The Presumption of Judicial Vindictiveness in Multi-Count Resentencing

Abstract

In an effort to safeguard the right to a criminal appeal, the Supreme Court in North Carolina v Pearce' crafted a prophylactic rule2 which forbids a judge from increasing a defendant's sentence as punishment for challenging a conviction. In applying this doctrine, the Courts of Appeals agree that when a defendant wins an appeal but loses a second trial, the judge may not increase the sentence without justifying the harsher punishment with an objective rationale. The circuits often differ, however, on the application of Pearce to resentencing in cases involving multi-count convictions.3 In such cases, the first trial results in a guilty verdict on more than one count while the second trial ends in acquittal on some, but not all, of the counts that made up the original conviction. The dispute among the circuits centers on whether the postappeal sentence and the pre-appeal sentence should be compared in the aggregate or on a count-by-count basis. At issue is a conflict between the judiciary's need for discretion in crafting punishments and Pearce's stated goal of eliminating vindictiveness from the sentencing process. Section I of this Comment examines the development of the Pearce rule as it was created by the Court. The Section also describes the variety of situations in which the Pearce multi-count issue arises and considers the implications posed by the Federal Sentencing Guidelines. Section II examines the Supreme Court's reformulation of the original Pearce doctrine over the past two decades. Section III outlines the approaches to the multi-count issue currently used by the circuits and argues that no court has ade-