dissenting.
I join Justice Stevens’ dissenting opinion. I write separately because I believe Bullington v. Missouri, 451 U. S. 430 (1981), provides a compelling alternative ground for vacation of Schiro’s death sentence.
In Bullington, this Court held that once a capital defendant is acquitted of the death sentence, the Double Jeopardy Clause bars his again being placed in jeopardy of death at a subsequent sentencing proceeding. The majority rejects Schiro’s double jeopardy claim on the theory that because “a second sentencing proceeding ordinarily does not violate the Double Jeopardy Clause,” it fails to see “how an initial sentencing proceeding could do so.” Ante, at 230. The essential holding of Bullington, however, was that capital sentencing proceedings uniquely can constitute a “jeopardy” under the Double Jeopardy Clause. The proceeding examined in Bullington had “the hallmarks of the trial on guilt or innocence,” 451 U. S., at 439, where the prosecution must “prov[e] its case” beyond a reasonable doubt, id., at 443. We concluded that such a bifurcated capital penalty proceeding is itself a trial that places a defendant in jeopardy of death. Ibid.
The sentencing proceeding at issue here is indistinguishable from that confronted in Bullington. As Justice De-Bruler noted in dissent from the affirmance of Schiro’s sentence on direct appeal:
“[T]he jury reconvenes in court for the sentencing hearing. It is presided over by the judge. The defendant is present with his counsel and the state by its trial prosecutor. Evidence is presented in an adversarial setting .... The burden is upon the state to prove the aggravating circumstance beyond a reasonable doubt. The lawyers make final arguments to the jury. The jury retires to deliberate and returns into open court with its verdict in the form of a recommendation. This is a full scale jury trial in every sense of those terms. The defendant must surely feel that he is in ‘direct peril’ *238of receiving the death penalty as he stands to receive the recommendation of the jury.” Schiro v. State, 451 N. E. 2d 1047, 1065 (Ind. 1983) (citation omitted).
The “unique” nature of modern capital sentencing proceedings identified in Bullington, 451 U. S., at 442, n. 15, derives from the fundamental principle that death is “different,” see, e. g., Gardner v. Florida, 430 U. S. 349, 357 (1977) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion); see also Furman v. Georgia, 408 U. S. 238, 306 (1972) (Stewart, J., concurring), and that heightened reliability is required at all stages of the capital trial. The “trial-like” nature of Schiro’s capital sentencing proceeding, and the trauma he necessarily underwent in defending against the sentence of death, are directly analogous to guilt-phase proceedings and thus bring the Double Jeopardy Clause into play.
Even if the issue of Schiro’s intent to kill was not “actually and necessarily decided” for collateral estoppel purposes, ante, at 236, the jury’s failure to convict Schiro of intentional murder impliedly acquitted him under the Double Jeopardy Clause. See Green v. United States, 355 U. S. 184, 191 (1957) (jury “was given a full opportunity to return a verdict”); Price v. Georgia, 398 U. S. 323,329 (1970). As Justice Stevens pointedly notes, post, at 243, there is no question that Schiro could not have been reprosecuted for intentional murder. Nor is there any question that the aggravator required the prosecution to prove again at sentencing, beyond a reasonable doubt, the identical elements of that murder charge. Thus, “the jury ha[d] already acquitted the defendant of whatever was necessary to impose the death sentence.” 451 U. S., at 445. Over a unanimous jury recommendation of life and after a State Supreme Court remand, the trial judge condemned Schiro to death in reliance nunc pro tunc on the very conduct for which Schiro had been acquitted. This sentence cannot be tolerated under the Double Jeopardy Clause.
I respectfully dissent.