with whom The Chief Justice, Justice White, and Justice Rehnquist join, dissenting.
This case concerns the force of the Double Jeopardy Clause after a defendant convicted of a crime and sentenced has succeeded in having his conviction reversed. The Court holds that the jury’s decision at petitioner’s first trial to sentence him to life imprisonment precludes Missouri from asking the jury at petitioner’s second trial to sentence him to death. I consider the Court’s opinion irreconcilable in principle with the precedents of this Court.
I
It is well-established law that the Double Jeopardy Clause does not apply to sentencing decisions after retrial with the same force that it applies to redeterminations of guilt or innocence. Since Stroud v. United States, 251 U. S. 15 (1919), it has been settled that a defendant whose conviction is reversed may receive a more severe sentence upon retrial than, he received at his first trial. The Court followed this principle in North Carolina v. Pearce, 395 U. S. 711 (1969), where it held that a “corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” Id., at 720. In contrast, where the question was whether a defendant could be retried for first-degree murder after the jury at his first trial had found him guilty only of second-degree murder, the Court “regarded the jury’s verdict as an imulicit acquittal on the charge of first degree murder” and held that the Double Jeopardy Clause therefore barred retrial *448on that charge. Green v. United States, 355 U. S. 184, 190 (1957).
Although there is some tension between the Green and Pearce opinions, their holdings are not inconsistent. Both have become landmarks in the law of the Double Jeopardy Clause. The Court has cited each opinion time and time again, and more than once the Court has declined to reexamine Pearce. Indeed, its rationale has been reaffirmed in recent cases. United States v. DiFrancesco, 449 U. S. 117, 135-136, n. 14 (1980); Chaffin v. Stynchcomhe, 412 U. S. 17, 24 (1973). Earlier this Term, the Court stated without qualification that “the difference in result reached in Green and Pearce can be explained only on the grounds that the imposition of sentence does not operate as an implied acquittal of any greater sentence.” United States v. DiFrancesco, supra, at 136, n. 14.1 Compare ante, at 438 (“The imposition of a particular sentence usually is not regarded as an 'acquittal’ of any more severe sentence . . . .” (emphasis added)). But today the Court applies Green’s principle of “implicit acquittal” to sentencing, despite Pearce and the unqualified statement in DiFrancesco.
II
The Court justifies applying the implicit-acquittal principle to the sentencing in this case on the ground that Missouri’s death penalty statute establishes certain procedures for the sentencing phase of a capital murder trial.2 In the Court’s *449view, these procedures give the sentencing phase “the hallmarks of the trial on guilt or innocence,” ante, at 439, and require the jury to decide whether the State has proved that the defendant deserves the penalty of death, ante, at 444. The decision at the first trial to impose life imprisonment, the Court reasons, reflects a decision that the State failed to prove that the defendant deserves capital punishment. According to the Court, that decision implies an “acquittal” of the harsher sentence.
Having characterized the jury’s decision for life imprisonment as an “acquittal” of the death sentence, the Court recites the classic double jeopardy rationale applicable to retrying the issue of guilt or innocence, Green v. United States, supra, at 187-188, and applies it to the reconsideration of an appropriate sentence for one whose guilt is unquestioned. Ante, at 445-446. It states, without documentation in the record, that the expense, ordeal, and anxiety at a resentencing in a capital murder case are as great as would accompany a redetermination of guilt or innocence. Ante, at 445. It also states that Missouri’s second attempt to obtain a death sentence might lead to an erroneously imposed death sentence. Ante, at 445-446. The Court therefore concludes that the Double Jeopardy Clause bars Missouri from again seeking the death penalty against petitioner.
This is the first time the Court has held that the Double Jeopardy Clause applies equally to sentencing and to determinations of guilt or innocence. It heretofore has been thought that there is a fundamental difference between the two. Stroud v. United States, supra; North Carolina v. Pearce, supra; Chaffin v. Stynchcomhe, supra; United States v. DiFrancesco, supra. I would adhere to these precedents, and think they control this case.
*450Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover that truth according to law. But triers of fact can err, and an innocent person can be pronounced guilty. In contrast, the law provides only limited standards for assessing the validity of a sentencing decision. The sentencer’s function is not to discover a fact, but to mete out just deserts as he sees them. Absent a mandatory sentence, there is no objective measure by which the sentencer’s decision can be deemed correct or erroneous if it is duly made within the authority conferred by the legislature.3
In light of this difference in the nature of the decisions, the question in this case is not — as the Court would frame it— whether the procedures by which a sentencing decision is made are similar to the procedures by which a decision on guilt or innocence is made. Rather, the question is whether the reasons for considering an acquittal on guilt or innocence as absolutely final apply equally to a sentencing decision imposing less than the most severe sentence authorized by law. I would have thought that the pertinence of this question was clear, and that the answer consistently given in the past could not have escaped the Court. Earlier this Term, in United States v. DiFrancesco, we stated that “[tjhere are . . . fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal.” 449 U. S., at 133.
*451The reasons for considering an acquittal on guilt or innocence as absolutely final do not apply equally to a sentencing decision for less than the most severe sentence authorized by law. A retrial of a defendant once found to have been innocent “enhanc[es] the possibility that even though innocent he may be found guilty.” .Green v. United States, 355 U. S., at 188. But in Chaffin v. Stynchcombe, 412 U. S., at 25, we held that “[t]he possibility of a higher sentence was recognized and accepted [in Pearce] as a legitimate concomitant of the retrial process.” The possibility of a higher sentence is acceptable under the Double Jeopardy Clause, whereas the possibility of error as to guilt or innocence is not, because the second jury’s sentencing decision is as “correct” as the first jury’s. Similarly, a defendant once found to have been innocent cannot be forced a second time through the ordeal of trial. But when a defendant is found guilty, he must bear the ordeal of being sentenced just as he does the ordeal of serving sentence.
In sum, I find wholly unpersuasive the Court’s justification for applying the implicit-acquittal principle to sentencing. The Court does not purport to justify its conclusion with the argument that facing the death sentence a second time is more of an ordeal in the legal sense than facing any other sentence a second time. The death sentence, of course, is unlike any other punishment. For that reason, this Court has read the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that States prescribe unique procedural safeguards to protect against capricious or discriminatory impositions of the death sentence. Furman v. Georgia, 408 U. S. 238 (1972); Gregg v. Georgia, 428 U. S. 153 (1976) (joint opinion). But a death sentence imposed in accord with the strictures of the Eighth Amendment and the Fourteenth Amendment is a lawful sentence, and Missouri provides the requisite procedures. I find no basis under the Double Jeopardy Clause for the Court to single out a sentence which is statutorily authorized, and *452otherwise may be imposed constitutionally, as nonetheless one that a guilty defendant may not be required to face twice. Petitioner’s ordeal upon retrial would not be different in kind from that of the defendants in Chaffin and Stroud, both of whom faced the possibility of the death sentence upon re-conviction. Chaffin v. Stynchcombe, supra, at 18-19; Stroud v. United States, 251 U. S., at 17-18. The Court today simply disregards the principles established by prior cases.4
Ill
In the course of explaining why the Double Jeopardy Clause does not bar retrial after a reversal for trial error, the Court stated: “Corresponding to the right of an accused to be *453given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.” United States v. Tateo, 377 U. S. 463, 466 (1964). Missouri has decided that death is an appropriate punishment for one whose guilt of murder with aggravating circumstances is made clear through special procedures. There is no justification in the Constitution for barring Missiouri from exacting that punishment unless Missouri’s interest in doing so conflicts with constitutionally protected interests of the defendant. The Double Jeopardy Clause does not protect a guilty defendant’s interest in avoiding a harsher sentence upon retrial, even the death sentence. I therefore dissent.
In Pearce, the Court stated: “The Court’s decision in Green v. United States, 355 U. S. 184, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision’s guarantee against retrial for an offense of which the defendant was acquitted.” 395 U. S., at 720, n. 16 (emphasis in original).
In the Court’s view, these procedures distinguish this case from United States v. DiFrancesco, 449 U. S. 117 (1980), Chaffin v. Stynchcomhe, 412 U. S. 17 (1973), North Carolina v. Pearce, 395 U. S. 711 (1969), and Stroud v. United States, 251 U. S. 15 (1919), where the sentencing decisions were not made pursuant to similar procedures. No one questions *449that these procedures, applicable in capital cases, are different. But analytically the difference is immaterial for purposes of the Double Jeopardy Clause. See infra, at 450.
Of course, a sentence imposed upon one who did not commit the crime is “erroneous,” but the error inheres in the decision on guilt or innocence, not in the sentencing decision. Also, a sentence may be called “erroneous” if it is grossly disproportionate to the severity of the crime committed. But in that event, the sentence is “cruel and unusual” in violation of the Eighth Amendment. Weems v. United States, 217 U. S. 349 (1910).
I would have trouble concurring in the Court’s judgment even if I agreed with the Court that the procedures of the Missouri death penalty-statute distinguish this case from Pearce, Chaffin, and Stroud. In the Court’s view, the first jury’s decision to sentence petitioner to life imprisonment rather than death reveals that the State failed to “prove its case” that petitioner deserved capital punishment. On this premise the Court concludes that the principle of Green and Burks v. United States, 437 U. S. 1 (1978), bars a second attempt by the State to secure a death sentence.
Under the Missouri statute, Mo. Rev. Stat. § 565.012 (1978), the “case” that the State had to prove was that petitioner committed the murder under circumstances defined as “aggravating” and that these circumstances warranted the imposition of the death penalty. But the trial court expressly instructed the jury that it could choose life imprisonment rather than death even if it found beyond a reasonable doubt that the State had proved the existence and gravity of such circumstances. See ante, at 434-435. Thus, the jury’s decision for life imprisonment rather than death does not necessarily mean that the State adduced insufficient evidence. To be sure, an acquittal on the question of guilt or innocence does not necessarily mean that the State adduced insufficient evidence, and yet such acquittals are final. But juries instructed on the question of guilt or innocence are not told that they can ignore the State’s evidence. Where the jury is so instructed, as in this case, there is significantly less reason to assume that the State failed to prove its ease. Accordingly, there is less reason to consider a second attempt to obtain the death penalty an unfair “ ‘second bite at the apple.’ ” Burks v. United States, supra, at 17.