For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Schettino and Haneman. For modification -- Justices Jacobs and Hall. The opinion of the court was delivered by Weintraub, C.J. Francis, J. (concurring). Jacobs and Hall, J.J. (dissenting).
On April 8, 1968 the United States Supreme Court decided United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2 d 138, declaring invalid a federal kidnapping statute under which a defendant who insisted upon trial by jury could suffer the death penalty. Although our homicide statute levies no such burden on an assertion of the right to jury, nonetheless the thesis of Jackson is arguably so sweeping as to embrace our statute. In a state of seven million inhabitants wherein homicides unhappily are prevalent, the question whether our murder statute is valid, and if not, what part remains, is obviously urgent. We therefore invited a prompt presentation of the issue.
In the Forcella and Funicello matters the issue arises on post-conviction attacks upon judgments of death heretofore affirmed on direct appeal. State v. Forcella, 35 N.J. 168 (1961), certiorari denied, 369 U.S. 866, 82 S. Ct. 1035,
8 L. Ed. 2 d 86 (1962); State v. Funicello, 49 N.J. 553 (1967), certiorari denied, 390 U.S. 911, 88 S. Ct. 837, 19 L. Ed. 2 d 882 (1968). Other questions raised in those matters will also be considered. In Ornes and in Perez, the Jackson issue is raised by a motion before us to eliminate the death penalty from the forthcoming trial of the indictments. We invited that interlocutory motion to get to the Jackson question, but we declined to accept unrelated issues which Ornes and Perez presented to the trial court.
Jackson involved a simple situation. As construed, the federal kidnapping statute subjected a defendant to the risk of the death sentence if he was tried by jury, but no more than life imprisonment if tried by a judge. Upon that interpretation, it is perfectly plain that the Sixth Amendment right to jury trial was infringed. To impose upon one who pleads not guilty an extra penalty because he insists upon a jury is so patently bad that no more need be said. The statute was held invalid by the trial court in those elementary terms. United States v. Jackson, 262 F. Supp. 716 (D. Conn. 1967).
Our homicide statute harbors no such problem. The death penalty does not depend upon whether the not-guilty plea is tried with or without a jury. Indeed the right to trial by jury cannot be waived. R.R. 3:7-1(a). The issue of guilt must be tried by a jury, and the jury alone decides, if the verdict is for first-degree murder, whether the punishment shall be death or life imprisonment, N.J.S.A. 2 A:113-4,*fn1 and the jury must be unanimous as to punishment.
State v. Reynolds, 41 N.J. 163, 187-188 (1963), certiorari denied, 377 U.S. 100, 84 S. Ct. 1930, 1934, 12 L. Ed. 2 d 1050 (1964). Thus, unlike the kidnapping statute involved in Jackson, there is no pressure on one who stands trial to forego his right to a jury.
Our problem arises because under the federal kidnapping statute a defendant could avoid the death penalty not only by waiving a jury, but also by pleading guilty, and the opinion in Jackson speaks of both bases of immunity from the death sentence. If the second basis, i.e., a guilty plea, is itself a separate ground for the result in Jackson, then Jackson may implicate our murder statute, for although our statute expressly prohibits a guilty plea, it does permit the trial court to accept a plea of non vult to the indictment, whereupon the sentence shall be either life imprisonment or the term of years authorized for murder in the second degree. N.J.S.A. 2 A:113-3.*fn2 Thus our statute resembles the federal kidnapping act in the respect that if a defendant offers a non vult plea (and it is tantamount to a plea of guilt), he cannot suffer death. But even here our statute is different, for whereas, as we will later point out,*fn3 the federal defendant had, in practical effect for present purposes, a right to plead guilty under the kidnapping act, the state defendant has no right to plead non vult. The acceptance of
the non vult plea rests in the discretion of the court, and in deciding whether to accept the plea, the judge passes upon the question whether the death sentence would be appropriate, and will refuse the plea if under the circumstances there should be a jury's determination of punishment. State v. Belton, 48 N.J. 432 (1967); State v. Sullivan, 43 N.J. 209, 246 (1964), certiorari denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2 d 477 (1966).
As we noted above, the trial court in Jackson found the federal statute contravened the Sixth Amendment right to jury trial in that a defendant who contested guilt could suffer a greater punishment if he insisted upon his right to a jury. The opinion of the majority of the Supreme Court in Jackson cites Spillers v. State, 436 P. 2 d 18 (Nev. Sup. Ct. 1968), where a statute relating to rape and providing for punishment by imprisonment for not less than 20 years or "death, if the jury by their verdict affix the death penalty," was also found to infringe the right to trial by jury. The dissenting opinion in the Supreme Court in Jackson also speaks solely in terms of the right to jury trial. If the majority in Jackson held only that the Sixth Amendment was violated, Jackson could not reach our statute, for the right to trial by jury is not at all involved when, as under our statute, the quantum of punishment does not turn upon whether the trial is by a judge or by a jury. This is made clear by a hypothetical case: if a statute provided that the death penalty may be imposed when guilt is found either by judge or by jury, but that life imprisonment is the maximum penalty upon a plea of guilty, it could not be said the right to jury trial is burdened. Such a statute would no more burden that right than it would burden any other Sixth Amendment right relating to the mode or manner of a trial of a contested issue, i.e., "the right * * * to be confronted with the witnesses against him" or the right "to have compulsory process for obtaining witnesses in his favor" or the right to the assistance of counsel for his defense. Rather it is the right to defend which the
hypothetical statute would involve, and that would bring into view the Fifth Amendment privilege against compulsory self-incrimination rather than the Sixth Amendment jury right.
As we have said, under our murder statute the death penalty is not contingent upon whether an accused defends before a jury or before the court alone, and in fact all who defend must do so before a jury. Hence the sole possible challenge to our statute is that it offends the Fifth Amendment in that the provision for a plea of non vult may improperly induce defendants to waive their privilege against compulsory self-incrimination and to submit to a judgment of conviction.
Although the federal statute obviously ran afoul of the Sixth Amendment, yet, as we have noted, the majority opinion in Jackson did speak also of the Fifth Amendment. Since the federal statute was plainly invalid under the Sixth Amendment, of course no more had to be said to strike it down; and if a limitation of punishment upon a plea of guilty would necessarily violate the Fifth, there was no need to rely also upon the Sixth. But a court may deliberately rest a result upon two distinct, independent bases. The question is whether the majority in Jackson did so. As we read their opinion, the two propositions were not separately stated but rather were intertwined, thus suggesting that not all members of the majority were ready to say that a statute which did no more than limit the penalty upon acceptance of a guilty plea must violate the Fifth Amendment.
Thus the majority opinion states the issue in these terms, 390 U.S. at 581, 88 S. Ct. at 1216, 20 L. Ed. 2 d, at p. 138:
"* * * Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and
to deter exercise of the Sixth Amendment right to demand a jury trial. * * *"
We have underscored "the right to contest their guilt before a jury." As we have already shown, the right to a jury trial is irrelevant to the Fifth Amendment issue, for a defendant who can escape the death penalty by agreeing to contest guilt before a judge alone is under no pressure to plead guilty. Thus the use of the quoted words in the statement of the problem indicates that the majority was not dealing separately with the distinct question whether the Fifth Amendment would be affronted by a statute which did no more than forbid a death sentence on a plea of guilty.
Continuing to speak of the issue in terms which did not separate the Fifth Amendment from the Sixth, the majority opinion says (390 U.S. at 582, 88 S. Ct. at 1216, 20 L. Ed. 2 d, at p. 147):
"The Government suggests that, because the Act thus operates 'to mitigate the severity of punishment,' it is irrelevant that it 'may have the incidental effect of inducing defendants not to contest in full measure.' We cannot agree. Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508; Shelton v. Tucker, 364 U.S. 479, 488-489, 81 S. Ct. 247, 5 L. Ed. 2d 231, 237-238. The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case -- regardless of how the defendant's guilt has been determined. Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right." (Emphasis added.)
We have stressed the conjunction of "plead not guilty" with "and demand jury trial." We have emphasized the words "needlessly" and "unnecessary and therefore excessive" for those words immediately suggest a difference between the two constitutional issues if treated separately. As to the Sixth Amendment right of jury trial, the burden of the federal statute could only be "needless," for it can serve no legitimate end to make the penalty turn on whether the accused defended before a jury or before a judge alone. But when the focus is upon the Fifth Amendment, i.e., the impact upon the right to defend, other values come into play and may demonstrate that the incidental impact upon that right is not "needless" or "unnecessary" or "excessive."
In this regard, we refer to the following passage, in the final portion of which the majority opinion almost zeroed in upon the Fifth Amendment problem alone (390 U.S., at p. 584, 88 Ct., at p. 1217, 20 L. Ed. 2 d, at p. 158):
"The Government alternatively proposes that this Court, in the exercise of its supervisory powers, should simply instruct federal judges sitting in kidnaping cases to reject all attempts to waive jury trial and all efforts to plead guilty, however voluntary and well-informed such attempted waivers and pleas might be. In that way, we could assure that every defendant charged in a federal court with aggravated kidnaping would face a possible death penalty, and that no defendant tried under the federal statute would be induced to forego a constitutional right. But of course the inevitable consequence of this 'solution' would be to force all defendants to submit to trial, however clear their guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings. * * * But the fact that jury waivers and guilty pleas may occasionally be rejected hardly implies that all defendants may be required to submit to a full-dress jury trial as a matter of course. Quite apart from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt, it is clear -- as even the Government recognizes -- that the automatic rejection of all guilty pleas 'would rob the criminal process of much of its flexibility.' * * * If any such approach should be inaugurated in the administration of a federal criminal statute, we conclude that the impetus must come from Congress, not from this Court."
The Court there indicates that, as to the Fifth Amendment problem, there are countervailing considerations. The Court deems it "cruel" to require all defendants to submit to a full-dress jury trial, and says that to bar guilty pleas would rob the criminal process of needed flexibility. With these thoughts we agree, but if all defendants must risk the death sentence, how can those consequences be avoided? If a defendant who pleads guilty must be subjected to a trial as to punishment, it seems impossible to avoid a "full-dress" presentation of the facts of the crime, for it is hard to see how the death sentence could be considered without the full story of the criminal event. And if a defendant must risk a death sentence if he acknowledges his guilt, there will be an inducement not to offer a plea which otherwise would be forthcoming.
Of course no man should receive an extra penalty because he defends against a charge, United States v. Wiley, 278 F.2d 500, 504 (7 Cir. 1960), but it does not follow that a man who acknowledges his guilt should not be given consideration on that account. The issue is not limited to the capital case. However controversial, so-called "plea bargaining" has respectable support. State v. Taylor, 49 N.J. 440, 455 (1967); Barber v. Gladden, 220 F. Supp. 308, 314 (D. Ore. 1963), affirmed, 327 F.2d 101 (9 Cir. 1963), certiorari denied, 377 U.S. 971, 84 S. Ct. 1654, 12 L. Ed. 2 d 741 (1964); Dee Rose v. Gladden, Ore., 433 P. 2 d 612, 613 (Sup. Ct. 1967); Commonwealth v. Maroney, 423 Pa. 337, 223 A. 2 d 699, 703-706 (Sup. Ct. 1966); Task Force Report: The Courts (The President's Commission on Law Enforcement and Administration of Justice, 1967) pp. 9-11; Standards Relating to Pleas of Guilty, §§ 3.1-3.4 (A.B.A. Project on Minimum Standards for Criminal Justice, Tent. Draft, Feb. 1967); Newman, Conviction: The Determination of Guilt or Innocence without Trial (1966) p. 28; 8 Moore, Federal Practice (2 d ed. 1968) § 11.05; Note, 112 U. Pa. L. Rev. 865 (1964). And wholly apart from such express agreements for leniency,
it is commonplace for sentencing judges to give weight to a guilty plea, and correctly so, since a man who confesses is probably a better prospect for rehabilitation. State v. Ivan, 33 N.J. 197, 203 (1960). The concept is just and humane. We should not deny a justified leniency for the many, merely to be positive that no man is needlessly encouraged not to defend.*fn4 But if the Fifth Amendment bars a lesser penalty when guilt is admitted, then all of this must be wrong.
Surely there can be no distinction in this regard between a judge-made policy and a legislated prescription. If a policy offends the Fifth Amendment, it cannot matter which branch of government evolved it. Nor can a line be drawn between the capital and the non-capital case. The prospect of death is far more compelling, but a term of years is not so trivial a matter as to be beyond that constitutional protection if in principle it applies.
If Jackson holds that the Fifth Amendment forbids a limitation to life imprisonment on a plea of guilty, it follows that wherever capital punishment obtains, all defendants will have to stand trial as to punishment. And that is precisely what will follow in our State, and even more, for if Jackson applies to our statute, it will invalidate, as we will presently point out, the statutory amendment of 1893 (c. 36) which introduced the non vult plea, with the
result that everyone indicted for murder will have to stand trial as to both guilt and punishment.
To require every defendant to risk the death sentence would be a serious slide backwards. The 1893 act was intended to ameliorate the course of capital punishment. Prior thereto, the penalty for murder in the first degree was mandatorily death, and if a defendant was convicted on confession in open court, the court had to "proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly." N.J. Revision 1709-1877, Crimes, § 68, p. 239. Thus, on a plea of guilty, the penalty was death if the murder was later determined to be in the first degree.
The 1893 statute made two changes, to improve the plight of defendants charged with murder. It abolished the plea of guilty, thus eliminating "a ready and facile road to the gallows," State v. Genz, 57 N.J.L. 459, 462 (Sup. Ct. 1895). As Genz pointed out, judges from the earliest times, abhorring to enter a death judgment on a defendant's admission, generally advised prisoners to retract the plea and to plead to the indictment. Thus in practical effect the 1893 statute served "to substitute for the advice of the judge the mandate of the law, that the citizen shall not be adjudged to death upon his own confession, but that, in favorem vitae, the state shall prove, in all respects, to the satisfaction of a jury, the crime laid in the indictment" (p. 463). Prompted by Hallinger v. Davis, 146 U.S. 314, 13 S. Ct. 105, 36 L. Ed. 986 (1892), in which the imposition of a death sentence on a guilty plea was upheld, the Legislature decided to end that practice. Trenton Daily State Gazette, Feb. 14, 1893, p. 5. Having thus abolished the plea of guilty, the 1893 act authorized a plea of non vult or nolo contendere, but being opposed to the imposition of a death sentence upon a defendant's plea, the Legislature provided "The sentence to be imposed, if such plea be accepted, shall be the same as that imposed upon a conviction of murder in the second degree." [52 NJ Page 278] Thus the non vult plea was intended to benefit murder defendants, permitting the court, if the facts so warranted, to accept a plea which would bar the death penalty. When later the jury was authorized to recommend life imprisonment by L. 1916, c. 270,*fn5 the Legislature increased the authorized maximum on a non vult plea to life imprisonment. L. 1917, c. 238. Although the maximum on the plea was increased, the purpose again was to improve the lot of homicide defendants, by encouraging courts to accept a non vult plea in circumstances in which a maximum of a term of years might be deemed inadequate and therefore to require a trial with the possibility of a death sentence.*fn6 We add that recently, in harmony with that legislative policy, we determined that where a defendant stands trial, the prosecutor has the discretion not to seek the death penalty, and if he so decides and the court approves, the death penalty goes out of the case. In re Waiver of Death Penalty, 45 N.J. 501 (1965); R.R. 3:1-3 A. The result is
that as to every murder indictment some official agency considers the fitness of the death penalty, the judge doing so on a plea of non vult, and either the prosecutor with the court's approval or the trial jury doing so when the defendant stands trial.
The foregoing account shows the 1893 statute was adopted, not to coerce a defendant to offer a plea of non vult, but on the contrary to the humane end that a guilty defendant need not run the gauntlet of a trial on capital punishment if a judge shall find it is just that he should not. This decent objective will be defeated if Jackson applies, not only in our State*fn7 but inevitably as well in every jurisdiction in which the death penalty is authorized.
To recapitulate, then, our statute differs from the federal kidnapping statute involved in Jackson in these respects:
(1) The federal statute plainly violated the Sixth Amendment right to trial by jury, by differentiating between a trial with a jury and a trial without a jury. Our statute, on the other hand, does not bear upon the Sixth Amendment right; in fact a trial may be had only before a jury.
(2) With respect to the Fifth Amendment question, the federal defendant has a "right," in a realistic sense, to plead guilty.*fn8 Under our statute a defendant may not plead guilty; and he may plead non vult only with the approval ...