concurring.
Although I agree with the Court as to the reach of due process, I would go further. It is my view that if for any reason a new trial is granted and there is a convic*727tion a second time, the second penalty imposed cannot exceed the first penalty, if respect is had for the guarantee against double jeopardy.
The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct. It may be a year to 25 years, or 20 years to life, or death. He risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again. And the fact that he takes an appeal does not waive his constitutional defense of former jeopardy to a second prosecution. Green v. United States, 355 U. S. 184, 191-193.
In the Green case, the defendant was charged with arson on one count and on a second count was charged with either first-degree murder carrying a mandatory death sentence, or second-degree murder carrying a maximum sentence of life imprisonment. The jury found him guilty of arson and second-degree murder but the verdict was silent as to first-degree murder. He appealed the conviction and obtained a reversal. On a remand he was tried again. This time he was convicted of first-degree murder and sentenced to death— hence his complaint of former jeopardy. We held that the guarantee of double jeopardy applied and that the defendant, having been “in direct peril of being convicted and punished for first degree murder at his first trial” could not be “forced to run the gantlet” twice. 355 U. S., at 190.
It is argued that that case is different because there were two different crimes with different punishments provided by statute for each one. That, however, is a matter of semantics. “It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or *728allows the court or jury to fix different punishments for the same crime.” People v. Henderson, 60 Cal. 2d 482, 497, 386 P. 2d 677, 686 (1963) (Traynor, J.).
From the point of view of the individual and his liberty, the risk here of getting from one to 15 years for specified conduct is different only in degree from the risk in Green of getting fife imprisonment or capital punishment for specified conduct. Indeed, that matter was well understood by the dissenters in Green:
“As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment.” 355 U. S., at 213 (Frankfurter, J., dissenting).1
The defendants in the present cases at the first trial faced the risk of maximum punishment and received less. In the second trial they were made to run the gantlet twice, since the Court today holds that the penalties can be increased.
It was established at an early date that the Fifth Amendment was designed to prevent an accused from *729running the risk of “double punishment.” United States v. Ewell, 383 U. S. 116, 124. When Madison introduced to the First Congress his draft of what became the Double Jeopardy Clause, it read:
“No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence . . . .” (Emphasis supplied.) 1 Annals of Cong. 434.
The phrasing of that proposal was changed at the behest of those who feared that the reference to but “one trial” might prevent a convicted man from obtaining a new trial on writ of error. Id., at 753. But that change was not intended to alter the ban against double punishment. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 304-306 (1963).
“By forbidding that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb,’ [the safeguard of the Fifth Amendment against double punishment] guarded against the repetition of history by . . . punishing [a man] for an offense when he had already suffered the punishment for it.” Roberts v. United States, 320 U. S. 264, 276 (Frankfurter, J., dissenting).2
The inquiry, then, is into the meaning of “double” or “multiple” punishment. In Ex parte Lange, 18 Wall. 163, the petitioner had been sentenced to one-year imprisonment and $200 in fines, under a federal statute providing for a maximum penalty of one-year imprisonment or $200 in fines. On writ of habeas corpus five days later, the trial court re-examined its own prior sentence and reset it, instead, at one-year imprisonment *730without credit for time already served. This Court, on certiorari, ordered petitioner discharged altogether. It reasoned that the trial court had power to impose a sentence of either imprisonment or fine. Because the petitioner had paid the fine, he had already suffered complete punishment for his crime and could not be subjected to further sanction:
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.” Id., at 168.
Ex parte Lange left it somewhat in doubt, whether the ban on double punishment applied only to situations in which the second sentence was added to one that had been completely served; or whether it also applied to the case where the second sentence was added to one still being served. It was not until United States v. Benz, 282 U. S. 304, that the Court clarified its position. In that case, having initially set the defendant’s sentence at 10 months, the trial court later reduced the sentence to six months. The Government appealed, and the question was certified to this Court, whether a reduction in sentence violated the Double Jeopardy Clause:
“The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. . . . The rule is. not confined to civil cases, but applies in criminal *731cases as well, provided the punishment he not augmented. Ex parte Lange, 18 Wall. 163, 167-174 [additional citations omitted]. In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limitation. . . .
“The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution .... This is the basis of the decision in Ex parte Lange, supra.” (Emphasis supplied.) 282 U. S., at 306-307.
The governing principle has thus developed that a convicted man may be retried after a successful appeal, Bryan v. United States, 338 U. S. 552; that he may run the risk, on retrial, of receiving a sentence as severe as that previously imposed, United States v. Ball, 163 U. S. 662; and that he may run the risk of being tried for a separate offense, Williams v. Oklahoma, 358 U. S. 576. But with all deference I submit that the State does not, because of prior error, have a second chance to obtain an enlarged sentence.3 Where a man successfully attacks *732a sentence that he has already “fully served” (Street v. New York, 394 U. S. 576), the State cannot create an additional sentence and send him back to prison. Ex parte Lange, supra. Similarly, where a defendant successfully attacks a sentence that he has begun to serve, the State cannot impose an added sentence by sending him to prison for a greater term.4
*733The ban on double jeopardy has its roots deep in the history of occidental jurisprudence. “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization.” Bartkus v. Illinois, 359 U. S. 121, 151-155 (Black, J., dissenting). And its purposes are several. It prevents the State from using its criminal processes as an instrument of harassment to wear the accused out *734by a multitude of cases with accumulated trials. Abbate v. United States, 359 U. S. 187, 198-199 (opinion by Brennan,. J.).
It serves the additional purpose of precluding the State, following acquittal, from successively retrying the defendant in the hope of securing a conviction. “The vice *735of this procedure lies in relitigating the same issue on the same evidence before two different juries with a man’s innocence or guilt at stake” “in the hope that they would come to a different conclusion.” Hoag v. New Jersey, 356 U. S. 464, 474, 475 (Warren, C. J., dissenting). “Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches.” Downum v. United States, 372 U. S. 734, 736.
And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty.
“This case presents an instance of the prosecution being allowed to harass the accused with repeated trials and convictions on the same evidence, until it achieves its desired result of a capital verdict.” Ciucci v. Illinois, 356 U. S. 571, 573 (Douglas, J., dissenting).
It is the latter purpose which is relevant here, for in these cases the Court allows the State a second chance to retry the defendant in the hope of securing a more favorable penalty.
“Why is it that, having once been tried and found guilty, he can never be tried again for that of-fence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punish*736ment a second time, is the constitutional restriction of any value? . . .
“The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” Ex parte Lange, supra, at 173.
The Fourteenth Amendment would now prohibit North Carolina and Alabama, after trial, from retrying or resen-tencing these defendants in the bald hope of securing a more favorable5 verdict. Benton v. Maryland, post, p. 784. But here, because these defendants were successful in appealing their convictions, the Court allows those States to do just that. It is said that events subsequent to the first trial6 may justify a new and greater sentence. Of course that is true. But it is true, too, in every criminal case. Does that mean that the State should be allowed to reopen every verdict and readjust every sentence by coming forward with new evidence concerning guilt and punishment? If not, then why should it be allowed to do so merely because the defendant has taken the initiative in seeking an error-free trial? It is doubtless true that the State has an interest in adjusting sentences up*737ward when it discovers new evidence warranting that result. But the individual has an interest in remaining free of double punishment. And in weighing those interests against one another, the Constitution has decided the matter in favor of the individual. See United States v. Tateo, 377 U. S. 463, 475 (Goldberg, J., dissenting).
“With the benefit of Green v. United States . . . there is support emerging in favor of a broad double jeopardy rule which would protect all federal and state convicts held in prison under erroneous convictions or sentences from harsher resentencing following retrial. . . . [T]he technical argument applying that rule would be as follows: When a particular penalty is selected from a range of penalties prescribed for a given offense, and when that penalty is imposed upon the defendant, the judge or jury is impliedly 'acquitting’ the defendant of a greater penalty, just as the jury in Green impliedly acquitted . . . the accused of a greater degree of the same offense.” Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965).
“Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.” Francis v. Resweber, 329 U. S. 459, 462 (opinion by Reed, J.). See also Williams v. Oklahoma, 358 U. S. 576, 584-586.
“I read the Double Jeopardy Clause as applying a strict standard. ... It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. . . . The policy of the Bill of Bights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it — on the Government.” Gori v. United *732States, 367 U. S. 364, 372-373 (Douglas, J., dissenting). This Court has never held anything to the contrary. While Stroud v. United States, 251 U. S. 15, involved a defendant who received the death penalty upon retrial after successfully appealing a sentence of life imprisonment,
“it appears that the case was argued ... on the theory that the defendant was put twice in jeopardy for the same offense merely by being retried on an indictment for first degree murder. There is no indication that the Court was presented with the argument that the risk of an increased penalty on retrial violates the double jeopardy clause by being a double punishment for the same offense. Stroud thus stands for no more than the well-established proposition that the double jeopardy clause does not entitle a defendant who successfully attacks his conviction to absolute immunity from reprosecution.” Patton v. North Carolina, 381 F. 2d 636, 644-645 (C. A. 4th Cir. 1967).
To the extent that Stroud stands for anything to the contrary, it has been vitiated by Green v. United States, supra. People v. Henderson, 60 Cal. 2d 482, 386 P. 2d 677 (1963). Other cases involving the matter of increased sentencing upon retrial have either been ones in which the matter was not before the court because the parties did not raise it, Robinson v. United States, 144 F. 2d 392 (C. A. 6th Cir. 1944), aff’d, 324 U. S. 282, or because it was not necessary to a decision, Fay v. Noia, 372 U. S. 391, 440; or state casas in winch this Court applied a loose standard of due process in lieu of the uncompromising dictates of the Double Jeopardy Clause, Palko v. Connecticut, 302 U. S. 319; Francis v. Resweber, 329 U. S. 459.
Among the federal courts, some agree that increased sentencing upon retrial constitutes double jeopardy, Patton v. North Carolina, 381 F. 2d 636 (C. A. 4th Cir. 1967); United States v. Adams, 362 F. 2d 210 (C. A. 6th Cir. 1966). Other courts of appeals have found it unnecessary to resolve the matter but have indicated that, *733properly presented, they too would prohibit increased sentencing as a violation of the ban against double jeopardy. Compare Walsh v. United States, 374 F. 2d 421 (C. A. 9th Cir. 1967), with Jack v. United States, 387 F. 2d 471 (C. A. 9th Cir. 1967); Castle v. United States, 399 F. 2d 642 (C. A. 5th Cir. 1968). Still other circuits have found the Double Jeopardy Clause unavailing and would permit increased sentencing whenever justified by newly revealed evidence, Marano v. United States, 374 F. 2d 583 (C. A. 1st Cir. 1967), and United States v. Coke, 404 F. 2d 836 (C. A. 2d Cir. 1968); whenever supported by standards of rational sentencing, absent an intent to penalize the defendant for seeking a new trial, United States v. White, 382 F. 2d 445 (C. A. 7th Cir. 1967); or whenever considered appropriate by the sentencing judge, Short v. United States, 120 U. S. App. D. C. 165, 344 F. 2d 550 (1965); Starner v. Russell, 378 F. 2d 808 (C. A. 3d Cir. 1967); and Newman v. Rodriguez, 375 F. 2d 712 (C. A. 10th Cir. 1967).
Among the States, the governing standards are similarly mixed. An increase in sentence where the defendant can show that it reflects an intent to punish him for seeking a new trial is one instance, State v. White, 262 N. C. 52, 136 S. E. 2d 205 (1964). Of the States that prohibit increased sentencing upon retrial, some rest on state standards of double jeopardy, People v. Henderson, 60 Cal. 2d 482, 386 P. 2d 677 (1963); some ground that result in the “chilling effect” that a contrary rule would have on the right “to correct an erroneously conducted initial trial.” State v. Wolf, 46 N. J. 301, 216 A. 2d 586 (1966), and State v. Turner, 247 Ore. 301, 313, 429 P. 2d 565, 570 (1967). Still others have reached that result either “as a matter of judicial policy,” State v. Holmes, 281 Minn. 294, 296, 161 N. W. 2d 650, 652 (1968), or because of a state statute, Rush v. State, 239 Ark. 878, 395 S. W. 2d 3 (1965).
Some States, evidently for reasons other than double jeopardy, prohibit increased sentencing except where affirmatively justified *734by newly developed evidence, People v. Mulier, 12 Mich. App. 28, 162 N. W. 2d 292; People v. Thiel, 29 App. Div. 2d 913, 289 N. Y. S. 2d 879; and State v. Leonard, 39 Wis. 2d 461, 159 N. W. 2d 577 (1968).
Although unwilling to place a ceiling over the sentencing at retrial, some States do allow credit for time already served, Tilghman v. Culver, 99 So. 2d 282 (Fla. 1957) (based on double jeopardy); Moore v. Parole Board, 379 Mich. 624, 154 N. W. 2d 437 (1967) (based on a local statute); State v. Boles, 151 W. Va. 1033, 159 S. E. 2d 36 (1967) (based on due process and equal protection); Gray v. Hocker, 268 F. Supp. 1004 (D. C. Nev. 1967) (based on equal protection); Hill v. Holman, 255 F. Supp. 924 (D. C. M. D. Ala. 1966) (based on due process). In the federal regime, the matter of credit is governed by statute, 18 U. S. C. § 3568.
Most States do permit increased sentencing on retrial without limit, Ex parte Barnes, 44 Ala. App. 329, 208 So. 2d 238 (1968); Kohlfuss v. Warden of Connecticut State Prison, 149 Conn. 692, 183 A. 2d 626 (1962); Bohannon v. District of Columbia, 99 A. 2d 647 (D. C. Mun. Ct. App. 1953); Salisbury v. Grimes, 223 Ga. 776, 158 S. E. 2d 412 (1967); State v. Kneeskern, 203 Iowa 929, 210 N. W. 465 (1926); State v. Morgan, 145 La. 585, 82 So. 711 (1919); State v. Young, 200 Kan. 20, 434 P. 2d 820 (1967); Hobbs v. State, 231 Md. 533, 191 A. 2d 238 (1963); Moon v. State, 250 Md. 468, 243 A. 2d 564 (1968); Hicks v. Commonwealth, 345 Mass. 89, 185 N. E. 2d 739 (1962); Sanders v. State, 239 Miss. 874, 125 So. 2d 923 (1961); Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633, 84 A. 2d 254 (1951); State v. Squires, 248 S. C. 239, 149 S. E. 2d 601 (1966).
Some States go so far as to deny credit against the new sentence for time already served in prison under the former one. People v. Starks, 395 Ill. 567, 71 N. E. 2d 23 (1947); McDowell v. State, 225 Ind. 495, 76 N. E. 2d 249 (1947); State v. King, 180 Neb. 631, 144 N. W. 2d 438 (1966); Morgan v. Cox, 75 N. M. 472, 406 P. 2d 347 (1965); State v. Meadows, 216 Tenn. 678, 393 S. W. 2d 744 (1965).
“In Swaim v. United States, 165 U. S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional.” Reid v. Covert, 354 U. S. 1, 37-38, n. 68 (opinion of Black, J.).
To rely on information that has developed after the initial trial gives the Government “continuing criminal jurisdiction” to supplement its case against the defendant, far beyond the cut-off date set by its original prosecution. Consider the defendant whose sentence on retrial is enlarged because of antisocial acts committed in prison. To increase his sentence on that original offense because of wholly subsequent conduct is indirectly to hold him criminally responsible for that conduct.