dissenting.
We deal here with the guarantee contained in the Fifth Amendment, applicable to the States by reason of the Fourteenth, Benton v. Maryland, 395 U. S. 784, that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The construction given that clause was applied retroactively in North Carolina v. Pearce, 395 U. S. 711; and I think that Payne as well as Pearce should have the benefit of the “new” constitutional rule. My views have been at odds with those of the Court as witnessed by the dissent of Mr. Justice Black in Linkletter v. Walker, 381 U. S. 618, 640, which I joined, and by my separate dissent in Desist v. United States, 394 U. S. 244, 255. I could understand making a “new” constitutional rule applicable only prospectively. But I cannot bring myself to making the “new” rule applicable to some but not to others. If a State has violated the Federal Constitution in convicting or sentencing a prisoner, I see no way of denying him relief from that unconstitutional trial or unconstitutional sentence.
The Double Jeopardy Clause in my view was designed to discourage the abusive use by the Executive and Judicial Branches of the awesome power of government over the individual. Jeopardy attaches once the trial starts. If there is error in that trial and as a result a new trial is had, the Government cannot impose an added or increased sentence on the second trial. That is my view, as explained in North Carolina v. Pearce, supra, at 726-737. Respondent received a sentence of 19 to 40 years on his first trial and a greater one of 25 to 50 years on his second trial. I therefore would affirm the judgment below.