In the case of Alabama v. Smith, 1988, the U.S. Supreme Court ruled that a judge can impose a harsher sentence after retrial without violating the defendant's constitutional protection against double jeopardy. The case involved a man named Percy Lee Smith who was initially sentenced to life imprisonment for robbery and attempted murder in Alabama but won an appeal for a new trial based on improper jury instructions from his first trial. However, at his second trial he received two life sentences plus additional time - significantly more severe than his original punishment. The court held that any presumption of vindictiveness which may have existed where there is fear that increased sentencing might "chill" defendants' assertion of their rights does not apply in this context because circumstances may change between trials such as different judges or newly discovered evidence.

In the dissenting opinion for Alabama v. Smith, Justice Marshall, joined by Justice Brennan and Justice Stevens, argued that the majority's decision was a departure from precedent set in North Carolina v. Pearce which held that an increased sentence on retrial could be justified only by reasons not known to the original trial judge at sentencing. They contended that this rule should apply even when a defendant successfully attacks his conviction on appeal or collaterally attacks his sentence because it protects against vindictiveness in resentencing. The dissent also pointed out that there were no new facts presented during Smith’s second trial to justify harsher punishment; thus, they believed it violated due process rights under the Fourteenth Amendment as per Pearce’s guidelines. Furthermore, they disagreed with majority's view of presumption of vindictiveness being applicable only when there is reasonable likelihood of actual vindictiveness; instead arguing such presumption should exist whenever circumstances enhance possibility of retaliation towards defendant for exercising legal rights.