North Carolina v. Pearce
Decided on June 23, 1969; 395 US 711

Two men successfully overturn their convictions,
only to be re-convicted and sentenced to longer punishment


A. Issues Discussed: Criminal Justice (Procedure), 5th Amendment, Double Jeopardy

B. Legal Questions Presented:

1. What are the constitutional limitations on imposing a more severe punishment, after conviction for the same offense, upon retrial?

2. Does the Constitution require that time already served from an original sentence be taken into account when serving a new sentence?


A. Background:

In No. 413, respondent Pearce was convicted in a North Carolina court of assault with the intent to commit rape, and sentenced to 12 to 15 years in prison. After serving several years, the conviction against Pearce was reversed by the Supreme Court of North Carolina, on the ground that an involuntary confession had been admitted unconstitutionally at his trial. Respondent was retried and convicted once again, and the trial judge at his second sentencing ordered him to serve eight years in prison. However, because Pearce had already served several years, the new sentence was effectively longer than the first. The conviction and sentence were upheld on appeal, but in a later habeas corpus proceeding before the United States District Court for the Eastern District of North Carolina, the court held that the sentence imposed after respondent's retrial was "unconstitutional and void." The state court failed to re-sentence Pearce within 60 days of the District Court's decision, and the federal court thus ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit.

In No. 418, respondent Rice pleaded guilty in an Alabama trial court to four separate charges of burglary. He was sentenced to prison terms totaling 10 years. Two years later, the judgments were set aside on the ground that Rice had not been accorded his constitutional right to an attorney.  He was retried on three of the charges, convicted, and sentenced to prison terms totaling 25 years.  No credit was given for the time he had spent in prison on the original judgments. Rice then brought a habeas corpus proceeding in the United States District Court for the Middle District of Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison and in imposing grossly harsher sentences upon retrial.  The District Court held that Rice had been denied due process of law because the State of Alabama was punishing Rice for "having exercised his post-conviction right of review and for having the original sentences declared unconstitutional."  The Court of Appeals for the Fifth Circuit affirmed.

The US Supreme Court granted certiorari to review both cases consolidated.
B. Counsel of Record:
Opposing Side
Larry B. Sitton argued the cause and filed a brief for respondent.

Andrew A. Vanore, Jr., argued the cause for petitioners. With him on the brief was Thomas Wade Bruton, Attorney General of North Carolina;

The brief was also joined by the Attorneys General for their respective states as follows: MacDonald Gallion of Alabama, David P. Buckson of Delaware, John B. Breckinridge of Kentucky, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, Joe T. Patterson of Mississippi, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, William C. Sennett of Pennsylvania, Herbert F. DeSimone of Rhode Island, Daniel R. McLeod of South Carolina, George F. McCanless of Tennessee, Crawford C. Martin of Texas, Bronson C. LaFollette of Wisconsin, and James E. Barrett of Wyoming; and Paul J. Abbate, Attorney General, for the Territory of Guam.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
 William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amici curiae in both cases, urging affirmance. Robert C. Londerholm, Attorney General, and Edward G. Collister, Jr., Assistant Attorney General, filed a brief for the State of Kansas, as amicus curiae, urging reversal.

"We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited' in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned - by subtracting them from whatever new sentence is imposed.

We turn to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received...

We hold ­that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.'

...To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remains for consideration the impact of the Due Process Clause of the Fourteenth Amendment.

It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, 'penalizing those who choose to exercise' constitutional rights, 'would be patently unconstitutional.'

...Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial... In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding...

We dispose of the two cases before us in the light of these conclusions... We conclude that in each of the cases before us, the judgment should be affirmed."
Justice Vote: 7 Pro vs. 2 Con

  • Stewart, P. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Marshall, T. Pro (Joined Douglas' concurring opinion)
  • White, B. Pro (Wrote opinion concurring in part)
  • Black, H. Con (Wrote opinion dissenting in part)
  • Harlan, J. Con (Wrote opinion dissenting in part)

The ACLU filed as amicus urging affirmance; The US Supreme Court affirmed the ruling of the United States Courts of Appeals for the Fourth and Fifth Circuit in a 7-2 vote, giving the ACLU an apparent win.