Sunday marks the 50th anniversary of North Carolina v. Pearce, 395 U.S. 711 (1969), a Warren Court landmark decided on June 23, 1969, Earl Warren's last day as Chief Justice.

To appreciate Pearce's significance, it is helpful to begin with the case of Sam Williams, an indigent defendant convicted of larceny in North Carolina in 1963 and sentenced to two years in prison. Williams did not have counsel at his trial. After the Supreme Court's decision in Gideon, he sought and obtained a new trial. That proved to be a mistake. He was convicted again, and this time was sentenced to the maximum term of 10 years. He was also denied credit for time served and for the “good time” that he had earned. His first sentence was deemed “wiped out.” And because it was “void,” he had “served no sentence but ha[d] merely spent time in the penitentiary.” State v. Williams, 261 N.C. 172 (1964) (Williams' case is discussed in Van Alstyne, “In Gideon's Wake,” 74 Yale L.J. 606 (1965)). Or so it was said.

No doubt, the possibility of suffering that fate—of receiving an increased sentence after a retrial—discouraged many defendants from filing appeals or seeking post-conviction relief. A letter to a federal judge who had awarded a state defendant a new trial underscores the point. The defendant wrote:

Dear Sir:

I am in the Mecklenburg County jail. [The prosecutor] chose to re-try me as I knew he would … . I have served 34 months and now I am to be tried again and with all probability I will receive a heavier sentence then before as you know sir my sentence at the first trile was 20 to 30 years. I know it is usuelly the court prosedure to give a larger sentence when a new trile is granted. I guess this is to discourage Petitioners. Your Honor, I don't want a new trile I am afraid of more time … . Your Honor, I know you have tried to help me and God knows I apreceate this but please sir don't let the state retry me if there is any way you can prevent it.

The judge replied that he had the power to grant a retrial but not to prevent one. (The letter is published in Patton v. North Carolina, 381 F. Supp. 225, 231 n.7 (W.D.N.C. 1966).)

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Which brings us to Clifton A. Pearce. Pearce was indicted for assault with intent to rape Betty Louise Honeycutt, age 12, whom he had accompanied to the grocery store on the night of Feb. 18, 1961. Following his indictment, police officers questioned him repeatedly and without counsel, and in the words of Officer Morris: “Of course, he eventually came around and [said] that he tried to have intercourse with her.”

Pearce's first trial, at which Officer Morris did not testify, ended in a mistrial. At a second trial, a week later, Officer Morris testified, and Pearce was convicted. He was sentenced to 12 to 15 years. After serving four years, Pearce filed a state post-conviction petition, claiming that his confession had been involuntarily obtained. The hearing court denied relief, but the North Carolina Supreme Court upheld Pearce's claim and ordered a new trial. Pearce's “admissions to the officer,” the court wrote, “were so lacking in voluntary character as to make them inadmissible as evidence against him.” North Carolina v. Pearce, 266 N.C. 234 (1966); the quotation is from Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), which is cited in Pearce.

From there, things got worse for Clifton Pearce. He was retried, convicted, and sentenced to an eight-year prison term. In fixing that sentence, the court wrote this:

It is the intention of this Court to give the defendant [the maximum] sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State's Prison for a period of eight years.

The new sentence was therefore longer than the original one. Assuming all allowances for good behavior, the first sentence would have expired in November 1969. The second sentence expired in October 1972.

Pearce appealed, arguing that the increased sentence, after a retrial at which the evidence was essentially the same, violated his constitutional rights: It penalized him for having successfully appealed his first conviction. The North Carolina Supreme Court disagreed. Citing its prior cases, the court ruled that “[i]f a sentence is set aside on a defendant's application, the former judgment does not … fix the maximum punishment which may be imposed after a second trial.” State v. Pearce, 268 N.C. 707 (1966), citing State v. Weaver, 264 N.C. 681 (1965).

Pearce then turned to the federal courts for relief, where he found a more sympathetic audience. The District Court held that because the sentence was harsher on retrial, it was unconstitutional, and ordered the state to resentence Pearce within 60 days. (The District Court's opinion is attached to the state's petition for a writ of certiorari in Pearce.) Thirteen days later, the North Carolina judge refused to follow that order. “This Court,” the state judge wrote, “will not take … action in direct contravention of the ruling of the Supreme Court of North Carolina.” At that point, Pearce returned to federal court, where the District Court ordered him “releas[ed] immediately.” The court recognized that Pearce had not “fully paid his debt to society” (he still had time left on his original sentence), but found that the state judge's defiance “left no alternative.” Id.

Not surprisingly, the state appealed to the Fourth Circuit, but unsuccessfully. The Circuit refused to countenance a procedure in which “added punishment [could be] in reaction to the defendant's temerity in attacking [his] original sentence.” Pearce v. North Carolina, 397 F.2d 253 (4th Cir. 1968). The state then sought a writ of certiorari, which was granted. Thus, Clifton Pearce, now free from prison, saw his case reach the Supreme Court.

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At oral argument in the Supreme Court, Justice Marshall came out swinging:

Justice Marshall: [S]olely because he made a mistake of going to the court and solely because the court gave him a new trial, he's got to serve more time, isn't that it?

Mr. Vanore: Well, no. I don't quite agree with you Justice Marshall. I think that here, we have two points that we must consider.

Justice Marshall: What I mean—speaking for the man, I imagine [he's having] a very great difficulty in seeing anything other than the fact he's got to serve more time solely because he was given a new trial.

Mr. Vanore: Well, I'm sure he feels that way, yes.

Justice Marshall: Doesn't he have a little reason to feel that way?

Other justices put questions that neither party handled easily. Was it right to presume that an increased sentence after a retrial meant that the judge had acted vindictively? What if additional evidence was adduced at the retrial showing that the crime was more heinous than had been believed? What if a new presentence report showed that the defendant was more unsavory than the original report had revealed? Should it matter that a different judge, perhaps with a different sentencing philosophy, had presided over the retrial and resentencing?

On June 23, 1969, the court handed down Pearce. For the majority, Justice Potter Stewart wrote this:

Due process of law … requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

That did not mean it was always impermissible to impose an increased sentence on retrial. It did mean, however, that “the reasons for … doing so must affirmatively appear [and] must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Because the state had not offered “any reason or justification for [Pearce's longer] sentence beyond the naked power to impose it,” the court found in his favor.

Justice Hugo Black dissented. He acknowledged that actual vindictiveness would violate due process but saw no evidence that Pearce's increased sentence was the product of an “actually improper motivation.” Justice Byron White wrote separately to assert that a judge should be permitted to impose an increased sentence on retrial based on “any objective, identifiable factual data [not just new conduct] not known to [him] at the time of the original sentencing proceeding.” (In 1986, the Supreme Court modified the Pearce rule and adopted Justice White's approach. Texas v. McCullough, 475 U.S. 134 (1986).) Only Justice Harlan, who concurred in the judgment, questioned why Pearce should not be required to serve the remainder of his original term.

An essay on Pearce should include mention of the brief for Clarence Gideon, written by Abe Fortas, in Gideon v. Wainwright in 1963. In arguing that a broad right to counsel rule should be adopted and made retroactive, Fortas assured the court that retroactivity would not result in the release of a large number of prisoners; it would not open the prison gates. He began his retroactivity argument with this observation:

It must be noted that a defendant who obtains a reversal of his conviction may be retried for the offense of which he was convicted … . Moreover, it is possible that an even more severe sentence than that originally levied may be imposed at the conclusion of the second trial.

The possibility of an increased sentence, Fortas suggested, would deter prisoners from asserting any newly announced right. Brief for Petitioner, p. 44, Gideon, 372 U.S. 335 (1963). What Fortas saw as reassuring in 1963, the Supreme Court found unconstitutional in 1969. Having created new rights, the Warren Court refused to let states penalize defendants for seeking to vindicate those rights.

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After Pearce was handed down, President Richard Nixon, wearing a cutaway coat and tails, rose to the podium and spoke. He was the first sitting president ever to address the Supreme Court. Nixon paid tribute to Warren for his distinguished public service: “This nation,” he concluded, “owes a debt of gratitude to the Chief Justice of the United States for his example.” Warren thanked Nixon for his words and announced: “I leave in a happy vein.” He then called on Warren Burger, who was in the audience, to join him on the bench and take the oath of office. A new Chief Justice having been sworn in, Earl Warren stepped down. Newton, Earl Warren and the Nation He Made, pp. 506-07

It is fitting that Pearce was decided on the last day of the Warren Court. From 1961 to 1969, the court held that the criminal procedure provisions of the Bill of Rights, with the exception of the grand jury clause, applied to the states. Indeed, the rights revolution—what some have called the nationalization of criminal procedure—was completed on the same day that Pearce was decided. Also 50 years ago on Sunday, the court held, in Benton v. Maryland, 395 U.S. 784 (1969), that the Fifth Amendment's double jeopardy clause applies to the states. But without Pearce's prophylactic rule, the revolution might have slowed. Defendants would hesitate to appeal or file post-conviction petitions claiming violations of those new rights. They might fear that, in seeking to do better, they could wind up doing worse.

There is no record that Clarence Pearce ever completed his original sentence.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.