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is, once again, in doubt since the concept can only be sustained under a continuing jeopardy theory. This is true whether the theory is articulated in Holmesian terms or is spoken of in terms of result, as in Justice Powell's dissenting opinion in Bullington, as "a fundamental difference" between determinations of guilt or innocence, on the one hand, and sentencing, on the other.

Distinctions Between DiFrancesco and Bullington

The confusion created by Bullington's implicit rejection of the DiFrancesco rationale might be eliminated if there were some principled basis for distinguishing the cases. As noted above, the presence of the death penalty is not such a basis, so our search must continue. Justice Blackmun did attempt to explain the differing results in terms of the form of the two statutes involved.

According to Justice Blackmun, one of the "highly pertinent differences" between the procedures controlling the bifurcated process in Bullington, found unconstitutional, and procedures controlling the bifurcated process in DiFrancesco, found constitutional, was that "the choice presented to the federal judge [in the DiFrancesco situation] is far broader than that faced by the sentencing jury in [Bullington]." Blackmun elaborated,

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-

and under

- only two

Bullington's Missouri jury was given
the State's statutes could be given
choices, death or life imprisonment. On the
other hand, if the Federal Government proves that
a person convicted of a felony is a dangerous
special offender, the judge may sentence that
person to "an appropriate term not to exceed
twenty-five years and not disproportionate in
severity to the maximum term otherwise authorized
by law for such felony."

Under this rationale, the importance of Double Jeopardy protections increase as limitations upon the sentencing authority's discretion become more stringent until at some point, to use Justice Frankfurter's phrase, the Plimsoll line of unconstitutionality is reached. Bullington attempts to distinguish between "the normal process of sentencing" in which "there are virtually no rules or tests or standards and thus

-

no issues to resolve," (and thus apparently where Double Jeopardy protection is not available) and a procedure where the sentencing authority's ability to choose is more restricted,

(and thus where Double Jeopardy protection is available).

Justice Blackmun reasoned:

The Court's cases that have considered the role
of the Double Jeopardy Clause in sentencing have
noted this absence of sentencing standards. In
DiFrancesco, for example, we observed that "a
sentence is characteristically determined in
large part on the basis of information such as
the presentence report, developed outside the
courtroom. It is purely a judicial determination,
and much that goes into it is the result of
inquiry that is nonadversial in nature." And
even if it is the jury that imposes the sentence

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"[n]ormally there would be no way for the jury to
place on the record the reasons for its

collective sentencing determination

(emphasis added)

Justice Blackmun argued that Missouri, by "enacting a capital sentencing procedure that resembles and is like a trial," in contrast to the normal unfettered sentencing discretion situation, helped transform the overall sentencing scheme from one that could survive a Double Jeopardy Clause attack to one that cannot. Under this rationale the Missouri legislature's adoption of general sentencing provisions containing reforms intended to tighten trial judges' sentencing discretion inadvertently rekindled Double Jeopardy protection. The Supreme Court of North Carolina used strikingly similar reasoning in a case decided two months before Bullington. In State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), the court distinguished a case before it involving that state's capital sentencing process from DiFrancesco. Rooting its opinion explicitly in an "implicit acquittal" rationale, the North Carolina court wrote:

If a

The Double Jeopardy Clause is a limitation on the
state's, not the defendant's, power to proceed.
life sentence is imposed following conviction for a
capital crime, the state may not appeal nor may a new
sentencing hearing be ordered on defendant's appeal
of his conviction even if the life sentence was the
result of trial error favorable to defendant. This
would be tantamount to defendant having been
acquitted of the death penalty.

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275 S.E.2d at 482.

The court distinguished DiFrancesco by pointing to the tightened sentencing discretion in North Carolina's bifurcated capital sentencing process. Justice Exum, anticipating Justice Blackmun's logic of two month's later, noted that:

Although the jury's sentencing discretion is not
totally eliminated, it is not unbridled. It must be
exercised under the guidance of "a carefully defined
set of statutory criteria that allow[s] [the jury] to
take into account the nature of the crime and the
character of the accused."

275 S.E.2d at 481.

Prior to Bullington, one less perceptive than Justice Exum might have thought that a legislature's elaboration of sentencing guidelines in a statutory sentencing reform scheme would have simplified rather than complicated an appellate court's task in reviewing the initial sentencing authority's discretion. However, Bullington and its North Carolina analogue indicate precisely the opposite. Incorporation of a government right to appeal sentences into a sentencing reform which contains explicit guidelines within which the initial sentencing authority's discretion must operate threatens the constitutionality of sentencing reform.

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If the reasoning of these two cases remains viable, the government appeal of sentences provision of S. 1630 would continue to be suspect. Section 3725(d) provides that statutory factors must be considered in sentencing. To the extent that a sentencing authority is commanded by statute to consider in its sentencing additional factors not involved in the determination of guilt or innocence, such as those enumerated in S. 1630 section 2003, the sentencing procedure resembles a trial. Thus, like Bullington and unlike DiFrancesco, it is subject to Double Jeopardy attack if the scheme includes the possibility of a heavier sentence's imposition after appellate review of a trial court's sentencing decision.

Another factor which Justice Blackmun used to distinguish Bullington from DiFrancesco also suggests strongly the potential constitutional infirmity of S. 1630's sentencing reform if that reform includes government appeal of sentences. Justice Blackmun in Bullington distinguished DiFrancesco on the following basis:

Finally, although the statute requires the
Government to prove the additional fact that the
defendant is a "dangerous special offender," it
need do so only by a preponderance of the
evidence [in DiFrancesco]. This stands in
contrast to the reasonable doubt standard of the
Missouri statute . . . The State's use of this
standard indicates that . . . "the interests of
the defendant are of such magnitude that . .
they have been protected by standards of proof