source: Caselaw Access Project

author: Mr. Chief Justice Burger Mr. Justice Brennan,

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text:
    DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. CHAKRABARTY
    No. 79-136.
    Argued March 17, 1980
    Decided June 16, 1980

      BubgeR, C. J., delivered the opinion of the Court, in which Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Powell, JJ., joined, post, p. 318.

      Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Shenefield, Harriet S. Shapiro, Robert B. Nicholson, Frederic Freilicher, and Joseph F. Nakamura.

      Edward F. McKie, Jr., argued the cause for respondent. With him on the brief were Leo I. MaLossi, William E. Schuyler, Jr., and Dale H. Hoscheit

        Leonard S. Bubenstein filed a brief for the Peoples Business Commission as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by George W. Whitney, Bruce M. Collins, and Karl F. Jorda for the American Patent Law Association, Inc.; by Thomas D. Kiley for Genentech, Inc.; by Jerome G. Lee, William F. Dudine, Jr., and Paul H. Heller for the New York Patent Law Association, Inc.; by Peter R. Taft, Joseph A. Keyes, Jr., and Sheldon Ellcñt Steinbach for Dr. Leroy E. Hood et al.; and by Lorance L. Greenlee for Dr. George Pieczenik.
      Briefs of amici curiae were filed by William I. Althen for the American Society for Microbiology; by Donald R. Dunner for the Pharmaceutical Manufacturers Association; by Edward S. Irons, Mary Helen Sears, and Donald Reidhaar for the Regents of the University of California; and by Cornell D. Cornish, pro se.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to determine whether a live, human-made micro-organism is patentable subject matter under 35 U. S. C. § 101.

I

In 1972, respondent Chakrabarty, a microbiologist, filed a patent application, assigned to the General Electric Co. The application asserted 36 claims related to Chakrabarty’s invention of “a bacterium from the genus Pseudomonas containing therein at least two stable energy-generating plasmids, each of said plasmids providing a separate hydrocarbon degradative pathway.” This human-made, genetically engineered bacterium is capable of breaking down multiple components of crude oil. Because of this property, which is possessed by no naturally occurring bacteria, Chakrabarty’s invention is believed to have significant value for the treatment of oil spills.

Chakrabarty’s patent claims were of three types: first, process claims for the method of producing the bacteria; second, claims for an inoculum comprised of a carrier material floating on water, such as straw, and the new bacteria; and third, claims to the bacteria themselves. The patent examiner allowed the claims falling into the first two categories, but rejected claims for the bacteria. His decision rested on two grounds: (1) that micro-organisms are “products of nature,” and (2) that as living things they are not patentable subject matter under 35 U. S. C. § 101.

Chakrabarty appealed the rejection of these claims to the Patent Office Board of Appeals, and the Board affirmed the examiner on the second ground. Relying on the legislative history of the 1930 Plant Patent Act, in which Congress extended patent protection to certain asexually reproduced plants, the Board concluded that § 101 was not intended to cover living things such as these laboratory created micro-organisms.

The Court of Customs and Patent Appeals, by a divided vote, reversed on the authority of its prior decision in In re Bergy, 563 F. 2d 1031, 1038 (1977), which held that “the fact that microorganisms . . . are alive ... [is] without legal significance” for purposes of the patent law. Subsequently, we granted the Acting Commissioner of Patents and Trademarks’ petition for certiorari in Bergy, vacated the judgment, and remanded the case “for further consideration in light of Parker v. Flook, 437 U. S. 584 (1978).” 438 17. S. 902 (1978). The Court of Customs and Patent Appeals then vacated its judgment in Chakrabarty and consolidated the case with Bergy for reconsideration. After re-examining both cases in the light of our holding in Flook, that court, with one dissent, reaffirmed its earlier judgments. 596 F. 2d 952 (1979).

The Commissioner of Patents and Trademarks again sought certiorari, and we granted the writ as to both Bergy and Chakrabarty. 444 U. S. 924 (1979). Since then, Bergy has been dismissed as moot, 444 U. S. 1028 (1980), leaving only Chakrabarty for decision.

II

The Constitution grants Congress broad power to legislate to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. The patent laws promote this progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research efforts. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 480-481 (1974); Universal Oil Co. v. Globe Co., 322 U. S. 471, 484 (1944). The authority of Congress is exercised in the hope that “[t]he productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens.” Kewanee, supra, at 480.

The question before us in this case is a narrow one of statutory interpretation requiring us to construe 35 U. S. C. § 101, which provides:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

Specifically, we must determine whether respondent’s microorganism constitutes a “manufacture” or “composition of matter” within the meaning of the statute.

Ill

In cases of statutory construction we begin, of course, with the language of the statute. Southeastern Community College v. Davis, 442 U. S. 397, 405 (1979). And “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). We have also cautioned that courts “should not read into the patent laws limitations and conditions which the legislature has not expressed.” United States v. Dubilier Condenser Corp., 289 U. S. 178, 199 (1933).

Guided by these canons of construction, this Court has read the term “manufacture” in § 101 in accordance with its dictionary definition to mean “the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.” American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931). Similarly, “composition of matter” has been construed consistent with its common usage to include “all compositions of two or more substances and ... all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids.” Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (DC 1957) (citing 1 A. Deller, Walker on Patents § 14, p. 55 (1st ed. 1937)). In choosing such expansive terms as “manufacture” and “composition of matter,” modified by the comprehensive “any,” Congress plainly contemplated that the patent laws would be given wide scope.

The relevant legislative history also supports a broad construction. The Patent Act of 1793, authored by Thomas Jefferson, defined statutory subject matter as “any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement [thereof].” Act of Feb. 21, 1793, § 1, 1 Stat. 319. The Act embodied Jefferson’s philosophy that “ingenuity should receive a liberal encouragement.” 5 Writings of Thomas Jefferson 75-76 (Washington ed. 1871). See Graham v. John Deere Co., 383 U. S. 1, 7-10 (1966). Subsequent patent statutes in 1836, 1870, and 1874 employed this same broad language. In 1952, when the patent laws were recodified, Congress replaced the word “art” with “process,” but otherwise left Jefferson’s language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to “include anything under the sun that is made by man.” S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952).

This is not to suggest that § 101 has no limits or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, 409 U. S. 63, 67 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948); O’Reilly v. Morse, 15 How. 62, 112-121 (1854); Le Roy v. Tatham, 14 How. 156, 175 (1853). Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.” Funk, supra, at 130.

Judged in this light, respondent’s micro-organism plainly qualifies as patentable subject matter. His claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter — a product of human ingenuity “having a distinctive name, character [and] use.” Hartranft v. Wiegmann, 121 U. S. 609, 615 (1887). The point is underscored dramatically by comparison of the invention here with that in Funk. There, the patentee had discovered that there existed in nature certain species of root-nodule bacteria which did not exert a mutually inhibitive effect on each other. He used that discovery to produce a mixed culture capable of inoculating the seeds of leguminous plants. Concluding that the patentee had discovered "only some of the handiwork of nature,” the Court ruled the product nonpatentable:

“Each of the species of root-nodule bacteria contained in the package infects the same group of leguminous plants which it always infected. No species acquires a different use. The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee.” 333 TJ. S., at 131.

Here, by contrast, the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. His discovery is not nature’s handiwork, but his own; accordingly it is patentable subject matter under § 101.

IV

Two contrary arguments are advanced, neither of which we find persuasive.

(A)

The petitioner’s first argument rests on the enactment of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection. In the petitioner’s view, the passage of these Acts evidences congressional understanding that the terms “manufacture” or “composition of matter” do not include living things; if they did, the petitioner argues, neither Act would have been necessary.

We reject this argument. Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law. This position appears to have derived from the decision of the Patent Office in Ex parte Latimer, 1889 Dec. Com. Pat. 123, in which a patent claim for fiber found in the needle of the Pinus australis was rejected. The Commissioner reasoned that a contrary result would permit “patents [to] be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” Id., at 126. The Latimer case, it seems, came to “se[t] forth the general stand taken in these matters” that plants were natural products not subject to patent protection. Thorne, Relation of Patent Law to Natural Products, 6 J. Pat. Off. Soc. 23, 24 (1923). The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the “written description” requirement of the patent law. See 35 U. S. C. § 112. Because new plants may differ from old only in color or perfume, differentiation by written description was often impossible. See Hearings on H. R. 11372 before the House Committee on Patents, 71st Cong., 2d Sess., 7 (1930) (memorandum of Patent Commissioner Robertson).

In enacting the Plant Patent Act, Congress addressed both of these concerns. It explained at length its belief that the work of the plant breeder “in aid of nature” was patentable invention. S. Rep. No. 315, 71st Cong., 2d Sess., 6-8 (1930); H. R. Rep. No. 1129, 71st Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor of “a description ... as complete as is reasonably possible.” 35 U. S. C. § 162. No Committee or Member of Congress, however, expressed the broader view, now urged by the petitioner, that the terms “manufacture” or “composition of matter” exclude living things. The sole support for that position in the legislative history of the 1930 Act is found in the conclusory statement of Secretary of Agriculture Hyde, in a letter to the Chairmen of the House and Senate Committees considering the 1930 Act, that “the patent laws ... at the present time are understood to cover only inventions or discoveries in the field of inanimate nature.” See S. Rep. No. 315, supra, at Appendix A; H. R. Rep. No. 1129, supra, at Appendix A. Secretary Hyde’s opinion, however, is not entitled to controlling weight. His views were solicited on the administration of the new law and not on the scope of patentable subject matter — an area beyond his competence. Moreover, there is language in the House and Senate Committee' Reports suggesting that to the extent Congress considered the matter it found the Secretary’s dichotomy unpersuasive. The Reports observe:

“There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man. ... On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man. . . .” S. Rep. No. 315, supra, at 6; H. R. Rep. No. 1129, supra, at 7 (emphasis added).

Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions. Here, respondent’s micro-organism is the result of human ingenuity and research. Hence, the passage of the Plant Patent Act affords the Government no support.

Nor does the passage of the 1970 Plant Variety Protection Act support the Government’s position. As the Government acknowledges, sexually reproduced plants were not included under the 1930 Act because new varieties could not be reproduced true-to-type through seedlings.. Brief for Petitioner 27, n. 31. By 1970, however, it was generally recognized that true-to-type reproduction was possible and that plant patent protection was therefore appropriate. The 1970 Act extended that protection. There is nothing in its language or history to suggest that it was enacted because § 101 did not include living things.

In particular, we find nothing in the exclusion of bacteria from plant variety protection to support the petitioner’s position. See n. 7, supra. The legislative history gives no reason for this exclusion. As the Court of Customs and Patent Appeals suggested, it may simply reflect congressional agreement with the result reached by that court in deciding In re Arzberger, 27 C. C. P. A. (Pat.) 1315, 112 F. 2d 834 (1940), which held that bacteria were not plants for the purposes of the 1930 Act. Or it may reflect the fact that prior to 1970 the Patent Office had issued patents for bacteria under § 101. In any event, absent some clear indication that Congress “focused on [the] issues . . . directly related to the one presently before the Court" SEC v. Sloan, 436 U. S. 103, 120-121 (1978), there is no basis for reading into its actions an intent to modify the plain meaning of the words found in § 101. See TV A v. Hill, 437 U. S. 153, 189-193 (1978) ; United States v. Price, 361 U. S. 304, 313 (1960).

(B)

The petitioner’s second argument is that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. His position rests on the fact that genetic technology was unforeseen when Congress enacted § 101. From this it is argued that resolution of the patentability of inventions such as respondent’s should be left to Congress. The legislative process, the petitioner argues, is best equipped to weigh the competing economic, social, and scientific considerations involved, and to determine whether living organisms produced by genetic engineering should receive patent protection. In support of this position, the petitioner relies on our recent holding in Parker v. Flook, 437 U. S. 584 (1978), and the statement that the judiciary “must proceed cautiously when . . . asked to extend patent rights into areas wholly unforeseen by Congress.” Id., at 596.

It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in § 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting “the Progress of Science and the useful Arts” with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms.

Nothing in Flook is to the contrary. That case applied our prior precedents to determine that a “claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under § 101.” 437 U. S., at 595, n. 18. The Court carefully scrutinized the claim at issue to determine whether it was precluded from patent protection under “the principles underlying the prohibition against patents for 'ideas’ or phenomena of nature.” Id., at 593. We have done that here. Flook did not announce a new principle that inventions in areas not contemplated by Congress when the patent laws were enacted are unpatentable per se.

To read that concept into Flook would frustrate the purposes of the patent law. This Court frequently has observed that a statute is not to be confined to the “particular application [s] . . . contemplated by the legislators.” Barr v. United States, 324 U. S. 83, 90 (1945). Accord, Browder v. United States, 312 U. S. 335, 339 (1941); Puerto Rico v. Shell Co., 302 U. S. 253, 257 (1937). This is especially true in the field of patent law. A rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability. See Graham v. John Deere Co., 383 U. S., at 12-17. Mr. Justice Douglas reminded that the inventions most benefiting mankind are those that “push back the frontiers of chemistry, physics, and the like.” Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 154 (1950) (concurring opinion). Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable.

To buttress his argument, the petitioner, with the support of amicus, points to grave risks that may be generated by research endeavors such as respondent’s. The briefs present a gruesome parade of horribles. Scientists, among them Nobel laureates, are quoted suggesting that genetic research may pose a serious threat to the human race, or, at the very least, that the dangers are far too substantial to permit such research to proceed apace at this time. We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life. These arguments are forcefully, even passionately, presented; they remind us that, at times, human ingenuity seems unable to control fully the forces it creates— that, with Hamlet, it is sometimes better “to bear those ills we have than fly to others that we know not of.”

It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is patentable subject matter under § 101. We disagree. The grant or denial of patents on micro-organisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent's claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all.

What is more important is that we are without competence to entertain these arguments — either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts

We have emphasized in the recent past that “[o]ur individual appraisal of the wisdom or unwisdom of a particular [legislative] course ... is to be put aside in the process of interpreting a statute.” TV A v. Hill, 437 U. S., at 194. Our task, rather, is the narrow one of determining what Congress meant by the words it used in the statute; once that is done our powers are exhausted. Congress is free to amend § 101 so as to exclude from patent protection organisms produced by genetic engineering. Cf. 42 U. S. C. § 2181 (a), exempting from patent protection inventions “useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.” Or it may choose to craft a statute specifically designed for such living things. But, until Congress takes such action, this Court must construe the language of § 101 as it is. The language of that section fairly embraces respondent’s invention.

Accordingly, the judgment of the Court of Customs and Patent Appeals is

Affirmed.

Mr. Justice Brennan,

with whom Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Powell join, dissenting.

I agree with the Court that the question before us is a narrow one. Neither the future of scientific research, nor even the ability of respondent Chakrabarty to reap some monopoly profits from his pioneering work, is at stake. Patents on the processes by which he has produced and employed the new living organism are not contested. The only question we need decide is whether Congress, exercising its authority under Art. I, § 8, of the Constitution, intended that he be able to secure a monopoly on the living organism itself, no matter how produced or how used. Because I believe the Court has misread the applicable legislation, I dissent.

The patent laws attempt to reconcile this Nation’s deep-seated antipathy to monopolies with the need to encourage progress. Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 530-531 (1972); Graham v. John Deere Co., 383 U. S. 1, 7-10 (1966). Given the complexity and legislative nature of this delicate task, we must be careful to extend patent protection no further than Congress has provided. In particular, were there an absence of legislative direction, the courts should leave to Congress the decisions whether and how far to extend the patent privilege into areas where the common understanding has been that patents are not available. Cf. Deepsouth Packing Co. v. Laitram Corp., supra.

In this case, however, we do not confront a complete legislative vacuum. The sweeping language of the Patent Act of 1793, as re-enacted in 1952, is not the last pronouncement Congress has made in this area. In 1930 Congress enacted the Plant Patent Act affording patent protection to developers of certain asexually reproduced plants. In 1970 Congress enacted the Plant Variety Protection Act to extend protection to certain new plant varieties capable of sexual reproduction. Thus, we are not dealing — as the Court would have it — with the routine problem of “unanticipated inventions.” Ante, at 316. In these two Acts Congress has addressed the general problem of patenting animate inventions and has chosen carefully limited language granting protection to some kinds of discoveries, but specifically excluding others. These Acts strongly evidence a congressional limitation that excludes bacteria from patentability.

First, the Acts evidence Congress’ understanding, at least since 1930, that § 101 does not include living organisms. If newly developed living organisms not naturally occurring had been patentable under § 101, the plants included in the scope of the 1930 and 1970 Acts could have been patented without new legislation. Those plants, like the bacteria involved in this case, were new varieties not naturally occurring. Although the Court, ante, at 311, rejects this line of argument, it does not explain why the Acts were necessary unless to correct a pre-existing situation. I cannot share the Court’s implicit assumption that Congress was engaged in either idle exercises or mere correction of the public record when it enacted the 1930 and 1970 Acts. And Congress certainly thought it was doing something significant. The Committee Reports contain expansive prose about the previously unavailable benefits to be derived from extending patent protection to plants. H. R. Rep. No. 91-1605, pp. 1-3 (1970); S. Rep. No. 315, 71st Cong., 2d Sess., 1-3 (1930). Because Congress thought it had to legislate in order to make agricultural “human-made inventions” patentable and because the legislation Congress enacted is limited, it follows that Congress never meant to make items outside the scope of the legislation patentable.

Second, the 1970 Act clearly indicates that Congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection. Congress specifically excluded bacteria from the coverage of the 1970 Act. 7 U. S. C. § 2402 (a). The Court’s attempts to supply explanations for this explicit exclusion ring hollow. It is true that there is no mention in the legislative history of the exclusion, but that does not give us license to invent reasons. The fact is that Congress, assuming that animate objects as to which it had not specifically legislated could not be patented, excluded bacteria from the set of patentable organisms.

The Court protests that its holding today is dictated by the broad language of § 101, which cannot “be confined to the ‘particular application [s] . . . contemplated by the legislators.’ ” Ante, at 315, quoting Barr v. United States, 324 U. S. 83, 90 (1945). But as I have shown, the Court’s decision does not follow the unavoidable implications of the statute. Rather, it extends the patent system to cover living material even though Congress plainly has-legislated in the belief that § 101 does not encompass living organisms. It is the role of Congress, not this Court, to broaden or narrow the reach of the patent laws. This is especially true where, as here, the composition sought to be patented uniquely implicates matters of public concern.

       Plasmids are hereditary units physically separate from the chromosomes of the cell. In prior research, Chakrabarty and an associate discovered that plasmids control the oil degradation abilities of certain bacteria. In particular, the two researchers discovered plasmids capable of degrading camphor and octane, two components of crude oil. In the work represented by the patent application at issue here, Chakrabarty discovered a process by which four different plasmids, capable of degrading four different oil components, could be transferred to and maintained stably in a single Pseudomonas bacterum, which itself has no capacity for degrading oil.

       At present, biological control of oil spills requires the use of a mixture of naturally occurring bacteria, each capable of degrading one component of the oil complex. In this way, oil is decomposed into simpler substances which can serve as food for aquatic life. However, for various reasons, only a portion of any such mixed culture survives to attack the oil spill. By breaking down multiple components of oil, Chakrabarty’s microorganism promises more efficient and rapid oil-spill control.

       The Board concluded that the new bacteria were not “products of nature,” because Pseudomonas bacteria containing two or more different energy-generating plasmids are not naturally occurring.

         Bergy involved a patent application for a pure culture of the microorganism Streptomyces vellosus found to be useful in the production of lincomycin, an antibiotic.

       This case does not involve the other “conditions and requirements” of the patent laws, such as novelty and nonobviousness. 35 U. S. C. §§ 102, 103.

       This same language was employed by P. J. Federico, a principal draftsman of the 1952 reeodification, in his testimony regarding that legislation: “[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. . . .” Hearings on H. R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951).

       The Plant Patent Act of 1930, 35 U. S. C. § 161, provides in relevant part:
      “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propogated plant or a plant found in an uncultivated state, may obtain a patent therefor. . . .”
      The Plant Variety Protection Act of 1970, provides in relevant part:
      “The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor. ...” 84 Stat. 1547, 7 U. S. C. § 2402 (a).
      See generally, 3 A. Deller, Walker on Patents, ch. EX (2d ed. 1964); R. Allyn, The First Plant Patents (1934).

       Writing three years after the passage of the 1930 Act, R. Cook, Editor of the Journal of Heredity, commented: “It is a little hard for plant men to understand why [Art. I, § 8] of the Constitution should not have been earlier construed to include the promotion of the art of plant breeding. The reason for this is probably to be found in the principle that natural products are not patentable.” Florists Exchange and Horticultural Trade World, July 15, 1933, p. 9.

       In 1873, the Patent Office granted Louis Pasteur a patent on “yeast, free from organic germs of disease, as an article of manufacture.” And in 1967 and 1968, immediately prior to the passage of the Plant Variety Protection Act, that Office granted two patents which, as the petitioner concedes, state claims for living micro-organisms. See Reply Brief for Petitioner 3, and n. 2.

       Even an abbreviated list of patented inventions underscores the point: telegraph (Morse, No. 1,647); telephone (Bell, No. 174,465); electric lamp (Edison, No. 223,898); airplane (the Wrights, No. 821,393); transistor (Bardeen & Brattain, No. 2,524,035); neutronic reactor (Fermi & Szilard, No.. 2,708,656); laser (Schawlow & Townes, No. 2,929,922). See generally Revolutionary Ideas, Patents & Progress in America, United States Patent and Trademark Office (1976).

       We are not to be understood as suggesting that the political branches have been laggard in the consideration of the problems related to genetic research and technology. They have already taken action. In 1976, for example, the National Institutes of Health released guidelines for NIH-sponsored genetic research which established conditions under which such research could be performed. 41 Fed. Reg. 27902. In 1978 those guidelines were revised and relaxed. 43 Fed. Reg. 60080, 60108, 60134. And Committees of the Congress have held extensive hearings on these matters. See, e. g., Hearings on Genetic Engineering before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess. (1975); Hearings before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 1st Sess. (1977); Hearings on H. R. 4759 et al. before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977).

       I read the Court to admit that the popular conception, even among advocates of agricultural patents, was that living organisms were unpatentable. See ante, a.t 311-312, and n. 8.

       But even if I agreed with the Court that the 1930 and 1970 Acts were not dispositive, I would dissent. This case presents even more cogent reasons than Deepsouth Packing Co. not to extend the patent monopoly in the face of uncertainty. At the very least, these Acts are signs of legislative attention to the problems of patenting living organisms, but they give no affirmative indication of congressional intent that bacteria be patentable. The caveat of Parker v. Flook, 437 U. S. 584, 596 (1978), an admonition to “proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress,” therefore becomes pertinent. I should think the necessity for caution is that much greater when we are asked to extend patent rights into areas Congress has foreseen and considered but has not resolved.

       The Court refers to the logic employed by Congress in choosing not to perpetuate the “dichotomy” suggested by Secretary Hyde. Ante, at 313. But by this logic the bacteria at issue here are distinguishable from a “mineral . . . created wholly by nature” in exactly the same way as were the new varieties of plants. If a new Act was needed to provide patent protection for the plants, it was equally necessary for bacteria. Yet Congress provided for patents on plants but not on these bacteria. In short, Congress decided to make only a subset of animate “human-made inventions,” ibid., patentable.

         If the 1930 Act’s only purpose were to solve the technical problem of description referred to by the Court, ante, at 312, most of the Act, and in particular its limitation to asexually reproduced plants, would have been totally unnecessary.

       Secretary Hyde’s letter was not the only explicit indication in the legislative history of these Acts that Congress was acting on the assumption that legislation was necessary to make living organisms patentable. The Senate Judiciary Committee Report on the 1970 Act states the Committee’s understanding that patent protection extended no further than the explicit provisions of these Acts:
      “Under the patent law, patent protection is limited to those varieties of plants which reproduce asexually, that is, by such methods as grafting or budding. No protection is available to those varieties of plants which reproduce sexually, that is, generally by seeds.” S. Rep. No. 91-1246, p. 3 (1970).
      Similarly, Representative Poage, speaking for the 1970 Act, after noting the protection accorded asexually developed plants, stated that “for plants produced from seed, there has been no such protection.” 116 Cong. Rec. 40295 (1970).


author: Me. Justice Brennan Mr. Justice Powell, Mr. Justice Rehnquist,

text:
    BROWN v. LOUISIANA
    No. 79-5364.
    Argued March 25, 1980
    Decided June 16, 1980

      BreNNan, J., announced the judgment of the Court and delivered an opinion, in which Stewart, Marshall, and BlackimuN, JJ., joined. Powell, J., filed an opinion concurring in the judgment, in which SteveNs, J., joined, post, p. 337. RehNQUist, J., filed a dissenting opinion, in which Burger, C. J., and White, J., joined, post, p. 337.

      John Lawrence argued the cause and filed a brief for petitioner.

      Thomas Chester argued the cause pro hac vice for respondent. With him on the brief were William J. Guste, Jr., Attorney General of Louisiana, Harry F. Connick, and Louise Korns.

   Me. Justice Brennan

announced the judgment of the Court and delivered an opinion, in which Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Blackmun joined.

Burch v. Louisiana, 441 U. S. 130 (1979), held that conviction of a nonpetty criminal offense by a nonunanimous six-person jury violates the accused’s right to trial by jury guaranteed by the Sixth and Fourteenth Amendments. The issue in this case is whether the constitutional principle announced in Burch is to be given retroactive application.

I

On July 31, 1978, petitioner Darnell Brown was charged by bill of information in Orleans Parish with simple burglary, a felony punishable by confinement in the parish prison or state penitentiary for a maximum term of 12 years. La. Rev. Stat. Ann. § 14:62 (West Supp. 1979). At the time, the Louisiana Constitution and Code of Criminal Procedure provided that such crimes should be tried by a jury of six persons, five of whom must concur to render a verdict. Before trial, petitioner filed a motion to quash pursuant to Art. 532 (9) of the Louisiana Code of Criminal Procedure, arguing that his “due process rights under the Sixth and the Fourteenth Amendments to the United States Constitution as enunciated in Ballew v. Georgia, [435 U. S. 223 (1978),] will be violated by a less than unanimous vote by a six person jury.” App. 5. Petitioner therefore requested the trial judge to order a jury of 12 or, in the alternative, to require a unanimous verdict of the jury of 6.

Petitioner’s motion was denied, and on August 23 his trial commenced before a six-member jury. That same afternoon, after deliberating for approximately one hour, the jury returned a verdict of guilty. At petitioner’s request, the court polled the jurors and ascertained that their vote was 5 to 1 to convict. Sentencing was set for August 30, at which time petitioner renewed his objection to the nonunanimous six-person verdict by a motion for new trial. The trial judge again denied the motion and sentenced petitioner to a term of 22 years’ imprisonment at hard labor.

Petitioner appealed his conviction to the Louisiana Supreme Court, assigning as principal error the trial judge’s refusal to grant the motion to quash. On April 17, 1979, while petitioner’s case was still pending on direct review in the Louisiana courts, Burch v. Louisiana, supra, was decided, holding unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six. Some five weeks later, on May 21, 1979, the Louisiana Supreme Court affirmed petitioner’s conviction. Although it implicitly acknowledged that Burch requires unanimous verdicts by six-person juries in all future prosecutions of simple burglary, the court nonetheless concluded, without elaboration, that “the rule of Burch, supra, should not be applied retroactively to juries empaneled prior to the date of the Burch decision.” 371 So. 2d 746, 748 (1979) (emphasis in original). We granted certiorari. 444 U. S. 990 (1979). We reverse.

II

Linkletter v. Walker, 381 U. S. 618 (1965), was the first instance in which the Court declined to apply a new doctrine respecting one of the provisions of the Bill of Rights retroactively for the benefit of a previously convicted defendant. In the intervening 15 years, we have often considered the question of the retroactivity of decisions expounding new constitutional rules of criminal procedure, and have endeavored to elaborate appropriate standards for determining which rules are to be accorded retrospective and which only prospective effect. From the welter of case law that has developed in this area, several unequivocal principles emerge to guide our analysis in the present case.

It is by now uncontroverted that “the Constitution neither prohibits nor requires retrospective effect.” Id., at 629. Thus, although before Linkletter new constitutional rules had been applied to cases that had become final before promulgation of the rule, see id., at 628, and n. 13, that decision firmly settled that “in appropriate cases the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application.” Id., at 628; Johnson v. New Jersey, 384 U. S. 719, 726-727 (1966).

Similarly, it is clear that resolution of the question of retro-activity does not automatically turn on the particular provision of the Constitution on which the new prescription is based. “Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.” Id., at 728. Accordingly, the test consistently employed by the Court to decide whether a new constitutional doctrine should be applied retroactively contemplates the consideration of three criteria: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967).

Moreover, our decisions establish that “[f foremost among these factors is the purpose to be served by the new constitutional rule,” Desist v. United States, 394 U. S. 244, 249 (1969), and that we will give controlling significance to the measure of reliance and the impact on the administration of justice “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” Id., at 251; Michigan v. Payne, 412 U. S. 47, 55 (1973); see also Hankerson v. North Carolina, 432 U. S. 233, 242-244 (1977) ; Adams v. Illinois, 405 U. S. 278, 280 (1972) (plurality opinion of Brennan, J.). “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Williams v. United States, 401 U. S. 646, 653 (1971) (plurality opinion of White, J.). Accord, Hankerson v. North Carolina, supra, at 243; Gosa v. May den, 413 U. S. 665, 679 (1973) (plurality opinion of Blackmun, J.); Ivan V. v. City of New York, 407 U. S. 203, 204 (1972).

Finally, we have recognized that the extent to which the purpose of a new constitutional rule requires its retroactive application “is necessarily a matter of degree.” Johnson v. New Jersey, supra, at 729. Constitutional protections are frequently fashioned to serve multiple ends; while a new standard may marginally implicate the reliability and integrity of the factfinding process, it may have been designed primarily to foster other, equally fundamental values in our system of jurisprudence. Not every rule that “tends incidentally” to avoid unfairness at trial must be accorded retroactive effect. Gosa v. Mayden, supra, at 680 (plurality opinion of Blackmun, J.). So, too, additional safeguards may already exist that minimize the likelihood of past injustices. In short, “[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities.’ ” Stovall v. Denno, supra, at 298 (quoting Johnson v. New Jersey, supra, at 729). And only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively.

Ill

With these principles in mind, then, we turn to consideration of the issue presented by this case: whether the rule of Burch v. Louisiana must be given retroactive effect. We conclude that it must.

A

The right to jury trial guaranteed by the Sixth and Fourteenth Amendments “is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.” Duncan v. Louisiana, 391 U. S. 145, 158 (1968). Trial by jury in serious criminal cases has long been regarded as an indispensable protection against the possibility of governmental oppression; the history of the jury’s development demonstrates “a long tradition attaching great importance to the concept of relying on a body of one’s peers to determine guilt or innocence as a safeguard against arbitrary law enforcement.” Williams v. Florida, 399 U. S. 78, 87 (1970). “Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.” Id., at 100.

Although we have held that the constitutional guarantee of trial by jury prescribes neither the precise number that can constitute a jury, Williams v. Florida, supra (six-person jury does not violate Sixth and Fourteenth Amendments), nor the exact proportion of the jury that must concur in the verdict, Apodaca v. Oregon, 406 U. S. 404 (1972) (10-to-2 vote in state trial does not violate the Constitution), we have also declared that there do exist size and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained. Thus Ballew v. Georgia, 435 U. S. 223 (1978), held that a reduction in the size of a jury to below six persons in nonpetty criminal cases raises such substantial doubts as to the fairness of the proceeding and the jury’s ability to represent the true sense of the community that it deprives the accused of his right to trial by j ury. For “much the same reasons,” we concluded in Burch that “conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee” and hence violates the Sixth Amendment as applied to the States through the Fourteenth. 441 U. S., at 138. Though the line separating the permissible jury practice from the impermissible may not be the brightest, cf. Burch v. Louisiana, supra, at 137; Ballew v. Georgia, 435 U. S., at 231-232 (opinion of Blacknum, J.); id., at 245-246 (opinion of Powell, J.), a line must be drawn somewhere, and the constitutional inviolability of that border must be scrupulously respected lest the purpose and functioning of the jury be seriously impaired.

We think it apparent that the rationale behind the constitutional rule announced in Burch mandates its retroactive application. Mr. Justice Blackmun’s opinion in Ballew cataloged the several considerations that led the Court to conclude that the operation of the jury was inhibited to a constitutionally significant degree by reducing its size to five members. Prominent among these concerns was the recognition, supported by a number of empirical studies, that a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person. Id., at 232-235. In addition, statistical and empirical data established that because of a concomitant decrease in the number of hung juries, a reduction in the size of the jury panel in criminal uases unfairly disadvantages one side — the defense. Id., at 236. Lastly, the opinion noted that the opportunity for meaningful and appropriate minority representation diminishes with the size of the jury. Id., at 236-237.

Identical considerations underlay our decision in Burch. The threat which conviction by a 5-to-0 verdict poses to the fairness of the proceeding and the proper role of the jury is not significantly alleviated when conviction is instead obtained by the addition of a sixth, but dissenting, ballot. When the requirement of unanimity is abandoned, the vote of this “additional” juror is essentially superfluous. The prosecution’s demonstrated inability to convince all the jurors of the accused’s guilt certainly does nothing to allay our concern about the reliability and accuracy of the jury’s verdict. And while the addition of another juror to the five-person panel may statistically increase the- representativeness of that body, relinquishment of the unanimity requirement removes any guarantee that the minority voices will actually be heard.

In sum, Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of its verdict. It is difficult to envision a constitutional rule that more fundamentally implicates “the fairness of the trial — the very integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S., at 639. “The basic purpose of a trial is the determination of truth,” Tehan v. United States ex rel. Shott, 382 U. S. 406, 416 (1966), and it is the jury to whom we have entrusted the responsibility for making this determination in serious criminal cases. Any practice that threatens the jury’s ability properly to perform that function poses a similar threat to the truth-determining process itself. The rule in Burch was directed toward elimination of just such a practice. Its purpose, therefore, clearly requires retroactive application.

B

Due regard for countervailing considerations — the State's good-faith reliance on the old standards and the impact of retroactivity on the administration of justice — does not counsel a contrary result. The element of justifiable reliance on pre-Burch standards is minimal here. Unlike other cases that have been accorded prospective effect only, Burch did not overrule any prior decisions of this Court or invalidate a practice of heretofore unquestioned legitimacy. See, e. g., Desist v. United States, 394 U. S., at 250-251; Stovall v. Denno, 388 U. S., at 300; Tehan v. United States ex rel. Shott, supra, at 417. “Therefore, to build a ease for good-faith reliance the State must wring from our decision [s] the negative implication” that conviction by a nonunanimous six-person jury does not offend the Sixth Amendment's guarantee. See Adams v. Illinois, 405 U. S., at 293 (Douglas, J., dissenting). Yet if any implication is to be drawn from our opinions prior to Burch, it could only be that such a procedure was of doubtful constitutionality. Williams v. Florida, 399 U. S. 78 (1970), for example, highlighted the fact that the six-member jury approved in that case was required to render a unanimous verdict. Id., at 100, and n. 46. And Burch’s rule was distinctly foreshadowed by our decision in Ballew, which was handed down more than five months before petitioner’s trial and which was specifically cited to the trial court as mandating unanimity in the verdict of a six-member jury.' See supra, at 325-326. Cf. Berger v. California, 393 U. S. 314, 315 (1969).

Similarly, we are confident that retroactive application of the Burch rule will not have a devastating impact on the administration of the criminal law. It appears that by 1979 only two States — Louisiana and Oklahoma — permitted conviction of nonpetty offenses by a nonunanimous six-member jury, see Burch v. Louisiana, 441 U. S., at 138, and n. 12, and Louisiana, at least, did not institute its scheme until 1975. Furthermore, today’s decision will not affect the validity of all convictions obtained under Louisiana’s unconstitutional jury practice during that 4-year period, but only those in which it can be shown that the vote was in fact less than unanimous. Thus the number of persons who would have to be retried or released does not approach the magnitude involved in some of our previous cases. See, e. g., Linkletter v. Walker, 381 U. S., at 637 (retroactive application would “tax the administration of justice to the utmost”); Tehan v. United States ex rel. Shott, 382 U. S., at 419 (“an impact upon the administration of their criminal law so devastating as to need no elaboration”); DeStefano v. Woods, 392 U. S. 631, 634 (1968). What little disruption to the administration of justice results from retroactive application of Burch “must be considered part of the price we pay for former failures to provide fair procedures.” Adams v. Illinois, supra, at 297 (Douglas, J., dissenting).

Accordingly, the judgment of the Supreme Court of Louisiana is reversed. The case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Powell,

with whom Mr. Justice Stevens joins, concurring in the judgment.

This Court announced its decision in Burch v. Louisiana, 441 U. S. 130 (1979), while the petitioner’s objection to the nonunanimous verdict was pending on direct appeal. Ante, at 326. Since I believe that new constitutional rules should apply retroactively “in cases still pending on direct review,” Hankerson v. North Carolina, 432 U. S. 233, 248 (1977) (Powell, J., concurring in judgment), I concur in the judgment reversing the petitioner’s conviction.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice White join,

dissenting.

I am in agreement with the Court on the content of the applicable standards for gauging the need for retroactivity, but I cannot concur in the Court’s application of those standards in this case. The most important question here is whether it is probable that the Louisiana juries convicting on a vote of 5 to 1 convicted innocent persons. As the Court states, “only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively.” Ante, at 329. Neither our precedents nor common experience supports the Court’s conclusion that the 5-to-l vote is inherently unreliable. Just as I think the Court has overstated the probabilities of jury error, I think it has unfairly understated the State’s reliance on our prior law and the burdens on the administration of the Louisiana justice system which will be associated with today’s ruling.

A

In Williams v. United States, 401 U. S. 646, 655, n. 7 (1971), we held that retroactivity is only appropriate where the former practice “presents substantial likelihood that the results of a number of those trials were factually incorrect.” In Hankerson v. North Carolina, 432 U. S. 233, 243 (1977), we similarly concluded that the “major purpose” of the new rule must be to correct a process which “substantially impairs its truth-finding function” raising “serious questions about the accuracy of guilty verdicts in past trials” before a rule should be retroactively imposed. Quite simply, when five-sixths of the deliberating jurors reach a finding of guilt, I do not think that there is a substantial probability that their decision was wrong.

The Court stresses the part of Mr. Justice Blackmun’s opinion in Ballew v. Georgia, 435 U. S. 223 (1978), suggesting that some studies had indicated that the reliability of the truth-finding process declines when the jury size is reduced. But I do not think that those citations can be used here to support the conclusion that the jury verdicts in issue were probably inaccurate. First, the opinion in Ballew relies heavily on the conclusions that a jury of only five is too small in number to ensure effective deliberation and to ensure that someone among the group will have memory abilities sufficient to aid the jury in those deliberations. Id., at 241. These concerns are satisfied when the jury is composed of six members, even if one of those members is in the dissent. In fact, as indicated by Johnson v. Louisiana, 406 U. S. 356, 361 (1972), the presence of a dissenting juror strongly supports the inference that the jury has engaged in meaningful deliberation:

“We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose — when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt.”

Thus the jury that convicted petitioner satisfied the requirements of jury deliberation that the Court in Ballew found so critical. Further, our cases have indicated quite clearly that the degree of persuasion evidenced by a 5-to-l vote is sufficient to meet the requirement that guilt be proved beyond a reasonable doubt. In Johnson, supra, this Court held that a 9-to-3 verdict could satisfy due process, or in other words, satisfy the requirement that guilt be proved beyond a reasonable doubt. The degree of persuasion found acceptable there was far less impressive than that demonstrated by the jury which convicted petitioner. And yet we said that guilt was proved beyond a reasonable doubt in Johnson. I think here, too, we must then conclude that guilt was proved beyond a reasonable doubt. Since that is true, there has been no constitutionally unacceptable risk of erroneous convictions and Burch need not be applied retroactively.

There is a further weakness in the Court’s estimation of the probabilities. We simply have no way of knowing whether the person voting to acquit would have held firm with further pressure by his fellow jurors. The Court’s speculation about what would have happened had unanimity been required of Louisiana’s six-man juries amounts to just that: speculation. As long as this Court has approved “Allen charges” in federal cases over which it may exercise its supervisory authority, it is difficult to say that a holdout juror might not ultimately have been persuaded by the five-member majority.

The Court’s ruling is also at odds with our decisions in Gosa v. Mayden, 413 U. S. 665 (1973), and DeStefano v. Woods, 392 U. S. 631 (1968). In both of those cases, the Court declined to give retroactive effect to rulings that the right to jury trial had been totally denied under circumstances where our system of fairness required that it be afforded. Nevertheless, as we stated in DeStefano, the “values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial.” Id., at 634. The deprivations addressed in those cases were no less based on procedural reliability than was the decision in Burch v. Louisiana, 441 U. S. 130 (1979).

B

I also think that the Court has unduly minimized Louisiana’s reliance on pre-Burch standards, and greatly underestimated the impact its ruling will have on the Louisiana judicial system. We have every reason to credit Louisiana with the presumption that its law was enacted in good faith. Prior to 1974, the Louisiana Constitution allowed for conviction by unanimous five-person juries for certain offenses. La. Const., Art. 7, §41 (1921). In 1974 this constitutional provision was replaced with the nonunanimous six-person jury provision. The coordinator of legal research for the Constitutional Convention explained in 1974 that he believed this provision satisfied the Federal Constitution, reasoning:

“A six-man jury was upheld in Williams v. Florida, 399 U. S. 78 (1970). If 75 per cent concurrence (%2) was enough for a verdict as determined in Johnson v. Louisiana, 406 U. S. 356 (1972), then requiring 83 per cent concurrence (%) ought to be within the permissible limits of Johnson.” Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. 1, 56, n. 300 (1974).

The record similarly suggests that the administrative impact is substantial. In the first four months of 1979 in just Orleans Parish alone, 39 defendants were tried by six-person juries. Brief for Respondent 24, n. 43. The various courts in Louisiana apparently do not necessarily keep a record of the jury vote. Id., at 28, n. 49. With this large number of six-person jury trials, the potential for disruption is substantial. And although the Court states that the decision will only have an impact where the defendant was “in fact” convicted by less than six, how is it to be established what “in fact” occurred without clear records? Ante, at 336. As stated in the opinion of Mr. Justice Blackmun in Gosa, supra:

“Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses ... no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.” 413 U. S., at 685.

Since Burch and Ballew held little more than that “lines must be drawn somewhere” 441 U. S., at 137; 435 U. S., at 239, Louisiana should not be required to retry defendants found guilty by reliable factfinders.

       Article 1, § 17, of the Louisiana Constitution of 1974 provides:
      “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may he confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.” (Emphasis added.)
      At the time of petitioner’s trial, Art. 782 (A), La. Code Crim. Proc. Ann. (West Supp. 1978), provided:
      “Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, five of whom must concur to render a verdict.” (Emphasis added.)
      Following our decision in Burch v. Louisiana, 441 U. S. 130 (1979), this statutory provision was amended to require a unanimous verdict of six-person juries. 1979 La. Acts, No. 56, § 2.

       Because petitioner had two prior convictions, he was charged and sentenced as a habitual offender under La. Rev. Stat. Ann. § 15:529.1 (West Supp. 1979).

       Cf. State v. Jackson, 370 So. 2d 570, decided April 19, 1979, in which the Louisiana Supreme Court held that Burch applies to all trials commenced after that date.

       See, e. g., Tehan v. United States ex rel. Shott, 382 U. S. 406, 415 (1966); Johnson v. New Jersey, 384 U. S. 719, 729-730 (1966); Gosa v. Mayden, 413 U. S. 665, 681-682 (1973) (plurality opinion of Blackmun, J.).

       See, e. g., Johnson v. New Jersey, supra, at 730; Stovall v. Denno, 388 U. S. 293, 299 (1967); Michigan v. Payne, 412 U. S. 47, 54 (1973).

       The distinguishing characteristic of those new constitutional doctrines that are to be given retroactive effect has been described in myriad formulations. See, e. g., Johnson v. New Jersey, supra, at 727-728 (“the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent’ ”); Stovall v. Denno, supra, at 298 (“rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial”); Roberts v. Russell, 392 U. S. 293, 295 (1968) (“the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined”); Williams v. United States, 401 U. S. 646, 653 (1971) (opinion of White, J.) (“the purpose of the new constitutional standard [is] to minimize or avoid arbitrary or unreliable results”); id., at 655, n. 7 (“the use of such a ‘condemned practice’ in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect”); United States v. U. S. Coin & Currency, 401 U. S. 715, 723 (1971) (“a procedural rule which . . . undermine[s] the basic accuracy of the factfinding process at trial”); id., at 724 (“the failure to employ such rules at trial meant there was a significant chance that innocent men had been wrongfully punished in the past”); Michigan v. Payne, supra, at 61-62 (Marshall, J., dissenting) (“a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the acquittal of the defendant”). While the precise verbalisms may vary, all encompass the notion that any rule which raises substantial doubts about the reliability of the jury’s verdict should be applied retroactively.

       Mr. Justice BlackmuN announced the judgment of the Court and delivered an opinion in which Mr. Justice SteveNS joined. 435 U. S., at 224. Mr. Justice BrenNAN, Mr. Justice Stewart, and Mr. Justice Marshall joined Mr. Justice Blackmukt’s opinion insofar as it held that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons, but were of the view that the statute upon which the criminal prosecution was predicated was overbroad and therefore facially unconstitutional. Id,., at 246. Mr. Justice White filed a statement concurring in the judgment, id., at 245, and Mr. Justice Powell, joined by The Chief Justice and Mr. Justice RehNquist, filed a separate opinion concurring in the judgment. Ibid.

       Almost all of the empirical research cited in Mr. Justice BlackmuN’s opinion, see 435 U. S., at 231-232, n. 10, had been prompted by Williams v. Florida, 399 U. S. 78 (1970). In comparing 12- and 6-member juries, the Court there observed: “What few experiments have occurred — usually in the civil area — indicate that there is no discernible difference between the results reached by the two different-sized juries.” Id., at 101.

       The data also showed that jury verdicts become less consistent as panel size decreases, a result that not only reduces the likelihood that a given jury will reach a “correct” result — that is, one that truly represents the consensus of the community — but also produces a greater proportion of aberrant compromise verdicts. See 435 U. S., at 234-235.

       There are three reasons why this is so. First, because as a practical matter the State will decline to reprosecute a given proportion of cases that have produced hung juries in a prior trial, a hung jury may effectively serve as an acquittal. Second, the effects of time on witnesses’ memories and the benefits of exposure to the State’s case will generally aid the defendant in any retrial. Lastly, because studies show that jurors are more prone to convict than acquit, see id., at 235, and n. 19, a reduction in the number of hung juries will lead to a comparatively greater increase in the number of convictions than acquittals, thus operating to the defendant’s disadvantage.

       On the basis of these considerations, Mr. Justice Blackmun’s opinion concluded:
      “[T]he assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six. Because of the fundamental importance of the jury trial to the American system of criminal justice, any further reduction that promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities, attains constitutional significance.” Id., at 239.

       A procedure that permits conviction by the nonunanimous verdict of a six-member jury significantly decreases the likelihood that the views of a minority faction will produce a hung jury, thus creating a further imbalance to the detriment of the defense. See n. 10, supra. If a minority viewpoint is shared by 10% of the community, a 12-member jury may be expected to include at least 1 minority representative 72% of the time, a 6-member jury would contain 1 such person 47% of the time, and a 5-member jury only 41% of the time. More important for our purposes, however, a six-member jury may be expected to include two or more minority voices in only 11% of the cases. As one acknowledged authority on jury research has explained:
      “The important element to observe is that the abandonment of the unanimity rule is but another way of reducing the size of the jury. But it is reduction with a vengeance, for a majority verdict requirement is far more effective in nullifying the potency of minority viewpoints than is the outright reduction of a jury to a size equivalent to the majority that is allowed to agree on a verdict.” Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710, 722 (1971). See also M. Saks, Jury Verdicts 99 (1977).

       Nonetheless, respondent contends that the question of the retroactive application of Burch is controlled by DeStefano v. Woods, 392 U. S. 631 (1968), in which the Court refused to give retroactive effect to the extension in Duncan v. Louisiana, 391 U. S. 145 (1968), to state criminal defendants of the right to jury trial in serious cases. Respondent argues that if the complete absence of a jury does not impair the factfind-ing process so substantially as to require retroactivity, then surely the mere presence of a single dissenting juror ought not to compel retroactive application.
      It bears repeating, however, that “the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of . the Constitution on which the dictate is based.” Johnson v. New Jersey, 384 U. S., at 728. Thus our decision not to grant new trials, with juries, to all those who had been convicted of serious criminal offenses in trials without juries does not necessarily mean that a constitutional rule directed toward ensuring the proper functioning of the jury in those eases in which it has been ;provided must also be given only prospective effect. Cf. Witherspoon v. Illinois, 391 U. S. 510, 523, n. 22 (1968) (newly announced standards for selecting juries in capital cases must be applied retroactively). Rather, “we must determine retroactivity ‘in each case’ by looking to the peculiar traits of the specific ‘rule in question.’” Johnson v. New Jersey, supra, at 728.
      Once this principle is realized, it should be clear that today’s holding is in no way inconsistent with DeStefano. While the Court there acknowledged that the right to jury trial generally tends to prevent arbitrariness and repression, 392 U. S., at 633, it also recognized that the decision in Duncan did not rest on the premise “‘that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.’ ” 392 U. S., at 633-634. See also Daniel v. Louisiana, 420 U. S. 31 (1975); Gosa v. Mayden, 413 U. S., at 680-681. Because other safeguards existed to ensure the integrity of the factfinding process, and in light of both the State's justifiable reliance on past opinions of this Court and the devastating impact on the administration of justice that retroactivity would entail, Duncan was applied prospectively only.
      The instant case simply does not fit within DeStefano’s mold. As we have discussed in the text, the failure to provide petitioner with the constitutional guarantees announced in Burch raises serious doubts about the fairness of his trial and the reliability of the factfinding process. And as we explain below, retroactive application of Burch should not produce a significant disruption in the State’s administration of its criminal laws.

       In Louisiana prior to 1968, cases in which the defendant could not be sentenced to confinement at hard labor were tried by the judge without a jury; cases in which punishment at hard labor was optional, but not mandatory, were tried by a unanimous jury of 5; all other felonies were tried by a jury of 12. Following our decision in Duncan v. Louisiana, supra, the Louisiana Legislature amended its criminal code to require jury trials for all nonpetty offenses. See generally Comment, Jury Trial in Louisiana — Implications of Duncan, 29 La. L. Rev. 118 (1968). In 1974, the Louisiana Legislature, through revision of the State Constitution and Code of Criminal Procedure, again amended its jury trial provisions to allow for conviction by nonunanimous six-member juries in cases in which punishment may be imprisonment at hard labor. 1974 La. Acts, Ex. Sess., Nos. 23 and 25. See n. 1, supra. These alterations were effective January 1, 1975.
      Oklahoma appears to have permitted nonunanimous six-member jury verdicts only in trials' 'for misdemeanors and in proceedings for the violation of ordinances or regulations of cities and towns. See Okla. Const., Art. 2, § 19.


author: Mr. Justice Stewart Mr. Justice Rehnquist,

text:
    HICKS v. OKLAHOMA
    No. 78-6885.
    Argued March 26, 1980
    Decided June 16, 1980
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNnaN, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, post, p. 347.

      David M. Ebel, by appointment of the Court, 444 U. S. 988, argued the cause for petitioner. With him on the briefs was Richard A. Sonntag.

      Janet L. Cox, Assistant Attorney General of Oklahoma, argued the cause pro hac vice for respondent. With her on the brief was Jan Eric Cartwright, Attorney General.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was brought to trial in an Oklahoma court on a charge of unlawfully distributing heroin. Since he had been convicted of felony offenses twice within the preceding 10 years, the members of the jury were instructed, in accordance with the habitual offender statute then in effect in Oklahoma, that, if they found the petitioner guilty, they “shall assess [the] punishment at forty (40) years imprisonment.” The jury returned a verdict of guilt and imposed the mandatory 40-year prison term.

Subsequent to the petitioner’s conviction, the provision of the habitual offender statute under which the mandatory 40-year prison term had been imposed was in another case declared unconstitutional by the Oklahoma Court of Criminal Appeals. Thigpen v. State, 571 P. 2d 467, 471 (1977). On his appeal, the petitioner sought to have his 40-year sentence set aside in view of the unconstitutionality of this statutory provision. The Court of Criminal Appeals acknowledged that the provision was unconstitutional, but nonetheless affirmed the petitioner’s conviction and sentence, reasoning that the petitioner was not prejudiced by the impact of the invalid statute, since his sentence was within the range of punishment that could have been imposed in any event. We granted certiorari to consider the petitioner’s contention that the State deprived him of due process of law guaranteed to him by the .Fourteenth Amendment. 444 U. S. 963.

By statute in Oklahoma, a convicted defendant is entitled to have his punishment fixed by the jury. Okla. Stat., Tit. 22, § 926 (1971). Had the members of the jury been correctly instructed in this case, they could have imposed any sentence of “not less than ten . . . years.” Okla. Stat., Tit. 21, § 51 (A)(1) (1971). The possibility that the jury would have returned a sentence of less than 40 years is thus substantial. It is, therefore, wholly incorrect to say that the petitioner could not have been prejudiced by the instruction requiring the jury to impose a 40-year prison sentence.

It is argued that all that is involved in this case is the denial of a procedural right of exclusively state concern. Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. See Vitek v. Jones, 445 U. S. 480, 488-489, citing Wolff v. McDonnell, 418 U. S. 539; Greenholtz v. Nebraska Penal Inmates, supra; Morrissey v. Brewer, 408 U. S. 471. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner’s right to liberty is a denial of due process of law.

The State argues, however, that, in view of the revisory authority of the Oklahoma Court of Criminal Appeals, the petitioner had no absolute right to a sentence imposed by a jury. See Okla. Stat., Tit. 22, § 1066 (1971) (“The Appellate Court may reverse, affirm or modify the judgment appealed from. . .”). The argument is unpersuasive. The State concedes that the petitioner had a statutory right to have a jury fix his punishment in the first instance, and this is the right that was denied. Moreover, it is a right that substantially affects the punishment imposed. No case has been cited to us in which the Court of Criminal Appeals has increased a sentence on appeal, and the State’s Assistant Attorney General indicated at oral argument that it was doubtful whether the appellate court had power to do so. In consequence, it appears that the right to have a jury fix the sentence in the first instance is determinative, at least as a practical matter, of the maximum sentence that a defendant will receive. Nor did the appellate court purport to cure the deprivation by itself reconsidering the appropriateness of the petitioner’s 40-year sentence. Rather, it simply affirmed the sentence imposed by the jury under the invalid mandatory statute. In doing so, the State deprived the petitioner of his liberty without due process of law.

Accordingly, the judgment is vacated, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion.

So ordered.

Mr. Justice Rehnquist,

dissenting.

The Court concludes that the Oklahoma Court of Criminal Appeals denied petitioner due process of law by refusing to vacate the sentence imposed at his trial for unlawful distribution of heroin. That conclusion, in turn, depends on the Court’s assertion that petitioner was impermissibly denied his state-created right to be sentenced by a jury. Because I believe that the Court either mischaracterizes the right conferred by state law or erroneously assumes a deprivation of that right, I dissent.

The Court is undoubtedly correct that Oklahoma law does confer a right to have a sentence imposed by a jury. Okla. Stat., Tit. 22, § 926 (1971). But it is equally true that petitioner was sentenced by a jury. The question is whether that sentence was validly imposed, either as a matter of state or federal law. For if the petitioner was constitutionally sentenced by his jury in the first instance, he has been afforded the process the State guaranteed him. The Oklahoma court found that petitioner was not properly sentenced. If this conclusion rested on an interpretation of state law, or a correct interpretation of federal law, then I would have less difficulty agreeing with the Court that petitioner was entitled to a new jury sentencing under principles of due process. But the Court fails to inquire into the basis of the Oklahoma court’s conclusion that petitioner was improperly sentenced in the first instance. That question is central to the resolution of the due process issue presented by the case. The Court simply assumes that the Oklahoma court found that petitioner had not been sentenced in conformity with state law. This is an assumption, however, that cannot be divined from the available state cases. Those cases in fact strongly indicate that the decision of the state court here rested on an erroneous interpretation of federal law, not state law. If so, the Oklahoma court decision refusing to afford petitioner an opportunity to be resentenced by a jury would be correct, albeit for the wrong reason.

The issue in this case, then, is whether petitioner’s original sentence denied him equal protection. The Oklahoma sentencing statute in effect at the time of petitioner’s trial was designed to provide for increased sentences to multiple offenders of the criminal laws. Under Okla. Stat., Tit. 21, § 51 (A) (Supp. 1977) a defendant who is found guilty of an offense punishable by a term of imprisonment in excess of 5 years, after having been convicted of one offense punishable by imprisonment, is subject to sentence, fixed by the jury, ranging from 10 years to apparent infinity. (Oklahoma juries have apparently exercised this discretion with great relish, imposing sentences as long as 1,500 years in prison for second-time offenders. See Collins v. State, 500 P. 2d 1333 (Crim. App. 1972).) Defendants convicted of more than one prior offense were subject to sentencing under § 51 (B). Section 51 (B) did not invest the jury with discretion to determine the length of the term of imprisonment. Instead the section provided a formula for determining the length of the mandatory sentence to be imposed by a jury pursuant to instruction. This statutory scheme permitted the jury to impose sentences on defendants with only one prior conviction far in excess of those which were specified for defendants with two or more prior convictions. In Thigpen v. State, 571 P. 2d 467 (Okla. Crim. App. 1977), decided after petitioner’s mandatory sentence was imposed by the jury, a defendant with only one prior conviction challenged the constitutionality of the statute. The court concluded that this potential for disparate sentences rendered § 51 (B) “unconstitutional,” and struck that section.

The Thigpen opinion does not indicate whether this conclusion is based on an interpretation of the State or Federal Constitution. The opinion does indicate, however, that in determining the constitutionality of the Act, the court had relied on an advisory opinion submitted by an Oklahoma state district judge. 571 P. 2d, at 471, n. 3. That advisory opinion is attached as an appendix to the court opinion. The position advocated in the advisory opinion is that the Oklahoma sentencing statute violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because of the potential for longer terms of imprisonment to those convicted of only one prior offense. The author of the advisory opinion relies exclusively on federal law in reaching this determination.

In this case, the Oklahoma court thought the federal equal protection holding in Thigpen applied to petitioner’s sentencing as well. I cannot agree. Petitioner was a third-time offender who was given the benefit of the more lenient mandatory sentencing provisions before the decision in Thigpen. Thus he was not within the class of one-time offenders subject to more burdensome treatment under the statute. Since petitioner was a member of the favored class, I cannot agree that petitioner’s sentencing denied him equal protection or any other rights guaranteed under the Federal Constitution, I am unable to agree that due process required the State to afford him any additional opportunity to be sentenced by another jury, and would therefore affirm the judgment of the Court of Criminal Appeals of Oklahoma.

       See 1976 Okla. Sess. Laws, ch. 94, § 1, codified at Okla. Stat., Tit. 21, §61 (B) (Supp. 1977). The text of §51 provided:
      “(A) Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows:
      “1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten (10) years.
      “2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.
      “3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.
      “(B) Every person who, having been twice convicted of felony offenses, commits a third, or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable, had it been a first offense; provided, that felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location; provided, further, that nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.”
      The Oklahoma Legislature has since amended §51 (B). See 1978 Okla. Sess. Laws, ch. 281, § 1, Okla. Stat., Tit. 21, §51 (B) (Supp. 1979).

       “Defendant asserts in his fourth assignment of error that [Okla. Stat., Tit. 21,] § 51 (B), under which he was sentenced, is unconstitutional. We agree. This question was laid to rest by this Court in Thigpen v. State, Okla. Cr., 571 P. 2d 467 (1977). We must find however, that the defendant was not prejudiced by the use of this statute in that the sentence imposed is within the range of punishment authorized by the provisions of [Okla. Stat., Tit. 21,] § 51 (A).” Hicks v. State, No. F-77-751 (Mar. 8, 1979).
      The decision of the Oklahoma Court of Criminal Appeals is unreported. A petition for rehearing was denied April 6,1979.

       Only if the jury fails to do so may the trial court impose sentence. Okla. Stat., Tit. 22, § 927 (1971).

       Because of our disposition of the case, we do not reach the petitioner’s several other contentions.

       Because the appellate court did not purport to resentenee the petitioner, we have no occasion to consider his contention that due process of law requires that the State provide him with notice and a hearing, including the opportunity to present mitigating evidence, before appellate sentencing. See McGautha v. California, 402 U. S. 183, 218-220; Specht v. Patterson, 386 U. S. 605, 606. See also Mempa v. Rhay, 389 U. S. 128.

      The text of Okla. Stat., Tit. 21, §51 (Supp. 1977), provides:
      “(A) Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows:
      “1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten (10) years.
      “2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.
      “3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.
      “(B) Every person who, having been twice convicted of felony offenses, commits a third, or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable, had it been a first offense; provided, that felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location; provided, further, that nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.”