Joining in Per Curiam Opinion: Chief Justice Weintraub and Justices Proctor, Schettino and Mountain. Concurring in result: Justices Jacobs and Hall. Dissenting: Justice Francis. Weintraub, C.J. (concurring). Mr. Justice Proctor and Mr. Justice Schettino join in this concurring opinion. Subject to his dissenting opinion, Mr. Justice Francis also joins herein. Jacobs and Hall, JJ., concur in result for reasons fully set forth by them in their dissent to State v. Forcella et als.,
On April 8, 1968 the United States Supreme Court held the federal kidnapping statute unconstitutional insofar as it authorized the death penalty. United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2 d 138 (1968). The statute was construed to mean that the death penalty could be imposed only by a jury verdict, so that if a defendant waived his Sixth Amendment right to trial by jury, he would suffer no penalty beyond life imprisonment. Thus construed, the statute was held to violate the right to trial by jury. The Court also found the statute "needlessly encouraged" a plea of guilty, in violation of the Fifth Amendment privilege against self-incrimination. On June 17, 1968 the United States Supreme Court, upon the Government's concession that the federal bank robbery act was indistinguishable from the kidnapping statute, voided a death sentence imposed under the robbery act. Pope v. United States, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968).
When Jackson was handed down, we immediately invited the question of its impact upon our homicide statute under which the penalty for first-degree murder is death unless the jury recommends life imprisonment, N.J.S.A. 2A:113-4, and under which, if a non vult plea to the indictment is accepted by the court, the penalty is life imprisonment or the same as that provided in the case of murder in the second degree, N.J.S.A. 2A:113-3. Our statute did not involve a Sixth Amendment issue (a defendant could
not waive a jury and be tried before a judge alone), but the non vult plea raised the question whether Jackson's Fifth Amendment thesis embraced our statute.
The issue was presented in post-conviction proceedings as to Forcella and Funicello, both under death sentences theretofore affirmed by us. We held (1) Jackson did not apply, for the reasons we stated at length, and that if we should be in error in that regard, then (2) the non vult plea rather than the death penalty would fall, and this because of the history of our statutes. State v. Forcella, 52 N.J. 263 (1968). Two justices dissented.
We decided Forcella on July 3, 1968, a few months after Jackson. Both Forcella and Funicello petitioned the United States Supreme Court for certiorari. Forcella died later of natural causes. As to Funicello, the United States Supreme Court, on June 28, 1971, three years after the filing of our opinion, made this memorandum disposition (403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2 d 859):
On petition for writ of certiorari to the Supreme Court of New Jersey. Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted. Judgment, insofar as it imposes the death sentence, reversed and case remanded to the Supreme Court of New Jersey for further proceedings. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970); and United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). Mr. Justice Black dissents.
On July 23, 1971 the Attorney General filed with the United States Supreme Court a petition for rehearing and a motion for clarification, both of which were denied without comment. 404 U.S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971). We thereupon set down Funicello for further argument, and other cases involving the same issue were heard with it.
The Attorney General and the prosecutors took the position that by the Funicello memorandum the United States Supreme Court held (1) our statute ran afoul of Jackson, and (2) it was the death penalty which fell. The memorandum
decision cited Jackson. There was some ambiguity by reason of the citation of Witherspoon, Boulden and Maxwell, since they deal with the qualification of jurors in a capital case, an issue which in fact was not involved in Funicello, 52 N.J. at 292, and which would in any event fall away if there were no death penalty. The summary nature of the disposition after a three-year interval was also perplexing. Nonetheless Jackson was cited, and any doubt as to the intention of the United States Supreme Court seems dissipated by the fact that the Court on the same day reversed death sentences in a number of North Carolina cases and in a South Carolina case, citing only Jackson and Pope. Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2 d 859 (1971); Hill v. North Carolina, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2 d 860 (1971); Roseboro v. North Carolina, 402 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2 d 860 (1971); Williams v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2 d 860 (1971); Sanders v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2 d 860 (1971); Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2 d 861 (1971); Thomas v. Leeke, 403 U.S. 948, 91 S. Ct. 2291, 29 L. Ed. 2 d 860 (1971).
We therefore accept the conclusion that the United States Supreme Court has declared the death penalty to be unconstitutional under our statute. The constitutional infirmity being excised from the statute by invalidating the death penalty, the question is whether the remainder of the statutory scheme will survive. We see no reason to doubt that the Legislature would want the remainder of the statute to stand if the death penalty failed, and we see no constitutional difficulty in taking that course. The consequences are the following.
The death penalty in Funicello is set aside pursuant to the mandate of the United States Supreme Court and the defendant is hereby sentenced to life imprisonment, nunc pro tunc, as of the date the death sentence was initially imposed, the defendant to be entitled to the same credits as if
initially sentenced to life imprisonment.*fn1 A like order will be entered in all the other causes captioned above in which the death sentence was imposed. A like order will be made on motion before us or in the trial court with respect to all other defendants now under a sentence of death. No such order shall delay or affect any appeal with respect to guilt.
A life sentence heretofore imposed upon a jury's recommendation or upon the State's waiver of the death penalty is unaffected. See Robinson v. United States, 394 F.2d 823 (6 Cir. 1968), cert. denied, 393 U.S. 1057, 89 S. Ct. 698, 21 L. Ed. 2 d 698 (1969); Parker v. United States, 400 F.2d 248 (9 Cir. 1968), cert. denied, 393 U.S. 1097, 89 S. Ct. 892, 21 L. Ed. 2 d 789 (1969).
Neither a non vult plea nor a judgment heretofore entered upon it will be impaired by our action today. As to any claim of involuntariness in the plea, the governing principles are set forth in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2 d 747 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2 d 785 (1970); North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2 d 162 (1970).
All pending and future indictments for murder shall be prosecuted on the basis that upon a jury's verdict of murder in the first degree, the penalty shall be life imprisonment. Pleas to an indictment for murder shall continue to be governed by N.J.S.A. 2A:113-3.
The matters captioned above involving interlocutory orders relating to the death penalty are remanded to the trial courts for further proceedings in accordance with this opinion.
WEINTRAUB, C.J. (concurring). Judicial management is high among present priorities. The courts being unable to meet the demands upon them, it is understandable that among the solvents would be a proposal that the judiciary borrow rudimentary principles from the business world. The first rule of good management must be that management shall manage. A work force cannot be effective if it cannot know how it is to function. I can think of no area in which guidance is more vital than the area of criminal law, for it is an area of intense activity, touching every citizen. The case before us dramatizes the failure to provide direction and suggests the Federal and State judiciaries cannot meet their responsibilities unless some rules are changed.
Let us look for a moment at our basic constitutional scheme from which the management problem has emerged. Thirteen uneasy States agreed upon a federal plan under which the big States could not swallow the little ones. The federal government received an assigned role, all else being reserved to the States. The responsibilities of the judicial systems reflect that division. As to federal issues the Federal Supreme Court is supreme and the State Supreme Court is subordinate, while as to all other matters the State Supreme Court is supreme and the Federal Supreme Court is subordinate. The Federal Supreme Court and the State Supreme Court may thus be thought to be equally unequal, but there is a rub, for the Federal Supreme Court has the last word with respect to what the federal jurisdiction includes. Thus the two judiciaries are unequally unequal. And the line between the jurisdictions of the judiciaries being quite imprecise, the power to say where the line lies is the more meaningful on that account.
The area of final responsibility reserved to the State Supreme Court vastly exceeds the area delegated to the Federal Supreme Court. One need but compare the calendars in the trial courts and the numbers of trial judges to appreciate the respective demands upon the two systems. Among the first demands upon the State is the protection of the citizen from criminal attack in his home, in his work, and in the streets. The citizen looks to the State judiciary for fair and effective prosecution of violators of the criminal law. Yet, although the State Supreme Court is thus charged with the responsibility for that result, its power to lay down the rules has been shifted to the Federal Supreme Court by a run of its decisions over the past 12 years or so. Those decisions were not at all compelled by "my copy" of the Constitution or its history. Surely the Federal Supreme Court would not have been derelict if it had left the final power where it had reposed for almost 200 years.
This shift of power is inherently abrasive. To an ardent advocate of "State's rights," the shift of power is of course irritating. To one who is not at all excited in those terms, the shift of power may be no less disturbing, for he wants the power to reside where it can better serve the citizens and he questions the ability of the Federal Supreme Court to manage the additional area it has allocated to itself. If Mr. Justice Holmes was correct when he said the life of the law is experience and not logic, it is understandable that State judges do not believe their federal counterparts are better informed to make value judgments in this area of intense State experience. Indeed, a lack of realism is the persistent criticism of the federal decisions to which I have referred. But apart from all of this, the shift of power has separated the responsibility for the result from the power to lay down the rules. It is this separation which has led to unfortunate friction between the judiciaries. Many citizens, unaware of the significance of this shift of power, continue to charge the State judiciary with the shortcomings in this critical area, while the State judiciary chafes because it is
unable to do what it believes ought to be done, and to boot, it cannot find out in some expeditious way precisely what the Federal Supreme Court wants it to do.
The problem is aggravated by the fact that the Federal Supreme Court does not have the options available to the State Supreme Court. Whereas the State Supreme Court can make new law at a nonconstitutional level, thus leaving the Legislature free to disagree and the Court itself free to change its mind more comfortably if experience should reveal it erred, the Federal Supreme Court cannot itself lay down a rule without attributing it to some constitutional command. It might have been more serviceable merely to have found a federal interest in a subject justifying congressional action rather than to attribute some final solution to the Constitution itself. But that is not the course the Federal Supreme Court pursued. Rather the Court fashioned its own rules and said the Constitution made it do so.
In that process the Federal Supreme Court had to read the Constitution to embrace subjects never thought to be within the Constitution's reach. Indeed the outside limits of the process are not yet visible. After all, good law is a matter of "fairness," and one need but insist that a given rule is "fundamentally" unfair to call upon the Constitution to establish his view. The tendency is thus to claim "constitutional" moment in matters which, in my appraisal, are quite minimal in a scheme of values. The more the Constitution is found to be intolerant of disagreement upon arguable issues, the deadlier becomes the grip upon the genius of men. The price of such intolerance may be sterility. It is true that on occasions, the Federal Supreme Court suggests a new constitutional rule will not deny the States an opportunity to devise another approach. See Ker v. California, 374 U.S. 23, 33-34, 83 S. Ct. 1623, 1629-1630, 10 L. Ed. 2 d 726, 738 (1963), as to arrests, searches and seizures; Miranda v. Arizona, 384 U.S. 436, 444, 467, 86 S. Ct. 1602, 1612, 1624, 16 L. Ed. 2 d 694, 706, 719-720 (1966), as to confessions; and United States v. Wade, 388 U.S. 218, 239,
87 S. Ct. 1926, 1938, 18 L. Ed. 2 d 1149, 1164 (1967), as to line-ups. But no one seems to have found elbow room.
And when it is discovered that the Constitution itself commands a rule, the problem of retroactive application arises, for it sounds horrendous to refuse thus to apply a rule which, by hypothesis, however fictional, the Constitution itself has always demanded. There is no such compulsion when a State Supreme Court makes law at a nonconstitutional level.
The impact of the expansion of the reach of the Constitution in this area is heightened by some further doctrines the Federal Supreme Court has developed. One is that a "constitutional" right is not lost unless it is "waived." Although the Constitution of course secures constitutional rights against legislative impairment, the Constitution nowhere suggests that such rights, unlike rights resting in the common law or in statute, are thrust upon the individual and can be lost only if he elects by some positive decision to forego them. But the Federal Supreme Court has introduced a doctrine of waiver, calling for a relinquishment which must not only be voluntary but also "intelligent," a concept of uncertain meaning in this area. See State v. McKnight, 52 N.J. 35 (1968). Another doctrine entitles a State defendant to seek post-conviction relief without limit until he has exhausted every conceivable "constitutional" claim by proceedings first in the State courts if they will take the issue and then in the federal courts, no matter how belatedly the claim is raised, so long as he did not voluntarily and intelligently "waive" it. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2 d 837 (1963). A case can become a shuttlecock passing between the Federal and State judiciaries for years.
Nor does the foregoing tell the whole story. Commonly a constitutional question involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience
of the one who judges. Federal trial judges are thus asked to "review" the judgments of the State Court by no more than a substitution of their factual evaluations for those of the State Court. Hence it may come to pass that a dozen or more years after a conviction is upheld by the State Supreme Court, a man may come to a federal bench who will pit his experienced or sometimes inexperienced assessment against the seasoned evaluations of a host of State judges, and will thereby undo the State court judgment without so much as an intimation of a shadow of a shadow of a doubt as to the truth of the conviction. The public is understandably confused and may wonder how the State judiciary could be so grievously unjust, although all that is involved is the disagreement of one man, who, if he sat in the State judiciary would have been reversed unanimously or if he sat in the State Supreme Court would have been a lone dissenter. To say he would thus have fared as a member of the State judiciary does not prove he was wrong, but it does put the matter in perspective. I of course intend no broadside against the judges who sit in the United States District Court. I know them very well. They are good men, doing what they conceive the Federal Supreme Court expects them to do. Indeed they may be as unhappy as I with the present scene. My point is that the doctrines of the Federal Supreme Court have led to an impossible situation. There is more than enough work for both judicial systems. Good management calls for husbanding of their energies and the elimination of conflicting judgments which really do little if anything to advance justice.
The case now before us serves to illustrate the difficulties a State judiciary experiences because of the shift to the Federal Supreme Court of the power to lay down the rules in an area of State responsibility.
United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2 d 138 (1968), involved the federal kidnapping statute. The majority of the Supreme Court construed the statute to mean the death penalty could be imposed only by
a jury so that a defendant who contested his guilt before a judge without a jury would experience no greater penalty than life imprisonment. The statute being so construed, it had to follow that the Sixth Amendment right to trial by jury was impaired since a price was obviously exacted for asserting that right. The majority opinion, however, found also an invasion of the Fifth Amendment, on the theme that there was coercion to plead guilty. I could not understand, and still do not, how the Fifth Amendment was involved, for a defendant did not have to plead guilty to avoid the threat of the death sentence. The coercion ran only to the choice of a trial with or without a jury; it had nothing to do with the question whether to defend or not to defend. Indeed the majority opinion itself acknowledged that its interpretation of the kidnapping statute "hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily." 390 U.S. at 583, 88 S. Ct. at 1217, 20 L. Ed. 2 d at 148. Rather, the opinion says, the statute "needlessly encourages " a guilty plea, although how that can be when a defendant can plead not guilty and be tried by a judge is not explained.*fn1 Ordinarily the Federal Supreme Court avoids an avoidable constitutional question. If Jackson had rested upon the Sixth Amendment alone, the decision would have been complete. That the Court reached for a Fifth Amendment issue was foreboding, but I could not be sure as to what.
It was evident that our homicide statute would be involved if Jackson meant to lay down a rule that a statute will violate the Fifth Amendment if the death penalty cannot be imposed upon a plea of guilty. Our statute would be involved because it provides that if a plea of non vult to the indictment is accepted, the penalty shall be life imprisonment or the punishment which may be imposed on a conviction
for murder in the second degree. N.J.S.A. 2A:113-3. Although I was not familiar with the statutory schemes in all the other States which had capital punishment, it was inconceivable that there was not some equivalent method in each whereby a defendant could avoid the death penalty, whether by a plea of guilty to murder in the first degree or by a plea to a lesser included charge. Whatever the technique, the issue would be the same, unless mere form or words could be triumphant. And it seemed to me that there was also implicated the widespread practice known by the unpleasant label "plea bargaining"; for whatever may be the offense charged in the indictment, the same ethics are involved in the acceptance of a plea of guilty to the charge or to some lesser one upon an agreement for more lenient treatment. To say the death penalty is singularly different and to insist that every defendant shall run the risk of death, is to me regressive, for it holds the inevitable promise of a higher incidence of executions. Yet, if the Federal Supreme Court found that intent in the Constitution of the United States, it would be my plain obligation to accept that view and enforce it.
Had the Supreme Court of New Jersey handed down an opinion like Jackson, one of the assignment judges responsible for judicial administration in the several vicinages of the State, would have immediately telephoned the Chief Justice, as administrative head of the judiciary, and asked quite bluntly for some guidance as to what was expected. Specifically, the question would be whether the State Supreme Court intended to declare the homicide statute unconstitutional, and if so, whether the death penalty or the non vult plea survived. That guidance would be imperative, for the trial bench must know what to do with murder indictments. But there is no established line of communication between the State Supreme Court and the Federal Supreme Court whereby such information, so obviously needed for intelligent management of judicial business, can be had. All that we could do was to invite the immediate presentation
of the question whether Jackson wiped out the death penalty in our State. We did so, with the hope that on an appeal from our decision the Federal Supreme Court would quickly provide essential administrative direction.
Jackson was decided on April 8, 1968. The issue was argued before us on June 3, 1968, and our opinion was filed on July 3, 1968. State v. Forcella, et al., 52 N.J. 263. We set forth at length why we thought Jackson did not apply to our homicide statute, and to avoid further delay in this urgent area, we dealt with the question whether, if Jackson did apply, it would be the death penalty or the non vult plea which would fall. That issue we conceived to be one of State law as to which our view would bind the Federal Supreme Court. Upon an examination of the history of our homicide statute we concluded that if Jackson applied, it was the non vult plea that would fall.
Forcella, and also Funicello, another defendant in those proceedings, promptly sought review by the Federal Supreme Court. Forcella died of natural causes and his proceeding was dismissed. On June 28, 1971, three years after our decision, the Supreme Court reversed the death penalty in the Funicello matter in a summary way to which I will refer later on. In the intervening three years we and no doubt most other jurisdictions handled murder cases on the assumption that our respective statutes were valid.
During that three-year period, we were led to believe that our statute was not controlled by Jackson, not only because the Federal Supreme Court did not act upon Funicello but also because of other opinions it handed down during that period. They were Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2 d 747 (May 4, 1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2 d 785 (May 4, 1970); and North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2 d 162 (Nov. 23, 1970). In each of those cases, the defendant sought unsuccessfully to attack his guilty plea, on the basis that the death penalty was unconstitutional under Jackson and hence that his plea
was induced by or coerced by his mistaken belief that the death penalty was a risk he faced. Brady involved the federal statute found invalid as to the death penalty in Jackson. Parker and Alford involved a State ...