Petitioner, a 15-year-old Negro, was arrested for burglary and
rape, and later made a confession to police, which he advised his
retained counsel had not been prompted by threats, promises, or
fear. After being indicted for first-degree burglary (a capital
offense in North Carolina), petitioner and his mother, after
consulting counsel, authorized the entry of a guilty plea with the
understanding that its acceptance would mandate a sentence of life
imprisonment. That sentence was imposed after petitioner had
assured the trial judge that his plea was freely made. Thereafter,
petitioner sought post-conviction relief, claiming that his guilty
plea was the product of a coerced confession and that the
indictment was invalid because Negroes had been systematically
excluded from the grand jury that returned the indictment. A State
court, after hearing, denied post-conviction relief. The North
Carolina Court of Appeals affirmed, finding that petitioner's plea
of guilty was intelligent, and rejecting the claim, additionally
asserted by petitioner, that his guilty plea was involuntary
because North Carolina statutes at that time allowed a defendant to
escape the possibility of a death penalty on a capital charge by
pleading guilty to that charge. The court refused to consider
petitioner's claim concerning the composition of the grand jury,
since petitioner had failed to comply with a state law requiring
that such a contention must, before entry of a guilty plea, be
raised by a motion to quash the indictment.
Held:
1. On the basis of the record in this case, petitioner's guilty
plea was voluntary. Pp.
397 U. S.
794-796.
(a) An otherwise valid plea is not involuntary because induced
by a defendant's desire to limit the possible maximum penalty to
less than that authorized if there is a jury trial.
Brady v.
United States, ante, p.
397 U. S. 742. Pp.
397 U. S.
794-795.
(b) Even if (despite abundant evidence to the contrary)
petitioner's confession should have been found involuntary, the
connection between his confession and the guilty plea, entered over
a month later, had "become so attenuated as to dissipate the
taint." Pp.
397 U. S.
795-796.
Page 397 U. S. 791
2. On the record in this case, petitioner's guilty plea was an
intelligent plea not open to attack on the ground that his counsel
misjudged the admissibility of petitioner's confession.
McMann
v. Richardson, ante, p.
397 U. S. 759. Pp.
397 U. S.
796-798.
3. North Carolina procedural law furnished an adequate basis for
the refusal of the court below to consider petitioner's racial
exclusion claim regarding the composition of the grand jury that
indicted him. Pp.
397 U. S.
798-799.
2 N.C.App. 27, 12 S.E.2d 526, affirmed.
MR. JUSTICE WHITE delivered the opinion of the Court.
At about 11 p.m. on July 16, 1964, petitioner was arrested after
entering the yard of a home where a burglary and rape had been
committed four days earlier. Petitioner, a Negro boy then 15 years
old, was taken to the police station and was questioned for one or
two hours. After the questioning, petitioner was placed alone in a
dimly lit cell for the remainder of the night. Although petitioner
refused to give even his name during the questioning, the police
eventually determined his identity and notified petitioner's mother
the next day between 3:30 and 4:30 a.m. That morning, petitioner
was given drinking water and was then questioned by the police;
petitioner almost immediately confessed to the burglary and rape
committed several days earlier at the house where he had been
arrested. Shortly thereafter,
Page 397 U. S. 792
an attorney retained by petitioner's mother came to the police
station and talked with petitioner. Petitioner told the attorney
that the confession had not been prompted by threats or promises,
and that he had not been frightened when he made the statement to
the police.
Petitioner was indicted for first-degree burglary, an offense
punishable by death under North Carolina law. [
Footnote 1] Petitioner's retained attorney
discussed with petitioner and his mother the nature and seriousness
of the charge. In due course, petitioner and his mother signed
written statement authorizing the entry of a plea of guilty. Both
petitioner and his mother were aware at the time they signed the
authorization for the guilty plea that, if the plea was accepted,
petitioner would receive the mandatory sentence of life
imprisonment. [
Footnote 2] The
prosecutor
Page 397 U. S. 793
and the trial judge accepted the plea. In accepting the plea on
August 18, 1964, the trial court asked the petitioner if the plea
was made in response to any promise or threat, and petitioner
answered in the negative; petitioner affirmed that he tendered the
plea "freely without any fear or compulsion." [
Footnote 3] Upon acceptance of the plea,
petitioner was sentenced to life imprisonment.
In 1967, petitioner, assisted by counsel, filed a petition under
the North Carolina Post-Conviction Hearing Act [
Footnote 4] to obtain relief from his conviction.
In his petition, Parker urged that his plea of guilty was the
product of a coerced confession and that the indictment to
which
Page 397 U. S. 794
he pleaded was invalid because members of his race had been
systematically excluded from the grand jury which returned the
indictment. After a hearing, the Superior Court of Halifax County
found that there was no deliberate exclusion of Negroes from the
grand jury that indicted petitioner and that petitioner had freely
admitted his guilt and had pleaded guilty "freely, voluntarily,
without threat, coercion or duress. . . ." The Court of Appeals of
North Carolina, the highest state court in which petitioner could
seek review, [
Footnote 5]
affirmed the conviction after reviewing not only the claims
presented to the lower court, but also the additional assertion by
petitioner that his guilty plea was involuntary because North
Carolina statutes at that time allowed a defendant to escape the
possibility of a death penalty on a capital charge by pleading
guilty to that charge. 2 N.C.App. 27,
162
S.E.2d 526 (1968). We granted certiorari, 395 U.S. 974 (1969),
to consider petitioner's federal constitutional claims. For the
reasons presented below, we affirm.
I
Parker would have us hold his guilty plea involuntary, and
therefore invalid, for two reasons: first, because it was induced
by a North Carolina statute providing a maximum penalty in the
event of a plea of guilty lower than the penalty authorized after a
verdict of guilty by a jury; and, second, because the plea was the
product of a coerced confession given to the police shortly after
petitioner was arrested. Neither reason is sufficient to warrant
setting aside Parker's plea.
It may be that, under
United States v. Jackson,
390 U. S. 570
(1968), it was unconstitutional to impose the death penalty under
the statutory framework which existed
Page 397 U. S. 795
in North Carolina at the time of Parker's plea. [
Footnote 6] Even so, we determined in
Brady v. United States, ante, p.
397 U. S. 742,
that an otherwise valid plea is not involuntary because induced by
the defendant's desire to limit the possible maximum penalty to
less than that authorized if there is a jury trial. In this
respect, we see nothing to distinguish Parker's case from
Brady's.
Nor can we accept the claim that the plea was infirm because it
was the product of a coerced confession. According to Parker's
testimony at the post-conviction hearing, he was denied food and
water, promised unspecified help if he confessed, and denied
counsel's advice when he requested it. In the record, however, was
an abundance of evidence contradicting Parker's claim of coercion:
Parker's statements to his attorney soon after his interrogation
that there had been no threats or promises and that he had not been
afraid, his similar declarations in his sworn statement authorizing
his plea, [
Footnote 7] his
answers to the trial judge at the time the plea was accepted,
[
Footnote 8] and his failure to
complain of any mistreatment by the police until many months after
he began serving his sentence. The North Carolina courts
accordingly refused to credit his testimony and concluded that his
confession was a free and voluntary act.
Page 397 U. S. 796
We would, in any event, be reluctant to question the judgment of
the state courts in this respect; but we need not evaluate the
voluntariness of petitioner's confession, since, even if the
confession should have been found involuntary, we cannot believe
that the alleged conduct of the police during the interrogation
period was of such a nature or had such enduring effect as to make
involuntary a plea of guilty entered over a month later. Parker
soon had food and water, the lack of counsel was immediately
remedied, and there was ample opportunity to consider the
significance of the alleged promises. After the allegedly coercive
interrogation, there were no threats, misrepresentations, promises,
or other improper acts by the State. Parker had the advice of
retained counsel and of his family for the month before he pleaded.
The connection, if any, between Parker's confession and his plea of
guilty had "become so attenuated as to dissipate the taint."
Nardone v. United States, 308 U.
S. 338,
308 U. S. 341
(1939);
Wong Sun v. United States, 371 U.
S. 471,
371 U. S. 491
(1963). As far as this record reveals, the guilty plea was Parker's
free and voluntary act, the product of his own choice, just as he
affirmed it was when the plea was entered in open court.
II
On the assumption that Parker's confession was inadmissible,
there remains the question whether his plea, even if voluntary, was
unintelligently made, because his counsel mistakenly thought his
confession was admissible. As we understand it, Parker's position
necessarily implies that his decision to plead rested on the
strength of the case against him: absent the confession, his
chances of acquittal were good, and he would have chosen to stand
trial; but, given the confession, the evidence was too strong, and
it was to his advantage to plead guilty and
Page 397 U. S. 797
limit the possible penalty to life imprisonment. [
Footnote 9] On this assumption, had Parker
and his counsel thought the confession inadmissible, there would
have been a plea of not guilty and a trial to a jury. But counsel
apparently deemed the confession admissible, and his advice to
plead guilty was followed by his client. Parker now considers his
confession involuntary and inadmissible. The import of this claim
is that he suffered from bad advice, and that, had he been
correctly counseled, he would have gone to trial rather than enter
a guilty plea. He suggests that he is entitled to plead again, a
suggestion that we reject.
For the reasons set out in
McMann v. Richardson, ante,
p.
397 U. S. 759,
even if Parker's counsel was wrong in his assessment of Parker's
confession, it does not follow that his error was sufficient to
render the plea unintelligent and entitle Parker to disavow his
admission in open court that he committed the offense with which he
was charged. [
Footnote 10]
Based on the facts of record relating to Parker's confession and
guilty plea, which we have previously detailed, we think the advice
he received was well within the range of competence required of
attorneys
Page 397 U. S. 798
representing defendants in criminal cases. Parker's plea of
guilty was an intelligent plea not open to attack on the grounds
that counsel misjudged the admissibility of Parker's
confession.
III
We also have before us the question whether the indictment to
which Parker pleaded is invalid because members of his race were
allegedly systematically excluded from the grand jury that returned
the indictment. The North Carolina Court of Appeals refused to
consider the claim, since, under North Carolina law an objection to
the composition of the grand jury must be raised by motion to quash
the indictment prior to the entry of the guilty plea. [
Footnote 11] Because Parker had
failed to raise his objection in timely fashion, relief was
unavailable. This state rule of practice would constitute an
adequate state ground precluding our reaching the grand jury issue
if this case were here on direct review.
See Fay v. Noia,
372 U. S. 391,
372 U. S.
428-429 (1963). We are under similar constraint when
asked to review a state court decision holding that the same rule
of practice requires denial of collateral relief.
Ibid.
Whether the question of racial exclusion in the selection of the
grand jury is open in a federal habeas corpus action we need not
decide.
Compare United States ex rel. Goldsby v.
Page 397 U. S. 799
Harpole, 263 F.2d 71 (C.A. 5th Cir.),
cert.
denied, 361 U.S. 838 and 850 (1959),
with Labat v.
Bennett, 365 F.2d 698 (C.A. 5th Cir.1966),
cert.
denied, 386 U.S. 991 (1967).
See also McNeil v. North
Carolina, 368 F.2d 313 (C.A.4th Cir.1966).
The North Carolina Court of Appeals correctly concluded that
petitioner's plea of guilty was intelligent and voluntary, and
there was an adequate basis in North Carolina procedural law for
the North Carolina Court of Appeals' refusal to consider the claim
of racial exclusion in the composition of the grand jury that
indicted petitioner.
Affirmed.
[
Footnote 1]
In North Carolina the crime of first-degree burglary is defined
as follows:
"There shall be two degrees in the crime of burglary as defined
at the common law. If the crime be committed in a dwelling house,
or in a room used as a sleeping apartment in any building, and any
person is in the actual occupation of any part of said dwelling
house or sleeping apartment at the time of the commission of such
crime it shall be burglary in the first degree."
N.C.Gen.Stat. § 151 (1969 Repl. vol.).
The punishment for first-degree burglary is death unless the
jury recommends that the penalty be life imprisonment:
"Any person convicted, according to due course of law, of the
crime of burglary in the first degree shall suffer death: Provided,
if the jury when rendering its verdict in open court shall so
recommend, the punishment shall be imprisonment for life in the
State's prison, and the court shall so instruct the jury."
N.C.Gen.Stat. § 152 (1969 Repl. vol.).
[
Footnote 2]
At the time petitioner's plea was entered, North Carolina law
provided that, if a plea of guilty to first-degree burglary was
accepted, the punishment would be life imprisonment, rather than
death:
"(a) Any person, when charged in a bill of indictment with the
felony of murder in the first degree, or burglary in the first
degree, or arson, or rape, when represented by counsel, whether
employed by the defendant or appointed by the court . . . may,
after arraignment, tender in writing, signed by such person and his
counsel, a plea of guilty of such crime, and the State, with the
approval of the court, may accept such plea. Upon rejection of such
plea, the trial shall be upon the defendant's plea of not guilty,
and such tender shall have no legal significance whatever."
"(b) In the event such plea is accepted, the tender and
acceptance thereof shall have the effect of a jury verdict of
guilty of the crime charged with recommendation by the jury in open
court that the punishment shall be imprisonment for life in the
State's prison, and thereupon, the court shall pronounce judgment
that the defendant be imprisoned for life in the State's
prison."
N.C.Gen.Stat. § 15-162.1 (1965 Repl. vol.), repealed, effective
March 25, 1969, N.C.Laws 1969, c. 117.
[
Footnote 3]
The Court: "Has anybody made you any promise or forced you in
any way to make this plea?"
Petitioner: "No, sir."
The Court: "Did you sign this plea freely without any fear or
compulsion?"
Petitioner: "Yes, sir."
The Court: "Has any person promised you anything if you do
this?"
Petitioner: "No, sir." App. 46.
[
Footnote 4]
N.C.Gen.Stat. §§ 15-217 to 15-222 (Supp. 1969).
[
Footnote 5]
N.C.Gen.Stat. § 7A-28 (1969 Repl. vol.).
[
Footnote 6]
The statute authorizing guilty pleas to capital charges was
repealed, effective March 25, 1969.
See n 2,
supra. As a result of the
repeal, a person who is charged with a capital offense and who is
not allowed to plead to a lesser charge must apparently face a jury
trial and a death penalty upon a verdict of guilty unless the jury
recommends life imprisonment.
[
Footnote 7]
In his affidavit authorizing the entry of a plea of guilty,
Parker stated that:
"I have not been threatened or abused in any manner by any
person, and no promises have been made to me if I plead guilty to
any charge."
[
Footnote 8]
See n 3,
supra,
[
Footnote 9]
The North Carolina Court of Appeals noted that the prosecution
may have had strong evidence against Parker in addition to the
confession, and that, if other strong evidence existed, the guilty
plea could not be viewed as the product of the confession. 2
N.C.App. 27, 32,
162
S.E.2d 526, 529 (1968).
[
Footnote 10]
We find nothing in the record raising any doubts about the
integrity of petitioner's admission. The following appears in the
findings entered after the post-conviction hearing in the state
trial court:
"[S]aid petitioner defendant freely admitted to his attorney his
guilt of the crime with which he was charged; in fact, said
petitioner defendant Charles Lee Parker, upon cross-examination at
this hearing, and the Court so finds as a fact, has freely admitted
his guilt of the capital offense of burglary and rape. . . ."
[
Footnote 11]
"All exceptions to grand jurors on account of their
disqualifications shall be taken before the petit jury is sworn and
impaneled to try the issue, by motion to quash the indictment, and
if not taken at that time shall be deemed to be waived. . . ."
N.C.Gen.Stat. § 9-23 (1969 Repl. vol.).
See State v.
Rorie, 258 N.C. 162,
128 S.E.2d
229 (1962). Under North Carolina law, a guilty plea does not
waive objections to racial exclusion in the selection of the grand
jury if, before the plea of guilty, the defendant raises his
objection in a motion to quash the indictment.
State v.
Covington, 258 N.C. 501,
128
S.E.2d 827 (1963).
MR. JUSTICE BLACK, concurring.
I concur in the judgment of affirmance, and also concur in the
opinion except that part on pp.
397 U. S.
794-795 stating,
"It may be that, under
United States v. Jackson,
390 U. S.
570 (1968), it was unconstitutional to impose the death
penalty under the statutory framework which existed in North
Carolina at the time of Parker's plea."
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting in No. 268, and concurring in the
result in No. 270,
ante, p.
397 U. S. 742.
In
United States v. Jackson, 390 U.
S. 570 (1968), we held that the operative effect of the
capital punishment provisions of the Federal Kidnaping Act was
unconstitutionally
"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."
390 U.S. at
390 U. S. 581.
The petitioners in these cases claim that they were the victims of
the very vices we condemned in
Jackson. Yet the Court
paradoxically holds that each of the petitioners must be denied
relief even
Page 397 U. S. 800
if his allegations are substantiated. [
Footnote 2/1] Indeed, the Court apparently holds that
never, except perhaps in highly unrealistic hypothetical
situations, will the constitutional defects identified in
Jackson vitiate a guilty plea. [
Footnote 2/2] In so holding, the Court seriously
undermines the rational underpinnings of
Jackson and
departs broadly from our prior approach to the determination of the
voluntariness of guilty pleas and also confessions. This is merely
one manifestation of a design to insulate all guilty pleas from
subsequent attack no matter what influences induced them. I cannot
acquiesce in this wholesale retreat from the sound principles to
which we have previously adhered.
I
The Court properly notes the grave consequences for a defendant
that attach to his plea of guilty; for the
Page 397 U. S. 801
plea constitutes a simultaneous surrender of numerous
constitutional rights, including the privilege against compulsory
self-incrimination and the right to a trial by jury, with all of
its attendant safeguards.
McCarthy v. United States,
394 U. S. 459,
394 U. S. 466
(1969);
Boykin v. Alabama, 395 U.
S. 238,
395 U. S.
242-244 (1969). Indeed, we have pointed out that a
guilty plea is more serious than a confession because it is
tantamount to a conviction.
Kercheval v. United States,
274 U. S. 220,
274 U. S. 223
(1927). Accordingly, we have insisted that a guilty plea, like any
surrender of fundamental constitutional rights, reflect the
unfettered choice of the defendant.
See Boykin v. Alabama,
supra; Machibroda v. United States, 368 U.
S. 487,
368 U. S. 493
(1962). In deciding whether any illicit pressures have been brought
to bear on a defendant to induce a guilty plea, courts have
traditionally inquired whether it was made "voluntarily" and
"intelligently" with full understanding and appreciation of the
consequences.
The concept of "voluntariness" contains an ambiguous element,
accentuated by the Court's opinions in these cases, because the
concept has been employed to analyze a variety of pressures to
surrender constitutional rights, which are not all equally coercive
or obvious in their coercive effect. In some cases where an
"involuntary" surrender has been found, the physical or
psychological tactics employed exerted so great an influence upon
the accused that it could accurately be said that his will was
literally overborne or completely dominated by his interrogators,
who rendered him incapable of rationally weighing the legal
alternatives open to him. [
Footnote
2/3]
There is some intimation in the Court's opinions in the instant
cases that, at least with respect to guilty
Page 397 U. S. 802
pleas, "involuntariness" covers only the narrow class of cases
in which the defendant's will has been literally overborne. At
other points, however, the Court apparently recognizes that the
term "involuntary" has traditionally been applied to situations in
which an individual, while perfectly capable of rational choice,
has been confronted with factors that the government may not
constitutionally inject into the decisionmaking process. For
example, in
Garrity v. New Jersey, 385 U.
S. 493 (1967), we held a surrender of the
self-incrimination privilege to be involuntary when an individual
was presented by the government with the possibility of discharge
from his employment if he invoked the privilege. So, also, it has
long been held that certain promises of leniency or threats of
harsh treatment by the trial judge or the prosecutor unfairly
burden or intrude upon the defendant's decisionmaking process. Even
though the defendant is not necessarily rendered incapable of
rational choice, his guilty plea nonetheless may be invalid.
[
Footnote 2/4]
Thus, the legal concept of "involuntariness" has not been
narrowly confined, but refers to a surrender of constitutional
rights influenced by considerations that the government cannot
properly introduce. The critical question that divides the Court is
what constitutes an impermissible factor, or, more narrowly in the
context of these cases, whether the threat of the imposition of an
unconstitutional death penalty is such a factor. [
Footnote 2/5]
Page 397 U. S. 803
Even after the various meanings of "involuntary" have been
identified, application of voluntariness criteria in particular
circumstances remains an elusory process because it entails
judicial evaluation of the effect of particular external stimuli
upon the state of mind of the accused.
See Haley v. Ohio,
332 U. S. 596,
332 U. S. 603
(1948) (separate opinion of Frankfurter, J.). Nevertheless, we have
consistently taken great pains to insulate the accused from the
more obvious and oppressive forms of physical coercion. Beyond
this, in the analogous area of coerced confessions, for example, it
has long been recognized that various psychological devices, some
of a very subtle and sophisticated nature, may be employed to
induce statements. Such influences have been condemned by this
Court. [
Footnote 2/6] Thus, a
confession is not voluntary merely because it is the "product of a
sentient choice," if it does not reflect a free exercise of the
defendant's will.
Id. at
397 U. S. 606.
Indeed, as the Court recognizes, we held in an early case that the
concept of "voluntariness" requires that a confession
"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 influence."
Bram v. United States, 168 U.
S. 532,
168 U. S.
542-543 (1897). More recently, we held in
Malloy v.
Hogan, 378 U. S. 1 (1964),
that the Fifth and Fourteenth Amendments guarantee to every person
the right "to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty . . .
for such silence." 378 U.S. at
378 U. S. 8.
Cf. Garrity v. New Jersey, 385 U.
S. 493 (1967).
The Court's answer to the stringent criterion of voluntariness
imposed by
Bram and subsequent cases is
Page 397 U. S. 804
that the availability of counsel to an accused effectively
offsets the illicit influence upon him that threats or promises by
the government may impose. Of course, the presence of counsel is a
factor to be taken into account in any overall evaluation of the
voluntariness of a confession or a guilty plea. However, it hardly
follows that the support provided by counsel is sufficient, by
itself, to insulate the accused from the effect of any threat or
promise by the government.
It has frequently been held, for example, that a guilty plea
induced by threats or promises by the trial judge is invalid
because of the risk that the trial judge's impartiality will be
compromised, and because of the inherently unequal bargaining power
of the judge and the accused. [
Footnote
2/7] The assistance of counsel in this situation, of course,
may improve a defendant's bargaining ability, but it does not alter
the underlying inequality of power. Significantly, the Court
explicitly refrains from expressing its views on this issue.
(
Ante at
397 U. S. 751
n. 8.) This is an unfortunate omission, for judicial promises of
leniency in return for a guilty plea provide a useful analogy to
what has occurred in the instant cases. Here, the government has
promised the accused, through the legislature, that he will receive
a substantially reduced sentence if he pleads guilty. In fact, the
legislature has simultaneously threatened the accused with the
ultimate penalty -- death -- if he insists
Page 397 U. S. 805
upon a jury trial, and has promised a penalty no greater than
life imprisonment if he pleads guilty. [
Footnote 2/8]
It was precisely this statutorily imposed dilemma that we
identified in
Jackson as having the "inevitable effect" of
discouraging assertion of the right not to plead guilty and to
demand a jury trial. As recognized in
Jackson, it is
inconceivable that this sort of capital penalty scheme will not
have a major impact upon the decision of many defendants to plead
guilty. In any particular case, therefore, the influence of this
unconstitutional factor must necessarily be given weight in
determining the voluntariness of a plea. [
Footnote 2/9]
Page 397 U. S. 806
To be sure, we said in
Jackson that
"the fact that the Federal Kidnaping Act tends to discourage
defendants from insisting upon their innocence and demanding trial
by jury hardly implies that every defendant who enters a guilty
plea to a charge under the Act does so involuntarily. [
Footnote 2/10]"
390 U.S. at
30 U. S. 583.
But that statement merely emphasized the obvious fact that it is
perfectly possible that a defendant pleaded guilty for reasons
entirely unrelated to the penalty scheme, for example, because his
guilt was clear or because he desired to spare himself and his
family "the spectacle and expense of protracted
Page 397 U. S. 807
courtroom proceedings." 390 U.S. at
30 U. S. 584.
The converse, however, is equally clear: not every defendant who
pleaded guilty under the Act did so voluntarily, that is,
uninfluenced by the highly coercive character of the penalty
scheme. This much is merely the teaching of
Jackson.
The Court has elected to deny this latter aspect of
Jackson, but in doing so it undermines the rationale on
which
Jackson was decided. In
Jackson, we
invalidated the death penalty provision of the Kidnaping Act
because the Act's penalty scheme as a whole encouraged guilty pleas
and waivers of jury trial, and in the circumstances of particular
cases this improper influence could render pleas and waivers
constitutionally involuntary. Today the Court appears to
distinguish sharply between a guilty plea that has been
"encouraged" by the penalty scheme and one that has been entered
"involuntarily." However, if the influence of the penalty scheme
can never render a plea involuntary, it is difficult to understand
why, in
Jackson, we took the extraordinary step of
invalidating part of that scheme. Apparently in the Court's view,
we invalidated the death penalty in
Jackson because it
"encouraged" pleas that are perfectly valid despite the
encouragement. Rarely, if ever, have we overturned an Act of
Congress for what proves to be so frivolous a reason. Moreover, the
Court's present covert rejection of the
Jackson rationale,
together with its acceptance of the result in
Jackson,
leads to a striking anomaly. Since the death penalty provision of
the Kidnaping Act remains void, those who resisted the pressures
identified in
Jackson and, after a jury trial, were
sentenced to death receive relief, but those who succumbed to the
same pressures and were induced to surrender their constitutional
rights are left without any remedy at all. Where the penalty scheme
failed to produce it unconstitutional effect, the intended
Page 397 U. S. 808
victims obtain relief; where it succeeded, the real victims have
none. Thus, the Court puts a premium on strength of will and
invulnerability to pressure at the cost of constitutional
rights.
Of course, whether, in a given case, the penalty scheme has
actually exercised its pernicious influence so as to make a guilty
plea involuntary can be decided only by consideration of the
factors that actually motivated the defendant to enter his plea. If
a particular defendant can demonstrate that the death penalty
scheme exercised a significant influence upon his decision to plead
guilty, then, under
Jackson, he is entitled to reversal of
the conviction based upon his illicitly produced plea.
The Court attempts to submerge the issue of voluntariness of a
plea under an unconstitutional capital punishment scheme in a
general discussion of the pressures upon defendants to plead guilty
which are said to arise from,
inter alia, the venerable
institution of plea bargaining. The argument appears to reduce to
this: because the accused cannot be insulated from all inducements
to plead guilty, it follows that he should be shielded from
none.
The principal flaw in the Court's discourse on plea bargaining,
however, is that it is, at best, only marginally relevant to the
precise issues before us. There are critical distinctions between
plea bargaining as commonly practiced and the situation presently
under consideration -- distinctions which, in constitutional terms,
make a difference. Thus, whatever the merit, if any, of the
constitutional objections to plea bargaining generally, [
Footnote 2/11] those issues are not
presently before us.
Page 397 U. S. 809
We are dealing here with the legislative imposition of a
markedly more severe penalty if a defendant asserts his right to a
jury trial and a concomitant legislative promise of leniency if he
pleads guilty. This is very different from the give-and-take
negotiation common in plea bargaining between the prosecution and
defense, which arguably possess relatively equal bargaining power.
[
Footnote 2/12] No such
flexibility is built into the capital penalty scheme where the
government's harsh terms with respect to punishment are stated in
unalterable form.
Furthermore, the legislatively ordained penalty scheme may
affect any defendant, even one with respect to whom plea bargaining
is wholly inappropriate because his guilt is uncertain. [
Footnote 2/13] Thus, the penalty scheme
presents a clear danger that the innocent, or those not clearly
guilty or those who insist upon their innocence, will be induced
nevertheless to plead guilty. This hazard necessitates particularly
sensitive scrutiny of the voluntariness of guilty pleas entered
under this type of death penalty scheme.
The penalty schemes involved here are also distinguishable from
most plea bargaining because they involve the imposition of death
-- the most severe and awesome penalty known to our law. This Court
has recognized
Page 397 U. S. 810
that capital cases are treated differently, in some respects,
from noncapital cases.
See, e.g., Williams v. Georgia,
349 U. S. 375,
349 U. S. 391
(1955). We have identified the threat of a death penalty as a
factor to be given considerable weight in determining whether a
defendant has deliberately waived his constitutional rights. Thus,
for example, in
Green v. United States, 355 U.
S. 184 (1957), it was contended that a defendant
initially convicted of second-degree murder upon an indictment
charging first-degree murder waived his double jeopardy objections
to a second trial for murder in the first degree by taking a
successful appeal. We rejected this argument, observing that
"a defendant faced with such a 'choice' takes a 'desperate
chance' in securing the reversal of the erroneous conviction. The
law should not, and, in our judgment, does not, place the defendant
in such an incredible dilemma."
355 U.S. at
355 U. S. 193.
So also, in
Fay v. Noia, 372 U. S. 391
(1963), it was argued that the petitioner had deliberately failed
to seek redress through appeal of his conviction within the state
appellate process, and thus was not entitled to federal habeas
corpus relief. Noting that the petitioner had been confronted with
the "grisly choice" of forgoing his appellate rights or facing a
possible death sentence if his appeal were successful, we held that
the failure to seek state appellate review, motivated by fear of
the death penalty, could not be interposed to bar the federal
habeas corpus remedy. [
Footnote
2/14] 372 U.S. at
372 U. S.
438-440.
Page 397 U. S. 811
Finally, under our express holding in
Jackson, the
death penalty in no circumstances could have been constitutionally
imposed upon these defendants. [
Footnote 2/15] If they
Page 397 U. S. 812
had been aware of the constitutional deficiency in the penalty
scheme, they might well have decided to assert their right to a
jury trial, since the maximum penalty that could have been imposed
after an unfavorable jury verdict was life imprisonment. It is, in
this narrow context, involving a legislatively mandated
unconstitutional death penalty scheme, that the defendant should be
relieved of the rigid finality of his plea if he demonstrates that
it was a consequence of the unconstitutional scheme. [
Footnote 2/16]
II
Turning to the facts of these particular cases, I consider first
the contention that the North Carolina capital punishment scheme
under which Parker was convicted (
ante at
397 U. S.
792-793, nn. 1, 2), was constitutionally deficient
under
Page 397 U. S. 813
the standards set forth in
Jackson. Although the Court
assumes
arguendo that the North Carolina statutes were
indistinguishable from the Federal Kidnaping Act, this conclusion
is, in my view, inescapable. Under North Carolina law as it
formerly existed, the defendant in a capital case had but two
choices: he could demand a jury trial, and thereby risk the
imposition of the death penalty, or he could absolutely avoid that
possibility by pleading guilty. [
Footnote 2/17] If anything, the defect in the North
Carolina statutory scheme was more serious than that in the statute
considered in
Jackson, for, under the Kidnaping Act, a
defendant at least had a potential opportunity to avoid the death
penalty and to have his guilt determined in a bench trial.
Therefore, Parker is entitled to relief if he can demonstrate that
the unconstitutional capital punishment scheme was a significant
factor in his decision to plead guilty.
Parker comes here after denial of state post-conviction relief.
The North Carolina courts have consistently taken the position that
United States v. Jackson has no applicability to the
former North Carolina capital punishment
Page 397 U. S. 814
scheme. [
Footnote 2/18] Thus,
the merits of Parker's contention that his plea was motivated by
the unconstitutional death penalty have not been considered by the
state courts. I would, therefore, reverse the judgment of the North
Carolina Court of Appeals and remand the Parker case to that court
for proceedings not inconsistent with the principles elaborated
herein. [
Footnote 2/19]
III
In 1959, Brady was indicted under the Federal Kidnaping Act. The
indictment alleged that the kidnaped person had "not been liberated
unharmed." Thus, Brady was subject to a potential sentence of death
if he demanded a jury trial. [
Footnote 2/20] He ultimately elected to plead guilty, a
decision that followed a similar action by his codefendant.
Subsequently Brady was sentenced to 50 years' imprisonment. There
exists in the record substantial evidence that Brady decided to
plead guilty because the similar plea decision of his codefendant
seriously undermined his own defense. It is also true that Brady
was under the impression that the maximum penalty that could be
imposed following a jury trial was the death sentence.
A hearing was held pursuant to Brady's motion under 28 U.S.C. §
2255 to vacate his sentence, at which Brady, his codefendant, and
their trial attorneys testified. This
Page 397 U. S. 815
hearing was completed after the District Court had decided the
Jackson case, but before this Court had spoken in the
matter. The District Judge took the position that the death penalty
provision of the Federal Kidnaping Act was constitutional. In this
respect, of course, he erred. However, the District Judge also
concluded that Brady "decided to plead guilty when he learned that
his codefendant was going to plead guilty," and that this decision
was not induced or influenced improperly by anything the trial
judge or his attorney had told him. The District Court further
found that "the plea of guilty was made by [Brady] by reason of
other matters, and not by reason of [the Kidnaping Act]."
The decision in the Court of Appeals for the Tenth Circuit was
rendered after our decision in
Jackson. The Court of
Appeals correctly pointed out that not every plea entered under the
Federal Kidnaping Act is necessarily invalid, and ultimately
concluded that
"[t]he finding of the trial court that the guilty plea was not
made because of the statute, but because of other matters, is
supported by substantial evidence, and is binding on us."
An independent examination of the record in the instant case
convinces me that the conclusions of the lower courts are not
clearly erroneous. Although Brady was aware that he faced a
possible death sentence, there is no evidence that this factor
alone played a significant role in his decision to enter a guilty
plea. Rather, there is considerable evidence, which the District
Court credited, that Brady's plea was triggered by the confession
and plea decision of his codefendant, and not by any substantial
fear of the death penalty. Moreover, Brady's position is dependent
in large measure upon his own assertions, years after the fact,
that his plea was motivated by fear of the death penalty, and thus
rests
Page 397 U. S. 816
largely upon his own credibility. For example, there is no
indication, contemporaneous with the entry of the guilty plea, that
Brady thought he was innocent, and was pleading guilty merely to
avoid possible execution. Furthermore, Brady's plea was accepted by
a trial judge who manifested some sensitivity to the seriousness of
a guilty plea and questioned Brady at length concerning his guilt
and the voluntariness of the plea before it was finally
accepted.
In view of the foregoing, I concur in the result reached by the
Court in the
Brady case.
[
Footnote 2/1]
The present discussion, while containing occasional references
to the Federal Kidnaping Act, is equally applicable to Parker, for,
as I shall demonstrate in
397 U. S.
there is no pertinent distinction between the Kidnaping Art and the
North Carolina statutes under which Parker was convicted.
[
Footnote 2/2]
The precise contours of the Court's theory, developed
principally in
Brady v. United States, are unclear. The
Court initially states that "the possibility of a heavier sentence
following a guilty verdict after a trial" is one of the "relevant
circumstances" to be taken into account in determining the
voluntariness of the guilty plea.
Ante at
397 U. S. 749.
Subsequently, however, after discussing its notion of
voluntariness, the Court concludes that "a plea of guilty is not
invalid merely because entered to avoid the possibility of a death
penalty."
Ante at
397 U. S. 755. Elsewhere, the Court states that
"there [is no] 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."
Ante at 750750. If the latter is what the Court deems
to be the criterion of voluntariness, the holding is totally
without precedent, for it has never been thought that an
individual's mental state must border on temporary insanity before
his confession or guilty plea can be found "involuntary."
[
Footnote 2/3]
See, e.g., Pennsylvania ex rel. Herman v. Claudy,
350 U. S. 116
(1956);
Chambers v. Florida, 309 U.
S. 227 (1940);
Brown v. Mississippi,
297 U. S. 278
(1936).
[
Footnote 2/4]
See, e.g., Machibroda v. United States, 368 U.
S. 487 (1962); cases cited,
397
U.S. 790fn2/7|>n. 7,
infra.
[
Footnote 2/5]
A further latent ambiguity in the concept of "voluntariness"
arises from the notion that a plea is involuntary only if it is the
product of coercion directly applied to the accused at the time his
plea is entered, and, hence, that a plea cannot be tainted by prior
unconstitutional action on the part of the government. With this
view I am in disagreement for reasons more fully set forth in my
dissenting opinion in
McMann v. Richardson, ante, p.
397 U. S. 775,
decided this day.
[
Footnote 2/6]
See, e.g., Miranda v. Arizona, 384 U.
S. 436 (1966);
Haynes v. Washington,
373 U. S. 503
(1963);
Rogers v. Richmond, 365 U.
S. 534 (1961);
Spano v. New York, 360 U.
S. 315 (1959);
Haley v. Ohio, 332 U.
S. 596 (1948).
[
Footnote 2/7]
See, e.g., Scott v. United States, 135 U.S.App.D.C.
377, 419 F.2d 264 (1969);
United States ex rel. McGrath v.
LaVallee, 319 F.2d 308 (C.A.2d Cir.1963);
Eziere v. United
States, 249 F.2d 293 (C.A. 10th Cir.1957);
United States
ex rel. Elksnis v. Gilligan, 256 F.
Supp. 244 (D.C.S.D.N.Y.1966);
United States v.
Tateo, 214 F.
Supp. 560 (D.C.S.D.N.Y.1963);
Commonwealth v. Evans,
434 Pa. 52, 252 A.2d 689 (1969).
See generally Recent
Development, Judicial Plea Bargaining, 19 Stan.L.Rev. 1082
(1967).
[
Footnote 2/8]
The only alternative to a jury trial available to Parker under
the North Carolina statutes was a plea of guilty. Under the Federal
Kidnaping Act, however, the possibility existed that a defendant
could contest his guilt in a bench trial and simultaneously avoid a
potential death penalty. Nothing more appearing, it is arguable
that an individual who pleaded guilty without seeking a bench trial
did so for reasons other than the fear of the death penalty.
We have previously held, however, that there is no
constitutional right to a bench trial,
Singer v. United
States, 380 U. S. 24
(1965), and, under Fed.Rule Crim.Proc. 23, the consent of both the
trial judge and the prosecution is a prerequisite to the waiver of
a jury trial. In
Brady, the trial judge indicated that he
would not permit the case to be tried without a jury. Thus, in
substance, the choice that confronted Brady -- jury trial or guilty
plea -- was the same that faced Parker.
There is room for argument that a direct confrontation between a
trial judge and the defendant would have more impact upon the
accused than a statute. However, when the accused appears before
the trial judge, he at least has an opportunity to present his
views to the judge, and, if all else fails, to preserve a record
for direct or collateral review of any overreaching by the trial
court.
[
Footnote 2/9]
North Carolina argues that
Jackson ought not to be
applied retroactively so as to affect guilty pleas entered prior to
that decision. In one sense, of course, the
Jackson
retroactivity problem is chimerical, for the longstanding
constitutional requirement that valid guilty pleas be voluntary and
intelligent was not altered by that decision.
However,
Jackson did apply the standard of
voluntariness in a new context by considering the inducement to
plead guilty supplied by an unconstitutional capital punishment
scheme. In a sense, therefore,
Jackson did, in fact,
mandate a new application of the voluntariness test. To the extent
that the retroactivity issue need be resolved, I have no difficulty
in concluding that
Jackson should be so applied as to
provide relief for those who suffered the very constitutional vices
that we condemned in that case. The entry of a guilty plea concerns
the very essence of the guilt-determining process, and, if that
plea is involuntarily induced, the result is "to infect a criminal
proceeding with the clear danger of convicting the innocent."
Tehan v. Shott, 382 U. S. 406,
382 U. S. 416
(1966).
See Johnson v. New Jersey, 384 U.
S. 719,
384 U. S.
727-729 (1966);
Linkletter v. Walker,
381 U. S. 618
(1965).
[
Footnote 2/10]
If this statement means that no plea can be rendered involuntary
by the statutory scheme, it was at least an obscure, not to say
highly misleading, way of saying so.
Laboy v. New
Jersey, 266 F.
Supp. 581 (D.C. N.J.1967), cited in
Jackson, upon
which the Court now seizes, is merely an example of a case that
rejected an attack upon the voluntariness of a plea allegedly
induced by fear of a death penalty. Surely it cannot be relied upon
to establish guidelines with respect to the quantum of proof
necessary to demonstrate the involuntariness of a plea under a
Jackson-defective statute, particularly since the District
Court in
Laboy erroneously concluded, in dicta, that the
Federal Kidnaping Act contained no constitutional infirmity.
[
Footnote 2/11]
See generally Scott v. United States, 135 U.S.App.D.C.
377, 419 F.2d 264 (1969); D. Newman, Conviction, The Determination
of Guilt or Innocence Without Trial (1966); American Bar
Association Project on Standards for Criminal Justice, Pleas of
Guilty §§ 3.1-3.4 (Approved Draft 1968); President's Comm'n on Law
Enforcement & Administration of Justice, The Challenge of Crime
in a Free Society 134-137 (1967); Note, The Unconstitutionality of
Plea Bargaining, 83 Harv.L.Rev. 1387 (1970); Note, Guilty Plea
Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112
U.Pa.L.Rev. 865 (1964).
[
Footnote 2/12]
See generally D. Newman, Conviction, The Determination
of Guilt or Innocence Without Trial 78-104 (1966).
[
Footnote 2/13]
See, e.g., Bailey v. MaDougall, 392 F.2d 155, 158 n. 7
(C.A.4th Cir.),
cert. denied, 393 U. S.
87 (1968):
"Plea bargaining that induces an innocent person to plead guilty
cannot be sanctioned. Negotiation must be limited to the quantum of
punishment for an
admittedly guilty defendant."
(Emphasis added.)
[
Footnote 2/14]
A perceptive commentator, prior to our decision in
Jackson, noted the interrelation of guilty pleas and an
unconstitutional legislatively mandated capital punishment penalty
scheme:
"It is incontrovertible that the [Federal Kidnaping] act
promises a person pleading guilty at least substantial security
from the imposition of capital punishment, while it threatens him
with the ultimate sanction of the law -- death. Cannot the statute
be accurately characterized as containing a
legislative promise
of substantial security from infliction of the death penalty
in the event of a plea of guilty by the defendant? Is there any
legitimate reason why a defendant's guilty plea under the act
should be considered any less the product of coercion because it
was induced by a legislative promise of substantial immunity than
is a guilty plea induced by the previously mentioned judicial
offers of sentencing concessions [in
United States ex rel.
Elksnis v. Gilligan, 256 F.
Supp. 244 (D.C.S.D.N.Y.1966). and
United States v.
Tateo, 214 F.
Supp. 560 (D.C.S.D.N.Y.1963)]? Can it be seriously contended
that statements given by police officers in order to avoid being
discharged from their employment are any more the product of
coercion than is a guilty plea made by a defendant in mortal fear
of the executioner's chair [citing
Garrity v. New Jersey,
385 U. S.
493 (1967)]? In a capital case where a defendant is put
to plea under the Lindbergh Law, he is faced with a choice 'between
the rock and the whirlpool,' [385 U.S. at
385 U. S.
498], and coercion quite probably is inherent in his
choice to waive his right to a jury trial."
Note, United States v. Jackson: The Possible Consequences of
Impairing the Right to Trial by Jury, 22 Rutgers L.Rev. 167,
189-190 (1967). (Emphasis in original.)
[
Footnote 2/15]
Of course, no malevolent intent may be ascribed to the
prosecution in seeking the death penalty prior to its invalidation
in
Jackson. That the death penalty could not have been
exacted in the instant cases is, however, merely a consequence of
the retroactive effect of
Jackson. While the Court denies
that
Jackson affects the validity of guilty pleas, surely
the Court would not insist that a sentence of death pronounced
prior to our decision in
Jackson could now be carried out.
The Court's position, if I have accurately described it, does
contain a certain paradoxical element. That is, any defendant who
resisted the inducements of the
Jackson-defective penalty
scheme, received a jury trial and was sentenced to death, is
presumably entitled to relief. However, the defendant who succumbed
to the unconstitutional influence of that same scheme and pleaded
guilty is left to suffer the consequences of his illicitly induced
plea. While the relaxation of strict logic may be viewed
sympathetically if necessary to prevent executions under an
unconstitutional penalty scheme, I am at a loss to understand what
values are preserved by the curious inversion the Court has brought
about.
[
Footnote 2/16]
The Court apparently takes comfort from the authorities that it
cites for the proposition that a guilty plea entered to avoid a
possible death penalty is not involuntary. (
Ante at
397 U. S.
755-756, n. 14.) This reliance is misplaced. In the
first instance, most of these authorities antedate
Jackson, and therefore were uninstructed by that decision.
For example, it does not appear in those cases whether the capital
punishment scheme was defective under
Jackson or otherwise
unconstitutional. In this discussion, I do not consider the case of
a death penalty scheme that is not unconstitutional under
Jackson.
Secondly, several cases decided subsequently to
Jackson
take the position that a constitutionally defective capital penalty
scheme may impermissibly induce guilty pleas.
See, e.g., Alford
v. North Carolina, 405 F.2d 340 (C.A.4th Cir.1968),
prob.
juris. noted, 394 U.S. 956 (1969), set for reargument,
post, p. 1060;
Quillien v. Leeke, 303 F.
Supp. 698 (D.C. S.C.1969);
Wilson v. United States,
303 F. Supp. 1139 (D.C.W.D. Va.1969);
Shaw v. United
States, 299 F. Supp. 824 (D. C S.D. Ga.1969);
Breland v.
State, 253 S.C. 187,
169 S.E.2d
604 (1969).
See also United States ex rel. Brown v.
LaVallee, 424 F.2d 457 (C.A.2d Cir.1970);
Commonwealth v.
Hargrove, 434 Pa. 393, 254 A.2d 22 (1969).
[
Footnote 2/17]
Sophistic arguments cannot alter the fact that this, in
substance, was the effect of the North Carolina penalty scheme. It
is contended by North Carolina, for example, that, under the state
statutes, the actual penalty imposed upon conviction was death, but
that the jury had the power to mitigate punishment to life
imprisonment. Under the Federal Kidnaping Act, so the argument
goes, the penalty upon conviction was life imprisonment, or a term
of years, but the jury had the power to increase the sentence
beyond that which the trial judge could impose, thereby "usurping
the province of the judge in sentencing the defendant." This is a
distinction without a difference. The simple fact is that, under
both the Kidnaping Act and the North Carolina scheme, the jury
alone, in its unfettered discretion, could impose the death
sentence. In both instances, the defendant was promised by the
legislature complete insulation from this awesome possibility if he
would plead guilty.
[
Footnote 2/18]
See, e.g., State v. Spence, 274 N.C. 536,
164 S.E.2d
593 (1968);
State v. Peele, 274 N.C. 106,
161 S.E.2d
568 (1968).
[
Footnote 2/19]
In view of my position on the
Jackson issue, I need
not, in this case, reach Parker's other contentions, in particular
that his guilty plea was the product of his allegedly coerced
confession. I would direct that Parker's allegations concerning the
coerced confession be considered on remand in proceedings not
inconsistent with my views as expressed in
McMann v.
Richardson, ante, p.
397 U. S. 775,
decided this day.
[
Footnote 2/20]
As previously noted, the trial judge indicated that he would not
permit Brady to be tried without a jury.
See n 8,
supra.