For affirmance -- Chief Justice Hughes, Justices Mountain, Clifford and Schreiber and Judge Conford. For remandment -- Justices Sullivan and Pashman. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned. Sullivan, J. (dissenting). Pashman, J., dissenting.
[74 NJ Page 381] At issue in this case is the constitutionality of the sentencing scheme of the New Jersey murder statute, N.J.S.A. 2A:113-3 and N.J.S.A. 2A:113-4, as judicially altered in State v. Funicello, 60 N.J. 60 (1972) (" Funicello III"), cert. den. sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). Defendant asks the Court to find: (1) that under United States v. Jackson,
390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), the sentencing scheme of the act impermissibly infringes upon an accused's Fifth Amendment right not to plead guilty and his Sixth Amendment right to a jury trial; and (2) that, apart from the Jackson rule, the scheme deprives an accused of the equal protection of the laws.
In view of the limitation of the issues herein by our order of certification, the factual background may be capsulated. On May 11 and 13, 1972 fires occurred at a Newark multi-family dwelling. A visitor at the premises died from smoke inhalation because of the second fire. Defendant confessed to setting both fires to obtain revenge against his landlord. On April 10, 1973 a jury acquitted defendant of arson in relation to the May 11 fire but it found him guilty of arson in connection with the May 13 fire and of murder of the visitor. The murder charge had been tried on a felony murder theory. Defendant was sentenced to life imprisonment for the murder and given a concurrent five to seven year prison sentence for the arson.
On appeal the Appellate Division, in an unreported opinion, affirmed the murder conviction but vacated that for arson on grounds of merger. We granted certification but expressly "limited to the question of the validity of the mandatory life sentence upon a jury conviction for murder." 69 N.J. 447 (1976).
Alleged Infringement upon Fifth Amendment and Sixth Amendment Rights.
The basic issue before us is whether the decision in United States v. Jackson, supra, which held unconstitutional the death penalty provision of the Federal Kidnapping Act under the sentencing scheme of the act, condemns as invalid our murder sentencing scheme as revised by this Court after the statute, with a provision for a death penalty, was held unconstitutional by the United States Supreme Court in Funicello
v. New Jersey, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971) (" Funicello II") Comprehension of the opposing views in the case requires our outlining the history of the litigation over the validity of the murder statute before and after its judicial recasting in Funicello III.
Prior to Funicello III our statutes*fn1 concerning pleading and sentencing for murder read as follows:
In no case shall the plea of guilty be received upon any indictment for murder, and if, upon arraignment, such plea is offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the case.
Nothing herein contained shall prevent the accused from pleading non vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree.
Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed.
Every person convicted of murder in the second degree shall suffer imprisonment for not more than 30 years.
Judgments of death were pronounced under those statutes upon Leo R. Forcella and Victor R. Funicello and affirmed on direct appeal in State v. Forcella, 35 N.J. 168 (1961), cert. den. 369 U.S. 866, 82 S. Ct. 1035, 8 L. Ed. 2d 86 (1962) and State v. Funicello, 49 N.J. 553 (1967) (" Funicello I"), cert. den. 390 U.S. 911, 88 S. Ct. 837, 19 L. Ed. 2d 882 (1968). Post-conviction proceedings were brought by both,
and before their final disposition the United States Supreme Court decided United States v. Jackson, supra 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138.
Jackson involved a death sentence under the Federal Kidnapping Act. That statute provided that kidnapping and interstate transportation of the victim should under specified circumstances be punished by death if the verdict of the jury should so recommend or by imprisonment for any term of years or for life if the death penalty was not imposed. As the statute was construed, the death penalty could not be imposed upon a defendant who waived jury trial or pleaded guilty. The Supreme Court held the death penalty provision invalid, but severable from the remainder of the act. It reasoned that since a defendant could assuredly avoid the death penalty only by pleading guilty or proceeding to trial before a judge, he was "needlessly encourage[d]" to waive his constitutional rights not to incriminate himself, as by a plea of guilt (Fifth Amendment) and to have a jury trial should he plead not guilty (Sixth Amendment). 390 U.S. at 583, 88 S. Ct. 1209. While recognizing the Legislature's legitimate interest in permitting a jury to mitigate the rigors of capital punishment, the Court felt that goal could not be pursued by "penalizing those defendants who plead not guilty and demand jury trial". Id. at 582, 88 S. Ct. at 1217. It cited state statutes which make the jury the arbiter of capital punishment no matter how the defendant's guilt is determined. Ibid.
Forcella, Funicello and others similarly situated brought the Jackson holding to the attention of the New Jersey courts in their post-conviction proceedings, arguing that it was direct authority for the invalidity of the death penalty provision in our murder statute in that only upon a trial did a defendant risk a verdict of death, not by offer and acceptance of a plea of non vult. Thus there existed the same needless "chilling", as in Jackson, of the right to contest guilt and to have a jury at the trial of the issue. In an opinion by Chief Justice Weintraub for a majority of the Court, the argument
was rejected, Jackson being distinguished. State v. Forcella, 52 N.J. 263 (1968). It was pointed out that our statutory scheme differed from that in Jackson because a defendant could not be tried by a judge but only before a jury, and therefore the Sixth Amendment claim was without merit. Id. at 270-272. The purpose of the provision was "humane" and not a "needless" discouragement of the right to contest guilt, as in Jackson, and thus the Fifth Amendment was not offended. Id. at 280.
Justices Jacobs and Hall dissented. They concluded that Jackson compelled the elimination of the death penalty from the New Jersey sentencing scheme but that the statute could be rehabilitated by substituting life imprisonment therefor, without the necessity of scrapping the defendant's option to offer to plead non vult and be allowed the potential of a lesser penalty. 52 N.J. at 294-302.
On petition for certiorari the United States Supreme Court summarily, and without argument, reversed the Forcella holding three years later in a brief memorandum whose substantive content was confined to the statement:
Judgment, insofar as it imposes the death sentence, reversed and case remanded to the Supreme Court of New Jersey for further proceedings. Funicello v. New Jersey, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971) (" Funicello II").
The only explanation given for the ruling was the citation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and similar cases*fn2 and of the Jackson case.
Upon remand to this Court, in Funicello III, supra (60 N.J. 60), the Court "accept[ed] the conclusion that the
United States Supreme Court has declared the death penalty to be unconstitutional under our statute". Id. at 67. Considering the provision for the death penalty severable from the statute, the Court ordered all death sentences vacated, and it directed that all pending or future indictments for murder be prosecuted on the basis that upon the jury's verdict of murder in the first degree the penalty should be life imprisonment. Pleas to an indictment for murder were to continue to be governed by N.J.S.A. 2A:113-3. Id. at 67-68. In effect, the Court adopted the position of the dissenting Justices in State v. Forcella, supra.
The United States Supreme Court denied certiorari to review that determination. New Jersey v. Presha, supra 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766.
Viewed in relation to the rationale of Jackson, the following possibly pertinent differences are apparent between the sentencing scheme under the federal kidnapping statute dealt with in Jackson and that of our present statute,*fn3 as recast by our courts: (1) there was a possibility of a death penalty after conviction under the federal act; only life imprisonment under ours; (2) the maximum punishment after conviction under the federal act was greater than that upon a plea of guilt; the maximums are the same under our act; and (3) trials by either judge or jury were available under the federal act, with the possibility of the maximum penalty (death) only when the trial was with a jury; under our statute a trial can be only by jury.
The State contends that differences (1) and (2) are each sufficient to distinguish our statute from the federal one and to justify a conclusion that ours imposes no "needless" burden on the defendant's Fifth Amendment rights, such as prohibited by Jackson. It also argues that difference (3) precludes the conclusion of infringement upon Sixth Amendment
rights. The defendant argues that the substantial difference in potential minimum sentences between that upon conviction after trial and that upon a plea of non vult under our statute is such as to render operative the rationale of Jackson insofar as infringement upon Fifth Amendment rights is concerned; and, moreover, that any impermissible burden on the option of the defendant to go to trial at all necessarily also burdens the Sixth Amendment right to have a jury trial.
As we view the basic underlying question posed by defendant's contention, it is whether the doctrine of Jackson constitutionally precludes a statutory sentencing scheme for murder wherein provision for a fixed sentence (less than death) on a conviction may co-exist with one for the taking of a plea of non vult (or guilt) with the possibility of the sentencing court imposing a substantially lesser sentence. The defendant responds to that question in the affirmative. He regards any substantial statutory inducement to plead rather than go to trial as ipso facto invalid. Our study of the cases, particularly decisions of the United States Supreme Court subsequent to Jackson, satisfies us that the correct conclusion is to the contrary and that our present statute is unexceptionable on either Fifth or Sixth Amendment grounds.
The Sixth Amendment problem need not long detain us. In Jackson, the right to a jury trial was implicated because trial before a judge rather than a jury assured immunity from a death sentence. If the contrast between one method of trial involving the possibility of death (jury trial) and another free from it imposes an intolerable and needless pressure on the defendant to choose the latter, as held by Jackson, the right of trial by jury was of course compromised.*fn4 But if, as
under our statute, the defendant is triable only by jury, if at all, no invasion of the right of jury trial, as such, is apparent. State v. Forcella, supra, 52 N.J. at 269-270. If, however, because of the New Jersey statutory option of a defendant to tender a plea of non vult, which, if accepted, has the potential of a sentence substantially less than on conviction, of first degree murder, defendant has suffered intolerable and needless discouragement of his right to go to trial at all, then defendant has necessarily suffered infringement of both his Fifth and Sixth Amendment rights. But if, on the other hand, it is concluded that whatever discouragement is involved in the scheme is not an impermissible infringement on Fifth Amendment rights, so that the provision for a plea of non vult is valid, the Sixth Amendment question becomes moot. The latter issue is thus determinative of the entirety of the Jackson phase of the case.
We consider, first, the merits of the State's position that the Jackson problem is satisfactorily resolved by the circumstance that under the statute the defendant is subject to the same maximum sentence whether he is convicted or pleads non vult -- i.e., life imprisonment. It is pointed out that under the federal kidnapping act, by contrast, the potential maximum on a plea of guilty was less than on a conviction at a jury trial. The argument is that Jackson emphasized the certainty of avoidance by a plea of the potential maximum after a trial. The Appellate Division has upheld the State's thesis. State v. Hubbard, 123 N.J. Super. 345, 351-352 (1973), certif. den. 63 N.J. 325 (1973); State v. Land, 124 N.J. Super. 303, 306 (1973). It has also so been held uniformly elsewhere. Commonwealth v. Hargrove, 434 Pa. 393, 254 A.2d 22 (Sup. Ct. 1969); Sims v. Eyman, 405 F.2d 439
(9 Cir. 1969); State ex rel. Strickland v. Melton. 152 W. Va. 500, 165 S.E. 2d 90 (Sup. Ct. App. 1968); State v. Harper, 251 S.C. 379, 162 S.E. 2d 712 (Sup. Ct. 1968); cf. State v. Beal, 470 S.W. 2d 509 (Sup. Ct. Mo. 1971); Lyons v. Howard, 434 F.2d 632 (6 Cir. 1970); People v. Coogler, 71 Cal. 2d 153, 77 Cal. Rptr. 790, 454 P. 2d 686 (Sup. Ct. 1969), cert. den. 406 U.S. 971, 92 S. Ct. 2417, 32 L. Ed. 2d 672 (1972).
We are not, however, persuaded that the point thus made is necessarily dispositive of the Jackson thrust. If the invariable or almost invariable practice were to accord the pleading defendant a substantially lesser sentence than that mandated on a conviction, the argument of pressure to avoid a trial by pleading guilty (aside from the other distinguishing considerations later to be discussed herein) would have logical merit even though the statute facially allowed imposition, on the taking of a plea, of the same penalty required in case of conviction after trial. See Commonwealth v. Hargrove, supra, 254 A.2d at 24; cf. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971). We need not pursue the point, however, as we are convinced, for reasons to be fully stated, that the Jackson case is not today authority for unconstitutionality where the maximum sentence imposable on conviction after trial is less than death; or, that if the principle is not automatically inapplicable in such a case, the New Jersey sentencing scheme is nevertheless valid notwithstanding the incidence of some encouragement or pressure on a defendant to plead guilty. We proceed with our reasons for those conclusions.
On its face, the opinion of the Court in Jackson left an ambiguity as to whether the gravamen of the holding was the overwhelmingly intimidating effect of a possible death penalty on the defendant's decision to contest his guilt or, rather, the unacceptability of any scheme which made the tender of a plea of guilt a more attractive prospect in terms of potential punishment
than taking the chance of an adverse verdict at a trial. A number of allusions in the opinion to the gravity of the defendant's dilemma support the first view: "* * * the defendant's assertion of the right to jury trial may cost him his life * * *", 390 U.S. at 572, 88 S. Ct. at 1211; "Under the Federal Kidnapping Act * * * the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. One problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert their right to contest their guilt before a jury." Id. at 581, 88 S. Ct. at 1216 (emphasis added).
On the other hand, seeming to support the necessity of exact equivalence of potential punishment under either a plea or a contest, was the Court's insistence that the evil it perceived was not that the federal statute necessarily "coerced" guilty pleas but that it "needlessly encourage [ d ]" them. 390 U.S. at 583, 88 S. Ct. 1209 (emphasis in the original). Thus, in responding to the Government's contention that the jury option for life imprisonment rather than death was a laudable statutory effort "to mitigate the severity of punishment", the Court said that objective could not be pursued by "penalizing those defendants who plead not guilty and demand jury trial". Id. at 582, 88 S. Ct. at 1217. It pointed out that the permissible objective had been constitutionally achieved in Washington and California by statutes which left the choice between life imprisonment and capital punishment to a jury in every case, regardless of how defendant's guilt had been determined. Ibid.
The issue for present purposes then boils down to the question whether there is a "needless" encouragement of guilty pleas in a statutory disparity between either maximum or minimum punishment on conviction and on a guilty plea when the death penalty is not involved. Dissenting
in State v. Forcella, supra, Justices Jacobs and Hall clearly foresaw the issue we now face and answered the posed question in the negative. They concluded that the only repair of our statute required by Jackson was the substitution of life imprisonment for the death penalty. They disagreed with the majority, whose view it was, as expressed by Chief Justice Weintraub, that if our statute was vulnerable under Jackson, the indicated cure was to abolish the plea of non vult rather than the death penalty. 52 N.J. at 282, 283. Responding to the suggestion in the opinion of the majority that even if the death penalty were eliminated from the statute, it would still "involve a Jackson -type difficulty in that one who stood trial would receive a life sentence for first-degree murder while a defendant whose non vult plea was accepted could receive a sentence for a term of years" (52 N.J. at 282), the dissenters said (Id. at 300-301):
The majority suggests that striking of the death penalty might still leave a " Jackson -type difficulty" in that a defendant who pleads non vult would receive life or a term of years whereas a defendant found guilty by a jury of first degree murder would necessarily receive life. But the jury might return a lesser verdict and, in any event, the inducement here would be insignificant when compared to the death penalty stricken in Jackson. The law has always been administered with pragmatic recognition of the fact that the difference between the death penalty and imprisonment entails more than matters of logic and degree. See State v. Laws, supra, 51 N.J. 494; cf. Meszaros v. Gransamer, 23 N.J. 179, 188 (1957); State v. Wolf, 46 N.J. 301, 308 (1966). Jackson was concerned solely with the grisly choice between a plea or waiver with an assurance of no death penalty, and a jury trial with the danger of a death penalty; it was not at all concerned with and did not mention the ...