them simply to be against judicial policy.2 4 The American Bar Association Advisory 15 Id. 16 Green v. United States, 355 U.S. 184 (1957). 17 Id. at 190-91. 18 Id. at 190. 19 372 U.S. 335 (1963). 20 Id. at 345. 21 In Florida alone, over 5500 inmates had filed petitions seeking new trials within 20 months of the Supreme Court decision in Gideon. Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 YALE LJ. 606, 606 n.4 (1965); Com- ment, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained Under Traditional Waiver Theory, 1965 DUKE LJ. 395, 395 n.2. 22 See infra note 67. 23 People v. Henderson, 60 Cal. 2d 482, 386 P.2d 677, 35 Cal. Rptr. 77 (1963) (sen- tence enhancements violated state double jeopardy clause). 24 State v. Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968) (fundamentally unfair to discourage appeals through threat of enhanced sentence); State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966) (sentence enhancements violate public policy ofjudicial adminis- 1984] SENTENCE ENHANCEMENT 719 Committee on Sentencing and Review,25 as well as legal commenta- tors,26 published articles and studies condemning the injustice of placing defendants in a dilemma with regard to their right to appeal. The Bar Association Committee and legal commentators called for 27 legislation to eliminate sentence enhancements altogether. The Supreme Court considered the question of the constitu- tionality of sentence enhancements in North Carolina v. Pearce .28 A North Carolina court convicted Pearce of assault with intent to com- mit rape and sentenced him to prison for a term of twelve to fifteen years. 29 Several years later, Pearce appealed on the ground that the court had acted unconstitutionally by admitting an involuntary con- fession into evidence.30 Pearce was granted a new trial, reconvicted, and given a new sentence. The new sentence, when added to the time that Pearce had already served in prison, amounted to a sen- 3 tence greater than the one that originally had been imposed. ' Pearce then filed a habeas corpus petition alleging that the longer sentence imposed upon reconviction was "unconstitutional and 2 void."3 The United States Supreme Court in Pearce rejected the argu- ment that it was dealing with increases in existing sentences. The Court instead reasoned that the new trial resulted in a new sentence because it eliminated the first sentence.33 The Court held, more- over, that neither the double jeopardy provision nor the equal pro- tection clause imposes an absolute bar to a harsher sentence upon tration); State v.