State v. Biegenwald3/5/1987
ation would be appropriate. The unfairness, if there be any, in not applying the laws retroactively in these cases is balanced by the needs of the practical administration of justice; the system cannot continually retry, reevaluate, or resentence all those convicted under prior laws every time that law is changed. See State v. Burstein, 85 N.J. 394, 406 (1981); see also Johnson v. New Jersey, 384 U.S. 719, 727, 86 S. Ct. 1772, 1777, 16 L. Ed. 2d 882, 888 (1966) (in determining whether two decisions should be applied retroactively, the Court considered "the effect on the administration of justice"). However, with respect to the death penalty, and changes within only a three-year period that affect its imposition, it is both unjust, and probably outside of the Legislature's intent, not to give those previously tried the benefit of provisions intended to have been in the law in the
first place. Although we do not in any way rest our holding on considerations of efficiency, we note that there is no substantial problem of judicial administration here. Although our holding will require retrial of the sentencing proceeding in this case and in some others, the price is relatively small for assuring fairness in this most awesome of all determinations: shall the defendant live or shall he die?
We therefore hold that in all cases tried under the Act, in order for the death penalty to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
VI.
Resentencing
In vacating and remanding this death sentence, we foresee no double-jeopardy problems arising from resentencing defendant. It is, after all, standard practice for the United States Supreme Court to vacate and remand a death sentence for resentencing while leaving the underlying conviction intact. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980); Roberts v. Louisiana, 431 U.S. 633, 97 S. Ct. 1993, 52 L. Ed. 2d 637 (1977); Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1972). Many state statutes, moreover, provide explicitly for such a resentencing in the event that a death sentence is vacated on legal grounds (as opposed to
insufficient evidence). See, e.g., Ala.Code para. 13A-5-53(d) (1982); N.C.Gen.Stat. § 15A-2000(d)(3) (1984); Va. § 19.2-264.3(C) (1983); S.C.Code Ann. § 16-3-25(E) (1-2) (Supp.1984); La.Code Crim.Proc.Ann. tit. 30, ch. 3, art. 905.1(B) (1984); cf. Ga.Code Ann. § 17-10-35(e)(1-2) (authorizing the State Supreme Court to " et the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel . . ."). But see Ohio Stat.Ann. § 2929.06 (1982) (providing for imposition of life sentence should resentencing be required); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984) (resentencing shall result in imposition of life imprisonment); Eddings v. State, 688 P. 2d 342 (Okla.Crim.App.1984) (construing provision identical to Georgia's, holding that resentencing shall result in modification of sentence to life imprisonment), cert. den., 470 U.S. 1051, 105 S. Ct. 1750, 84 L. Ed. 2d 814 (1985).
The present case is distinguishable, moreover, from Bullington v. Missouri, supra, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270, in which the Court held that a defendant who had successfully appealed a conviction for which a life sentence had been given could not be exposed
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