Petitioner was indicted in 1959 for kidnaping and not liberating
the victim unharmed in violation of 18 U.S.C. § 1201(a), which
imposed a maximum penalty of death if the jury's verdict so
recommended. Upon learning that his codefendant, who had confessed,
would plead guilty and testify against him, petitioner changed his
plea from not guilty to guilty. The trial judge accepted the plea
after twice questioning petitioner (who was represented throughout
by competent counsel) as to the voluntariness of his plea, and
imposed sentence. In 1967, petitioner sought post-conviction
relief, in part on the ground that § 1201(a) operated to coerce his
plea. The District Court, after hearing, denied relief, concluding
that petitioner's plea was voluntary and had been induced not by
that statute, but by the development concerning his confederate.
The Court of Appeals affirmed. Petitioner claims that United
States v. Jackson, 390 U. S. 570
(1968), requires reversal of that holding.
On the record in this case, there is no basis for
disturbing the judgment of the courts below that petitioner's
guilty plea was voluntary. Pp. 397 U. S.
(a) Though United States v. Jackson, supra,
imposition of the death penalty under § 1201(a), it does not hold
that all guilty pleas encouraged by the fear of possible death are
involuntary, nor does it invalidate such pleas, whether involuntary
or not. Pp. 397 U. S.
(b) A plea of guilty is not invalid merely because entered to
avoid the possibility of the death penalty, and here, petitioner's
plea of guilty met the standard of voluntariness, as it was made
"by one fully aware of the direct consequences" of that plea. Pp.
397 U. S.
(c) Petitioner's plea, made after advice by competent counsel,
was intelligently made, and the fact that petitioner did not
anticipate United States v. Jackson, supra,
impugn the truth or reliability of that plea. Pp. 397 U. S.
404 F.2d 601, affirmed.
Page 397 U. S. 743
MR. JUSTICE WHITE delivered the opinion of the Court.
In 1959, petitioner was charged with kidnaping in violation of
18 U.S.C. § 1201(a). [Footnote
] Since the indictment charged that the victim of the
kidnaping was not liberated unharmed, petitioner faced a maximum
penalty of death if the verdict of the jury should so recommend.
Petitioner, represented by competent counsel throughout, first
elected to plead not guilty. Apparently because the trial judge was
unwilling to try the case without a jury, petitioner made no
serious attempt to reduce the possibility of a death penalty by
waiving a jury trial. Upon learning that his codefendant, who had
confessed to the authorities, would plead guilty and be available
to testify against him, petitioner changed his plea to guilty. His
plea was accepted after the trial judge twice questioned him as to
the voluntariness of his plea. [Footnote 2
Page 397 U. S. 744
Petitioner was sentenced to 50 years' imprisonment, later
reduced to 30.
In 1967, petitioner sought relief under 28 U.S.C. § 2255,
claiming that his plea of guilty was not voluntarily given because
§ 1201(a) operated to coerce his plea, because his counsel exerted
impermissible pressure upon him, and because his plea was induced
by representations with respect to reduction of sentence and
clemency. It was also alleged that the trial judge had not fully
complied with Rule 11 of the Federal Rules of Criminal Procedure.
Page 397 U. S. 745
After a hearing, the District Court for the District of New
Mexico denied relief. According to the District Court's findings,
petitioner's counsel did not put impermissible pressure on
petitioner to plead guilty, and no representations were made with
respect to a reduced sentence or clemency. The court held that §
1201(a) was constitutional, and found that petitioner decided to
plead guilty when he learned that his codefendant was going to
plead guilty: petitioner pleaded guilty "by reason of other matters
and not by reason of the statute" or because of any acts of the
trial judge. The court concluded that "the plea was voluntarily and
The Court of Appeal for the Tenth Circuit affirmed, determining
that the District Court's findings were supported by substantial
evidence and specifically approving the finding that petitioner's
plea of guilty was voluntary. 404 F.2d 601 (1968). We granted
certiorari, 395 U.S. 976 (1969), to consider the claim that the
Court of Appeals was in error in not reaching a contrary result on
the authority of this Court's decision in United States v.
Jackson, 390 U. S. 570
(1968). We affirm.
In United States v. Jackson, supra,
the defendants were
indicted under § 1201(a). The District Court dismissed the §
1201(a) count of the indictment, holding
Page 397 U. S. 746
the statute unconstitutional because it permitted imposition of
the death sentence only upon a jury's recommendation, and thereby
made the risk of death the price of a jury trial. This Court held
the statute valid, except for the death penalty provision; with
respect to the latter, the Court agreed with the trial court "that
the death penalty provision . . . imposes an impermissible burden
upon the exercise of a constitutional right. . . ." 390 U.S. at
390 U. S. 572
The problem was to determine
"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."
390 U.S. at 390 U. S. 581
The inevitable effect of the provision was said to be 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.
Because the legitimate goal of limiting the death penalty to cases
in which a jury recommends it could be achieved without penalizing
those defendants who plead not guilty and elect a jury trial, the
death penalty provision "needlessly penalize[d] the assertion of a
constitutional right," 390 U.S. at 390 U. S. 583
and was therefore unconstitutional.
Since the "inevitable effect" of the death penalty provision of
§ 1201(a) was said by the Court to be the needless encouragement of
pleas of guilty and waivers of jury trial, Brady contends that
requires the invalidation of every plea of guilty
entered under that section, at least when the fear of death is
shown to have been a factor in the plea. Petitioner, however, has
read far too much into the Jackson
The Court made it clear in Jackson
that it was not
holding § 1201(a) inherently coercive of guilty pleas:
"the fact that the Federal Kidnaping Act tends to discourage
defendants from insisting upon their innocence and demanding trial
by jury hardly implies that
Page 397 U. S. 747
every defendant who enters a guilty plea to a charge under the
Act does so involuntarily."
390 U.S. at 390 U. S. 583
Cited in support of this statement, 390 U.S. at 390 U. S. 583
n. 25, was Laboy v. New Jersey, 266 F.
(D.C. N.J.1967), where a plea of guilty (non
) under a similar statute was sustained as voluntary in
spite of the fact, as found by the District Court, that the
defendant was greatly upset by the possibility of receiving the
Moreover, the Court in Jackson
rejected a suggestion
that the death penalty provision of § 1201(a) be saved by
prohibiting in capital kidnaping cases all guilty pleas and jury
"however clear [the defendants'] guilt and however strong their
desire to acknowledge it in order to spare themselves and their
families the spectacle and expense of protracted courtroom
"[T]hat jury waivers and guilty pleas may occasionally be
rejected" was no ground for automatically rejecting all guilty
pleas under the statute, for such a rule "would rob the criminal
process of much of its flexibility." 390 U.S. at 390 U. S.
Plainly, it seems to us, Jackson
ruled neither that all
pleas of guilty encouraged by the fear of a possible death sentence
are involuntary pleas nor that such encouraged pleas are invalid
whether involuntary or not. Jackson
imposition of the death penalty under § 1201(a), but that decision
neither fashioned a new standard for judging the validity of guilty
pleas nor mandated a new application of the test theretofore
fashioned by courts and since reiterated that guilty pleas are
valid if both "voluntary" and "intelligent." See Boykin v.
Alabama, 395 U. S. 238
395 U. S. 242
(1969). [Footnote 4
Page 397 U. S. 748
That a guilty plea is a grave and solemn act to be accepted only
with care and discernment has long been recognized. Central to the
plea and the foundation for entering judgment against the defendant
is the defendant's admission in open court that he committed the
act charged in the indictment. He thus stands as a witness against
himself, and he is shielded by the Fifth Amendment from being
compelled to do so -- hence the minimum requirement that his plea
be the voluntary expression of his own choice. [Footnote 5
] But the plea is more than an admission
of past conduct; it is the defendant's consent that judgment of
conviction may be entered without a trial -- a waiver of his right
to trial before a jury or a judge. Waivers of constitutional rights
not only must be voluntary, but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and
likely consequences. [Footnote
] On neither score was Brady's plea of guilty invalid.
Page 397 U. S. 749
The trial judge in 1959 found the plea voluntary before
accepting it; the District Court in 1968, after an evidentiary
hearing, found that the plea was voluntarily made; the Court of
Appeals specifically approved the finding of voluntariness. We see
no reason on this record to disturb the judgment of those courts.
Petitioner, advised by competent counsel, tendered his plea after
his codefendant, who had already given a confession, determined to
plead guilty and became available to testify against petitioner. It
was this development that the District Court found to have
triggered Brady's guilty plea.
The voluntariness of Brady's plea can be determined only by
considering all of the relevant circumstances surrounding it.
Cf. Haynes v. Washington, 373 U.
, 373 U. S. 513
(1963); Leyra v. Denno, 347 U. S. 556
347 U. S. 558
(1954). One of these circumstances was the possibility of a heavier
sentence following a guilty verdict after a trial. It may be that
Brady, faced with a strong case against him and recognizing that
his chances for acquittal were slight, preferred to plead guilty,
and thus limit the penalty to life imprisonment, rather than to
elect a jury trial which could result in a death penalty. [Footnote 7
Page 397 U. S. 750
even if we assume that Brady would not have pleaded guilty
except for the death penalty provision of § 1201(a), this
assumption merely identifies the penalty provision as a "but for"
cause of his plea. That the statute caused the plea in this sense
does not necessarily prove that the plea was coerced and invalid as
an involuntary act.
The State to some degree encourages pleas of guilty at every
important step in the criminal process. For some people, their
breach of a State's law is alone sufficient reason for surrendering
themselves and accepting punishment. For others, apprehension and
charge, both threatening acts by the Government, jar them into
admitting their guilt. In still other cases, the post-indictment
accumulation of evidence may convince the defendant and his counsel
that a trial is not worth the agony and expense to the defendant
and his family. All these pleas of guilty are valid in spite of the
State's responsibility for some of the factors motivating the
pleas; the pleas are no more improperly compelled than is the
decision by a defendant at the close of the State's evidence at
trial that he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea by
actual or threatened physical harm or by mental coercion
overbearing the will of the defendant. But nothing of the sort is
claimed in this case; nor is there evidence that Brady was so
gripped by fear of the death penalty or hope of leniency that he
did not or could not, with the help of counsel, rationally weigh
the advantages of going to trial against the advantages of pleading
guilty. Brady's claim is of a different sort: that it violates the
Fifth Amendment to influence or encourage a guilty plea by
opportunity or promise of leniency, and that a guilty plea is
coerced and invalid if influenced by the fear of a possibly higher
Page 397 U. S. 751
the crime charged if a conviction is obtained after the State is
put to its proof.
Insofar as the voluntariness of his plea is concerned, there is
little to differentiate Brady from (1) the defendant, in a
jurisdiction where the judge and jury have the same range of
sentencing power, who pleads guilty because his lawyer advises him
that the judge will very probably be more lenient than the jury;
(2) the defendant, in a jurisdiction where the judge alone has
sentencing power, who is advised by counsel that the judge is
normally more lenient with defendants who plead guilty than with
those who go to trial; (3) the defendant who is permitted by
prosecutor and judge to plead guilty to a lesser offense included
in the offense charged, and (4) the defendant who pleads guilty to
certain counts with the understanding that other charges will be
dropped. In each of these situations, [Footnote 8
] as in Brady's case, the defendant might never
plead guilty absent the possibility or certainty that the plea will
result in a lesser penalty than the sentence that could be imposed
after a trial and a verdict of guilty. We decline to hold, however,
that a guilty plea is compelled and invalid under the Fifth
Amendment whenever motivated by the defendant's desire to accept
the certainty or probability of a lesser penalty rather than face a
wider range of possibilities extending from acquittal to conviction
and a higher penalty authorized by law for the crime charged.
The issue we deal with is inherent in the criminal law and its
administration, because guilty pleas are not
Page 397 U. S. 752
constitutionally forbidden, because the criminal law
characteristically extends to judge or jury a range of choice in
setting the sentence in individual cases, and because both the
State and the defendant often find it advantageous to preclude the
possibility of the maximum penalty authorized by law. For a
defendant who sees slight possibility of acquittal, the advantages
of pleading guilty and limiting the probable penalty are obvious --
his exposure is reduced, the correctional processes can begin
immediately, and the practical burdens of a trial are eliminated.
For the State, there are also advantages -- the more promptly
imposed punishment after an admission of guilt may more effectively
attain the objectives of punishment, and, with the avoidance of
trial, scarce judicial and prosecutorial resources are conserved
for those cases in which there is a substantial issue of the
defendant's guilt or in which there is substantial doubt that the
State can sustain its burden of proof. [Footnote 9
] It is this mutuality of advantage that perhaps
explains the fact that, at present, well over three-fourths of the
criminal convictions in this country rest on pleas of guilty,
] a great many
of them no doubt motivated at least in part by the hope or
assurance of a lesser penalty than might be imposed if there were a
guilty verdict after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable
does not necessarily validate those pleas or
Page 397 U. S. 753
the system which produces them. But we cannot hold that it is
unconstitutional for the State to extend a benefit to a defendant
who, in turn, extends a substantial benefit to the State and who
demonstrates by his plea that he is ready and willing to admit his
crime and to enter the correctional system in a frame of mind that
affords hope for success in rehabilitation over a shorter period of
time than might otherwise be necessary.
A contrary holding would require the States and Federal
Government to forbid guilty pleas altogether, to provide a single
invariable penalty for each crime defined by the statutes, or to
place the sentencing function in a separate authority having no
knowledge of the manner in which the conviction in each case was
obtained. In any event, it would be necessary to forbid prosecutors
and judges to accept guilty pleas to selected counts, to lesser
included offenses, or to reduced charges. The Fifth Amendment does
not reach so far.
Bram v. United States, 168 U.
(1897), held that the admissibility of a
confession depended upon whether it was compelled within the
meaning of the Fifth Amendment. To be admissible, a confession must
"'free and voluntary: that is, must not be extracted by any sort
of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper
168 U.S. at 168 U. S.
-543. More recently, Malloy v. Hogan,
378 U. S. 1
carried forward the Bram
definition of compulsion in the
course of holding applicable to the States the Fifth Amendment
privilege against compelled self-incrimination. [Footnote 11
Page 397 U. S. 754
is not inconsistent with our holding that Brady's
plea was not compelled even though the law promised him a lesser
maximum penalty if he did not go to trial. Bram
a confession given by a defendant in custody, alone and
unrepresented by counsel. In such circumstances, even a mild
promise of leniency was deemed sufficient to bar the confession,
not because the promise was an illegal act as such, but because
defendants at such times are too sensitive to inducement, and the
possible impact on them too great, to ignore and too difficult to
assess. But Bram
and its progeny did not hold that the
possibly coercive impact of a promise of leniency could not be
dissipated by the presence and advice of counsel, any more than
Miranda v. Arizona, 384 U. S. 436
(1966), held that the possibly coercive atmosphere of the police
station could not be counteracted by the presence of counsel or
other safeguards. [Footnote
Brady's situation bears no resemblance to Bram's. Brady first
pleaded not guilty; prior to changing his plea to guilty, he was
subjected to no threats or promises in face-to-face encounters with
the authorities. He had competent counsel and full opportunity to
assess the advantages and disadvantages of a trial as compared with
those attending a plea of guilty; there was no hazard of an
impulsive and improvident response to a seeming but unreal
advantage. His plea of guilty was entered in open court, and before
a judge obviously sensitive to
Page 397 U. S. 755
the requirements of the law with respect to guilty pleas.
Brady's plea, unlike Bram's confession, was voluntary.
The standard as to the voluntariness of guilty pleas must be
essentially that defined by Judge Tuttle of the Court of Appeals
for the Fifth Circuit:
"'[A] plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are, by their
nature, improper as having no proper relationship to the
prosecutor's business (e.g.,
bribes).' 242 F.2d at page
115. [Footnote 13
Under this standard, a plea of guilty is not invalid merely
because entered to avoid the possibility of a death penalty.
Page 397 U. S. 756
The record before us also supports the conclusion that Brady's
plea was intelligently made. He was advised by competent counsel,
he was made aware of the nature of the charge against him, and
there was nothing to indicate that he was incompetent or otherwise
not in control of his mental faculties; once his confederate had
pleaded guilty and became available to testify, he chose to plead
guilty, perhaps to ensure that he would face no more than life
imprisonment or a term of years. Brady was aware of precisely what
he was doing when he admitted that he had kidnaped the victim and
had not released her unharmed.
It is true that Brady's counsel advised him that § 1201(a)
empowered the jury to impose the death penalty and that, nine years
later, in United States v. Jackson, supra,
the Court held
that the jury had no such power as long as the judge could impose
only a lesser penalty if trial was to the court or there was a plea
of guilty. But these facts do not require us to set aside Brady's
Often the decision to plead guilty is heavily influenced by the
defendant's appraisal of the prosecution's case against him and by
the apparent likelihood of securing leniency should a guilty plea
be offered and accepted. Considerations like these frequently
present imponderable questions for which there are no certain
answers; judgments may be made that, in the light of later events,
seem improvident, although they were perfectly
Page 397 U. S. 757
sensible at the time. The rule that a plea must be intelligently
made to be valid does not require that a plea be vulnerable to
later attack if the defendant did not correctly assess every
relevant factor entering into his decision. A defendant is not
entitled to withdraw his plea merely because he discovers long
after the plea has been accepted that his calculus misapprehended
the quality of the State's case or the likely penalties attached to
alternative courses of action. More particularly, absent
misrepresentation or other impermissible conduct by state agents,
cf. Von Moltke v. Gillies, 332 U.
(1948), a voluntary plea of guilty intelligently
made in the light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the plea
rested on a faulty premise. A plea of guilty triggered by the
expectations of a competently counseled defendant that the State
will have a strong case against him is not subject to later attack
because the defendant's lawyer correctly advised him with respect
to the then existing law as to possible penalties, but later
pronouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than was
reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v.
does not impugn the truth or reliability of
his plea. We find no requirement in the Constitution that a
defendant must be permitted to disown his solemn admissions in open
court that he committed the act with which he is charged simply
because it later develops that the State would have had a weaker
case than the defendant had thought or that the maximum penalty
then assumed applicable has been held inapplicable in subsequent
This is not to say that guilty plea convictions hold no hazards
for the innocent, or that the methods of taking guilty pleas
presently employed in this country are
Page 397 U. S. 758
necessarily valid in all respects. This mode of conviction is no
more foolproof than full trials to the court or to the jury.
Accordingly, we take great precautions against unsound results, and
we should continue to do so, whether conviction is by plea or by
trial. We would have serious doubts about this case if the
encouragement of guilty pleas by offers of leniency substantially
increased the likelihood that defendants, advised by competent
counsel, would falsely condemn themselves. But our view is to the
contrary, and is based on our expectations that courts will satisfy
themselves that pleas of guilty are voluntarily and intelligently
made by competent defendants with adequate advice of counsel, and
that there is nothing to question the accuracy and reliability of
the defendants' admissions that they committed the crimes with
which they are charged. In the case before us, nothing in the
record impeaches Brady's plea or suggests that his admissions in
open court were anything but the truth.
Although Brady's plea of guilty may well have been motivated in
part by a desire to avoid a possible death penalty, we are
convinced that his plea was voluntarily and intelligently made, and
we have no reason to doubt that his solemn admission of guilt was
MR. JUSTICE BLACK, while adhering to his belief that United
States v. Jackson, 390 U. S. 570
wrongly decided, concurs in the judgment and in substantially all
of the opinion in this case.
[For opinion of MR. JUSTICE BRENNAN, concurring in the result,
p. 397 U. S.
"Whoever knowingly transports in interstate or foreign commerce,
any person who has been unlawfully seized, confined, inveigled,
decoyed, kidnaped, abducted, or carried away and held for ransom or
reward or otherwise, except, in the case of a minor, by a parent
thereof, shall be punished (1) by death if the kidnaped person has
not been liberated unharmed, and if the verdict of the jury shall
so recommend, or (2) by imprisonment for any term of years or for
life, if the death penalty is not imposed."
Eight days after petitioner pleaded guilty, he was brought
before the court for sentencing. At that time, the court questioned
petitioner for a second time about the voluntariness of his
"THE COURT: . . . Having read the presentence report and the
statement you made to the probation officer, I want to be certain
that you know what you are doing and you did know when you entered
a plea of guilty the other day. Do you want to let that plea of
guilty stand, or do you want to withdraw it and plead not
"DEFENDANT BRADY: I want to let that plea stand, sir."
"THE COURT: You understand that, in doing that, you are
admitting and confessing the truth of the charge contained in the
indictment and that you enter a plea of guilty voluntarily, without
persuasion, coercion of any kind? Is that right?"
"DEFENDANT BRADY: Yes, your Honor."
"THE COURT: And you do do that?"
"DEFENDANT BRADY: Yes, I do."
"THE COURT: You plead guilty to the charge?"
"DEFENDANT BRADY: Yes, I do."
When petitioner pleaded guilty, Rule 11 read as follows:
"A defendant may plead not guilty, guilty or, with the consent
of the court, nolo contendere.
The court may refuse to
accept a plea of guilty, and shall not accept the plea without
first determining that the plea is made voluntarily with
understanding of the nature of the charge. If a defendant refuses
to plead or if the court refuses to accept a plea of guilty or if a
defendant corporation fails to appear, the court shall enter a plea
of not guilty."
Rule 11 was amended in 1966 and now reads as follows:
"A defendant may plead not guilty, guilty or, with the consent
of the court, nolo contendere.
The court may refuse to
accept a plea of guilty, and shall not accept such plea or a plea
of nolo contendere
without first addressing the defendant
personally and determining that the plea is made voluntarily with
understanding of the nature of the charge and the consequences of
the plea. If a defendant refuses to plead, or if the court refuses
to accept a plea of guilty, or if a defendant corporation fails to
appear, the court shall enter a plea of not guilty. The court shall
not enter a judgment upon a plea of guilty unless it is satisfied
that there is a factual basis for the plea."
In McCarthy v. United States, 394 U.
(1969), we held that a failure to comply with
Rule 11 required that a defendant who had pleaded guilty be allowed
to plead anew. In Halliday v. United States, 394 U.
(1969), we held that the McCarthy
should apply only in cases where the guilty plea was accepted after
April 2, 1969, the date of the McCarthy
The requirement that a plea of guilty must be intelligent and
voluntary to be valid has long been recognized. See
| 5 and
S. 742fn6|>6, infra.
The new element
added in Boykin
was the requirement that the record must
affirmatively disclose that a defendant who pleaded guilty entered
his plea understandingly and voluntarily. This Court has not yet
passed on the question of the retroactivity of this new
Machibroda v. United States, 368 U.
, 368 U. S. 493
(1962); Waley v. Johnston, 316 U.
, 316 U. S. 104
(1942); Walker v. Johnston, 312 U.
, 312 U. S. 286
(1941); Chambers v. Florida, 309 U.
(1940); Kercheval v. United States,
274 U. S. 220
274 U. S. 223
See Brookhart v. Janis, 384 U. S.
(1966); Adams v. United States ex rel.
McCann, 317 U. S. 269
317 U. S. 275
(1942); Johnson v. Zerbst, 304 U.
, 304 U. S. 464
(1938); Patton v. United States, 281 U.
, 281 U. S. 312
Since an intelligent assessment of the relative advantages of
pleading guilty is frequently impossible without the assistance of
an attorney, this Court. has scrutinized with special care pleas of
guilty entered by defendants without the assistance of counsel and
without a valid waiver of the right to counsel. See
Pennsylvania ex rel. Herman v. Claudy, 350 U.
(1956); Von Moltke v. Gillies,
332 U. S. 708
332 U. S. 727
(1948) (opinions of BLACK and Frankfurter, JJ.); Williams v.
Kaiser, 323 U. S. 471
(1945). Since Gideon v. Wainwright, 372 U.
(1963), it has been clear that a guilty plea to a
felony charge entered without counsel and without a waiver of
counsel is invalid. See White v. Maryland, 373 U. S.
(1963); Arsenault v. Massachusetts,
393 U. S. 5
The importance of assuring that a defendant does not plead
guilty except with a full understanding of the charges against him
and the possible consequences of his plea was at the heart of our
recent decisions in McCarthy v. United States, supra,
Boykin v. Alabama, 395 U. S. 238
nn. 3 and
| 3 and
Such a possibility seems to have been rejected by the District
Court in the § 2255 proceedings. That court found that "the plea of
guilty was made by the petitioner by reason of other matters, and
not by reason of the statute. . . ."
We here make no reference to the situation where the prosecutor
or judge, or both, deliberately employ their charging and
sentencing powers to induce a particular defendant to tender a plea
of guilty. In Brady' case, there is no claim that the prosecutor
threatened prosecution on a charge not justified by the evidence or
that the trial judge threatened Brady with a harsher sentence if
convicted after trial in order to induce him to plead guilty.
For a more elaborate discussion of the factors that may justify
a reduction in penalty upon a plea of guilty, see
Bar Association Project on Standards for Criminal Justice, Pleas of
Guilty § 1.8 and commentary, pp. 37-52 (Approved Draft 1968).
It has been estimated that about 90%, and perhaps 95%, of all
criminal convictions are by pleas of guilty; between 70% and 85% of
all felony convictions are estimated to be by guilty plea. D.
Newman, Conviction, The Determination of Guilt or Innocence Without
Trial 3 and n. 1 (1966).
Malloy v. Hogan, 378 U. S. 1
378 U. S. 7
(1964). See also Haynes v. Washington, 373 U.
, 373 U. S. 513
(1963); Lynumn v. Illinois, 372 U.
(1963); Wilson v. United States,
162 U. S. 613
162 U. S.
"The presence of counsel in all the cases before us today would
be the adequate protective device necessary to make the process of
police interrogation conform to the dictates of the privilege
[against compelled self-incrimination]. His presence would insure
that statements made in the government-established atmosphere are
not the product of compulsion."
Miranda v. Arizona, 384 U. S. 436
384 U. S. 466
Shelton v. United States,
246 F.2d 571, 572 n. 2 (C.A.
5th Cir.1957) (en banc), rev'd on confession of error on other
grounds, 356 U. S. 26
Our conclusion in this regard seems to coincide with the
conclusions of most of the lower federal courts that have
considered whether a guilty plea to avoid a possible death penalty
is involuntary. See United States ex rel. Brown v.
424 F.2d 457 (C.A.2d Cir.1970); United States v.
415 F.2d 1216 (C.A. 9th Cir.1969); Pindell v.
296 F. Supp. 751 (D.C. Conn.1969);
McFarland v. United States, 284 F.
(D.C. Md.1968), aff'd,
No. 13, 146 (C.A.4th
Cir., May 1, 1969), cert. denied, post,
p. 1077; Laboy
v. New Jersey, 266 F.
(D.C. N.J.1967); Gilmore v. California,
F.2d 916 (C.A. 9th Cir.1966); Busby v. Holman,
356 F.2d 75
(C.A. 5th Cir.1966); Cooper v. Holman,
356 F.2d 82 (C.A.
5th Cir.), cert. denied,
385 U.S. 855 (1966); Godlock
259 F. Supp. 659 (D.C.E.D. N.C.1966); United
States ex rel. Robinson v. Fay,
348 F.2d 705 (C.A.2d
Cir.1965), cert. denied,
382 U.S. 997 (1966); Overman
v. United States,
281 F.2d 497 (C.A. 6th Cir.1960), cert.
368 U.S. 993 (1962); Martin v. United States,
256 F.2d 345 (C.A. 5th Cir.), cert. denied,
358 U.S. 921
(1958). But see Shaw v. United States,
299 F. Supp. 824
(D.C.S.D. Ga.1969); Alford v. North Carolina,
405 F.2d 340
(C.A.4th Cir.1968), prob. juris. noted,
394 U.S. 956
(1969), restored to calendar for reargument, post,