Corbitt v. New Jersey – Oral Argument – October 03, 1978

Media for Corbitt v. New Jersey

Audio Transcription for Opinion Announcement – December 11, 1978 in Corbitt v. New Jersey

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Warren E. Burger:

We’ll hear arguments next in Corbitt against New Jersey.

Mr. Smith, you may proceed whenever you’re ready.

James K. Smith, Jr.:

Mr. Chief Justice, may it please the Court.

At issue in the present case are the sentencing provisions of the New Jersey murder statute.

It is our position that that statute penalizes the defendant’s right to jury trial in violation of the Fifth and Sixth Amendments as applied to the states to the Due Process Clause.

It is also our position that that statute violates the Equal Protection Clause of the Fourteenth Amendment by creating a discriminatory classification.

In effect, there are two penalties for the crime of first degree or felony murder in New Jersey depending solely upon whether the defendant has exercise his right to a jury trial.

If the defendant is willing to enter a non vult plea to an indictment for murder then I should stop for the moment and indicate that in New Jersey, we do not allow guilty pleas to the crime of murder.

A defendant must enter a plea of either non vult or nolo contendere both of which are basically the equivalent of a guilty plea.

William H. Rehnquist:

Does it make any difference for our purposes or whatever difference there maybe between non vult and nolo contendere from New Jersey?

James K. Smith, Jr.:

No.

In fact, that the common practices for all pleas to be entered as non vult pleas.

If that defendant enters a non vult plea in a murder case, he maybe sentence either to life imprisonment or to a term of not more than 30 years.

This is true even though the defendant in setting fort a factual basis for his plea may admit that he is committed a felony murder.

The judge is not to make any determination as to the degree of the crime rather the judge has complete discretion to impose any sentence which to him appears appropriate, however, if that same defendant goes to trial on the same facts and is convicted of first degree murder then he must receive the mandatory life sentence and this case of course.

Mr. Corbitt did go to trial in a felony murder case and he was convicted.

Therefore, he had to receive the mandatory life sentence.

Potter Stewart:

As I understand it under your system in New Jersey if a defendant pleads not guilty, he may not waive a jury, is that correct?

James K. Smith, Jr.:

That’s true.

If you —

Potter Stewart:

He cannot have a bench trial on a guilty plea.

James K. Smith, Jr.:

All trials must be jury trials.

That’s correct.

Potter Stewart:

You cannot have a bench trial on a not guilty plea.

That’s correct, isn’t it?

James K. Smith, Jr.:

Yes.

William J. Brennan, Jr.:

Under mandatory life sentence, is he eligible for a parole after a number of years?

James K. Smith, Jr.:

Under the mandatory life sentence, he’s eligible for a parole as I understand it in 14 years, 8 months, and 10 days.

William J. Brennan, Jr.:

Is the usual experience still or this actually more often or not release on a parole at that time?

James K. Smith, Jr.:

I honestly couldn’t say Your Honor.

James K. Smith, Jr.:

I just know that they are eligible for parole at that time.

In any event, it is clear that in this case, Mr. Corbitt as I said went to trial and was convicted of felony murder at this sentencing, his attorney ask the Court to consider imposing a term of years in the state prison as he could have done had Mr. Corbitt enter the non vult plea.

However, the judge indicated that he was powerless to do so.

Therefore, it is clear that simply because Mr. Corbitt was convicted at a jury trial.

He was denied the right to be sentence to a term of years in the state prison.

We submit that this lost of discretion in the sentencing judge or lack of sentencing alternatives is a severe penalty for defendant to pay, simply because he is exercise his constitutional right to a jury trial.

William H. Rehnquist:

Mr. Smith, you cited in your brief our decision last year Bordenkircher against Hayes and this case strikes me as not too much different from the New Jersey legislature is simply enacting in the law but the prosecutor actually did in Bordenkircher.

James K. Smith, Jr.:

Well, I think there’s a clear distinction to be made between this case and in Bordenkircher.

Bordenkircher was dealing with the practice of plea bargaining and this Court held that a defendant who engages in plea bargaining and turns down a plea bargain is not penalize for asserting his rights.

In New Jersey, a defendant who refuses to enter a non vult plea in a murder case but instead goes to trial is penalize for asserting his rights.

William H. Rehnquist:

But it has in the New Jersey legislature just specifies the terms of the plea bargaining in effect?

James K. Smith, Jr.:

The New Jersey legislature as indicated that people who are willing to waive their constitutional rights maybe sentence to almost any term from probation up to life imprisonment.

William H. Rehnquist:

But that’s what the prosecutor did in Bordenkircher, wasn’t it?

James K. Smith, Jr.:

Well, in Bordenkircher, I think the answer to that is simply the prosecutor could’ve proceeded on habitual offender indictment at the very beginning so the defendant was eligible for a sentence of life imprisonment on the day that he was first indited as it were he start paid no penalty because he ultimately was sentence to life imprisonment.

Mr. Corbitt of course, could’ve receive a much lesser sentence had he plead non vult and because he was denied these sentencing alternatives when he was convicted to trial.

He did pay a penalty for exercising his rights.

Potter Stewart:

Well on the other hand that he pleaded not guilty?

James K. Smith, Jr.:

That’s true, Your Honor.

Potter Stewart:

And then — and he could’ve been found not guilty.

James K. Smith, Jr.:

That’s very true.

Potter Stewart:

And if having pleaded non vult, he couldn’t possible have been found not guilty, isn’t that correct?

James K. Smith, Jr.:

That’s very true but I don’t think that factor distinguishes this case from United States versus Jackson on which I rely.

Jackson of course was the appeal of a pretrial motion to dismiss which was granted.

In that case, Mr. Jackson could’ve been acquitted and for that matter he could’ve been found guilty of kidnapping but the jury could’ve recommended a sentence of life imprisonment.

Potter Stewart:

But in the Jackson case, the defendant could’ve pleaded not guilty and a way of the jury trial and the judge other than that statute, the federal statute could not possibly have imposed to their sentence.

James K. Smith, Jr.:

That’s true.

Potter Stewart:

Only the jury could do it.

James K. Smith, Jr.:

And this case is different only in that —

Potter Stewart:

Here he can’t waive with jury trial.

He can’t have it —

James K. Smith, Jr.:

But both trials in murder cases must be jury trials.

But the fact is that in Jackson, this Court held that the risk of the death penalty was in unnecessary burden upon the exercise of the right to jury trial.

And in this case, we submit that it is the risk of this mandatory life sentence which is also an unnecessary burden upon the same right.

Now —

Potter Stewart:

And of course Jackson and all the death sentence which is emphasize by your state’s Supreme Court.

James K. Smith, Jr.:

That’s true.

I was just getting to that.

The state of course claims that Jackson is limited solely to death penalty cases and I think that this contention is at odds with a long line of cases which have come from this court holding that no significant burden maybe place upon the exercise of a constitutional right.

This Court’s analysis has never been limited solely to death penalty cases or even to case involving long terms of imprisonment rather this been held that any sanction which makes assertion of a right costly is forbidden.

And in for example, Garrity versus New Jersey, it was held that a state trooper could not be penalize through lost of his employment because he had asserted is Fifth Amendment Rights.

In Harmon versus Francis, it was held that the filing of a certificate of registration and rule of a poll tax.

It was an impermissible burden upon the right to vote in state elections.

William H. Rehnquist:

There was — but there was certainly a burden in Bordenkircher too, was there not, as a result of the prosecutor’s action?

James K. Smith, Jr.:

Your Honor, I think that we have to face the fact that people who plead guilty whether or not there are plea bargains commonly received lesser sentences on crimes.

However, those people do so freely and knowledgably, they pay — if they refuse to enter that plea of guilty, they will pay no penalty for doing so because when they are sentenced, they are still eligible for any sentence within the statutory range.

Of course, in New Jersey a defendant who refuses to enter this non vult plea must receive the maximum, so his constitutional right is being directly —

William H. Rehnquist:

But then in Bordenkircher, the man was originally charge with something that wasn’t his greatest and it was finally charge with after he refused the plea bargain.

James K. Smith, Jr.:

Well, I think that the opinion in that case knows that rather clearly that the prosecutor could’ve begun from the very first day on habitual offender indictment.

The man fiddle the criteria for that indictment, it was just done in the sort of the reverse of the normal plea bargaining process which is that the prosecutor indicts on a crime and then deals down.

William H. Rehnquist:

Well, but in New Jersey that your client could from the very first day have elected his jury trial and refuse to plead non vult and he did.

James K. Smith, Jr.:

And that’s exactly what he did and for doing that, he paid this penalty.

He was not eligible for this lesser term in the state prison even though the judge has sentenced him might have felt that this sort of sentence was completely warranted.

In any event as I’ve said, I’ve mentioned the lost of employment in Garrity versus New Jersey in the filing of a search —

Byron R. White:

If a man charge with a first degree murder and if he sticks to a not guilty plea, you’ll be trialed by jury.

James K. Smith, Jr.:

That’ true.

Byron R. White:

And his lawyer and the prosecutor talking and becomes clear the prosecutor would end up recommending 20 years if he plead guilty.

James K. Smith, Jr.:

That’s always a possibility.

Byron R. White:

And why isn’t that just the same and in senate to disregard his jury right, where the same burden on it?

James K. Smith, Jr.:

Well, it certainly is an incentive to disregard his jury right.

Byron R. White:

But it’s the same — it seems the same — It’s the same burden in the sense that he’s got and he has to make up his mind about which the alternative, which decorum to jump on.

James K. Smith, Jr.:

Well, I think a distinction has to be made between offering the defendant incentives to give up his constitutional rights and penalizing him if he doesn’t give up those rights.

A defendant who —

Byron R. White:

Well, the prosecutor says I’ll never recommend 20 years if you obviously under this law and I’ll never recommend 20 years if you’d go to trial, that’s your penalty?

James K. Smith, Jr.:

Of course, he must receive the life sentence if he is convicted upon the jury trial.

Now, I’ve discussed these sanctions, the lost of employment and the filing of certificate little poll tax and these are relatively minor sanctions that I think it’s clear that they are the type of sanctions which deter exercise of a constitutional right.

I think that this New Jersey murder statute has the same effect.

A defendant in a first degree murder case is not going to want to exercise his right to a jury trial and face the possibility of a mandatory life sentence when he can plead non vult, admit the crime, and still be eligible for a few years in the state prison or for that matter even a term of probation.

Now, the state of course claims that there is a need for this kind of sentencing provision and that it promotes plea bargaining.

Now, our office is not —

Byron R. White:

And also structures the limits and structures the bargain.

James K. Smith, Jr.:

Well, of course that could be done through any number of other —

Byron R. White:

Well, i grant you but it does that anyway.

James K. Smith, Jr.:

Yes, it does.

Our office is not in anyway opposed to plea bargaining nor do we wish to restrict the practice in any manner.

It is simply —

Warren E. Burger:

You wouldn’t want to do a way with it, would you?

James K. Smith, Jr.:

Certainly not.

It is simply our position that plea bargaining is no way involved in this case.

This statute is not analogist to plea bargaining and it’s certainly not necessary to plea bargaining.

In fact, this appears to be a very unique statute.

I have not been able to find any other criminal statute in the United States which contains separate ranges of penalties for a defendant who is convicted upon a jury trial and a defendant who is convicted upon a guilty plea.

In fact, this is the only New Jersey statute which has separate penalty ranges.

William H. Rehnquist:

But do prosecutors make that kind of offer everyday of the week?

James K. Smith, Jr.:

Certainly, to lesser included the things and that’s —

William H. Rehnquist:

What’s the difference if a prosecutor makes it or if a legislature makes it?

James K. Smith, Jr.:

Well, here we have as I said before.

We have two penalties for the same offense, a person who plea bargain say starts out with an armed robbery case and pleads to robbery by fear is certainly can’t be compared to the person who goes to trial and is convicted of armed robbery.

I’m just comparing Mr. Corbitt’s situation having been convicted of felony murder after jury trial with the position of people who plead non vult to the crime, admit the crime, and are still eligible for much lesser sentence.

Now, as I’ve said —

William H. Rehnquist:

They give up the right to be found not guilty by a jury?

James K. Smith, Jr.:

That’s true.

And Mr. Corbitt insisted upon his rights and for that he received a mandatory penalty.

Thurgood Marshall:

Mr. Smith, what happens in New Jersey if two-thirds of the way through the trial before a jury, he decides to plead guilty?

James K. Smith, Jr.:

He decides to plead non vult in the middle of a trial, he still eligible for either sentence of life imprisonment or a sentence of up to 30 years in the state prison.

Thurgood Marshall:

Does that help for each align?

James K. Smith, Jr.:

I suppose, it would help my argument because I can’t see any distinction between a person who admits his skill halfway through a trial and a person who in fact insist upon his rights all the way and is convicted after the trial.

Thurgood Marshall:

In the party alignment that once it goes into it he is irrevocably stocked with it.

James K. Smith, Jr.:

Well, that doesn’t have to —

Thurgood Marshall:

So, you don’t need that point?

James K. Smith, Jr.:

To be the practice in New Jersey.

In any event, well as I’ve said, this is the only New Jersey statute which has separate penalty ranges.

Yet, we know that plea bargaining works in New Jersey in all other statutes.

It works in robbery cases, in kidnapping cases.

It works for any other crime that one could mention.

There is no reason to believe that this sort of unique sentencing scheme therefore is necessary in anyway to conduct plea bargaining rather it is unnecessary as this Court said in United States versus Jackson, “It is unnecessary and therefore excessive.”

As I’ve indicated previously, the statute is not analogous to the process of plea bargaining.

First of all, as I’ve said before, it’s not a voluntary process and secondly it does not contain the mutuality of advantage which is commonly found in plea bargaining.

The defendant’s aim in a plea bargaining is always to reduce his maximum possible exposure on a crime and there’s of course any number of ways that this can be done.

But a defendant who pleads non vult in New Jersey does not limit his maximum possible exposure for he’s still eligible for the life sentence.

The only thing that defendant achieves by pleading non vult is that he insulates himself from the possibility of the mandatory life sentence which comes upon a jury conviction.

Therefore, we would submit that this murder statute is nothing more than a unilateral penalty imposed upon those persons who have exercised their rights.

I recognize that a defendant in a criminal proceeding is often times called upon to make difficult choices but the threshold question has always been thus compelling an election between two alternatives impair to any appreciable extent the underlying right involved.

And I think I’ve demonstrated that this New Jersey murder statute does in fact deter defendants from exercising their constitutional rights.

In a number of cases, this Court has had the opportunity to consider the concept of vindictiveness.

It is been held that a defendant may not be vindictively penalize for exercising a right and we submit that this is exactly what the New Jersey murder statute does.

It requires that the defendant who insists upon his rights must receive the maximum sentence.

This is no different than a judge that would announce that it’s his policy to impose the maximum sentence on any defendant, who dares come before him in a jury trial and he is convicted.

Thus, as I’ve indicated in the final analysis, this statute unnecessarily deters the right to jury trial while penalizing those defendants who insist upon the rights.

If I may move on to my equal protection argument, as I’ve indicated before, there are two scales of punishment for first degree murder in New Jersey.

This classification is not based in anyway on the personal or penal status of the offender but rather solely upon whether he has exercised his right to a jury trial.

James K. Smith, Jr.:

It does not matter whether the defendant is a young man or an old man or whether he has no prior conviction so as a habitual offender.

Rather the first decision that the sentencing judge must make in this sort of case is whether the defendant has exercise his right to a trial.

If the defendant has been convicted upon a non vult plea, then the judge of course has complete discretion to impose almost any sentence between probation and life imprisonment.

If the defendant has been convicted upon a jury verdict, then the judge has no discretion.

He must impose the maximum sentence even if he feels a lesser sentence is wanted.

William H. Rehnquist:

Will the New Jersey system be constitutionally acceptable in your view, if the statute didn’t require that all not guilty pleas be trialed to a jury but simply require that if there was to be a waiver of a jury, it had to be by both sides?

You know, it’s both the defendant and the prosecution would have to waive the jury.

James K. Smith, Jr.:

Well, if I understand Your Honor’s question correctly.

I would think that there would still be a defect in that and that even if a defendant waive the jury that the — he would still be eligible for a wide range of sentences upon a non vult plea while he would still have to receive the maximum penalty upon a conviction whether it’d be a judge conviction or a jury conviction.

I have no objection to the concept of extending leniency towards those persons who admit their guilt.

But this provides no justification whatsoever for imposing the maximum sentence on a defendant simply because he has exercised his rights to a jury trial.

It maybe that in certain cases, a judge as a matter of his own discretion will feel that a defendant who has admitted his guilt is more emendable to rehabilitation, but it does not logically follow that the defendant who has insisted upon his constitutional rights must be so incorrigible that only the maximum sentence would be appropriate.

In this case, we are simply asking that the defendant having insisted upon his right to a jury trial be eligible for the same range of penalties that he would’ve been admitted his guilt through a non vult plea.

Potter Stewart:

Now, if he pleads not — if he pleads not guilty to a charge and indictment of first degree murder, he can be found not guilty.

He can be found guilty of some lesser included offense of homicide, could he?

James K. Smith, Jr.:

Well, if not in this particular case.

I’ve use the felony murder example in my brief because this was a felony murder case.

Potter Stewart:

This was an arson, it was not a theft.

James K. Smith, Jr.:

Right, it was — if the jury was not charge here with either second degree murder or manslaughter.

If Mr. Corbitt was convicted, it would’ve had been for a felony murder.

If would’ve —

Potter Stewart:

Which is first degree murder in New Jersey, isn’t it?

James K. Smith, Jr.:

Correct.

If we would’ve plead non vult, he also would’ve had to admit if a felony murder —

Potter Stewart:

Yes, but he wouldn’t have been admitting a felony murder.

He wouldn’t have been admitting murder.

James K. Smith, Jr.:

Well, he would’ve said Your Honor, I started the fire and I mean —

Potter Stewart:

Well, but isn’t it — am I not correct as a matter of technical New Jersey law, I just want to be sure I understand your law that when you plead non vult, it’s not to a degree of homicide? It’s just to murder, isn’t that right?

James K. Smith, Jr.:

That’s correct.

Potter Stewart:

General as murder.

James K. Smith, Jr.:

Although —

Potter Stewart:

Is that correct?

James K. Smith, Jr.:

That’s correct.

Although, murder encompasses both first degree murder and second degree murder and —

Potter Stewart:

Yes, but is not guilty of, you’re not pleading non vult to felony murder or the first degree murder?

James K. Smith, Jr.:

No, you’re pleading guilty to non vult to murder and you’re admitting a felony murder or first degree murder.

Potter Stewart:

But the jury found him guilty of felony murder.

James K. Smith, Jr.:

That’s correct.

Potter Stewart:

Had he pleaded non vult and it would not have been to a felony murder, correct?

James K. Smith, Jr.:

No, it would’ve been to —

Potter Stewart:

Murder.

James K. Smith, Jr.:

A non-specified degree of murder but as I’ve indicated before, he obviously and setting for the factual basis for his plea, he would’ve had to admit having committed a felony murder.

Warren E. Burger:

Would you think it’s unconstitutional for a state to require as I think some do every — in a defendant’s murder case to go to trial?

James K. Smith, Jr.:

No, I don’t think that would be anything unconstitutional about that.

I don’t think it’d be a wise legislative policy but —

Warren E. Burger:

Even if it’s accompanied by certain mandatory penalties?

James K. Smith, Jr.:

Well —

Warren E. Burger:

In other words, eliminating all possibility of plea negotiations.

James K. Smith, Jr.:

Like I said, as long as the same range of penalties is available, I don’t see any problem with it.

I certainly think that that would be an unwise legislative policy but of course that’s for the states to decide.

As I’ve said before, simply because Mr. Corbitt here has exercised his right to a jury trial, he was not eligible for a number of valuable sentencing alternatives which of course is a sentence up to 30 years in the state prison.

Therefore, the defendant would submit that he was denied his right to equal protection laws in violation of Fourteenth Amendment.

Mr. Chief Justice, if I many I’d like to reserve five minutes for rebuttal.

Potter Stewart:

Just one — if you’re relying on Jackson, one very clear differences that in Jackson, if a defendant pleaded either guilty of kidnapping with harm to the victim in her state or if he pleaded not guilty with the same offense and waive the jury trial.

He absolutely could not have been sentence to death.

James K. Smith, Jr.:

That’s correct.

Potter Stewart:

Here, if he pleads non vult, he can be sentence to life imprisonment.

The same maximum sentence that a jury could impose.

James K. Smith, Jr.:

That’s true, Your Honor.

I should not however that a maximum – a life sentence upon a jury conviction is not necessarily the same as a life sentence upon a non vult plea and that the life sentence upon a jury conviction of course is mandatory and must be to the state prison.

James K. Smith, Jr.:

A life sentence upon a non vult plea is purely discretionary.

Potter Stewart:

I know, but if —

James K. Smith, Jr.:

It maybe —

Potter Stewart:

but the sentencing judge may imposed it and may send him to the state prison.

James K. Smith, Jr.:

That’s true, but not —

Potter Stewart:

And that makes us different from the Jackson case where there was absolutely no power in the absence of a jury recommendation under the statute to impose the sentence that a jury could’ve recommended.

James K. Smith, Jr.:

That certainly a factual distinction, Your Honor.

I would submit however, that the real question that must be decided in the case like this is, “Does the statutory scheme serve to deter exercise of the constitutional right?”

And I think that this clearly deters defendants from exercising the right to a jury trial and therefore I would submit it’s unconstitutional just as the Federal Kidnapping Act.

Byron R. White:

Mr. Smith, I gather that New Jersey still uses in the murder indictment to your common law form just willfully following mislead of malice support so on and so forth.

It says nothing whatever in the indictment itself that it’s a felony.

James K. Smith, Jr.:

That is correct.

Byron R. White:

And that’s why going back to your answer to my Brother Stewart, that’s why you you’ll say when he pleads.

He doesn’t plead to felony murder.

He pleads to that common law indictment does he?

James K. Smith, Jr.:

That’s correct.

All —

Byron R. White:

And then the fact that it was a felony murder simply comes out in his admission as to the conduct which constituted the offense.

James K. Smith, Jr.:

When he said support the factual basis for a plea where he would have to admit it.

Potter Stewart:

In this case, the jury found your client guilty of what, murder or felony murder?

James K. Smith, Jr.:

Well, that’s interesting.

They found him guilty of murder.

Now, under New Jersey law, they are required to specify either first degree murder or second degree murder.

They did not do that.

They just said murder but of course this was a felony murder case.

There was no instruction given on second degree murder and the assumption of course always was made that he had to receive the mandatory life sentence.

Potter Stewart:

Or could you make assumptions in criminal in cases —

James K. Smith, Jr.:

Well —

Potter Stewart:

— when the jury hasn’t found him guilty or not?

James K. Smith, Jr.:

The situation there was that when, I first got this case after had been accepted by the New Jersey Supreme Court.

James K. Smith, Jr.:

I attempted to raise that same argument but they had granted certification limited to the question of the constitutionality of this statute and they did not choose to hear me on that argument.

Potter Stewart:

So, by hypothesis in this case, he was found guilty of felony murder.

James K. Smith, Jr.:

That’s correct.

Warren E. Burger:

Mr. DeCicco?

John Decicco:

Mr. Chief Justice and may it please the Court.

The issue presented by this case is whether the New Jersey statutory sentencing scheme for murder impermissible infringes upon a defendant’s Fifth and Sixth Amendment rights to trial.

A subsidiary question is whether the statutory scheme at issue deprives an accused of equal protection of he laws.

It is our position that New Jersey’s homicide statute deny in anyway burden those wishing to exercise their Fifth and Sixth Amendment rights to defend against murder charges before a jury nor do our statutes deprive those individuals of equal protection of the laws.

At the outset, we recognize and emphasize that if the sole objective and result of state legislation is to unnecessarily discourage the assertion of constitutional rights then the statutory scheme is patently unconstitutional.

However, this case involves nothing more than a statutory codification of plea bargaining in homicide cases and nothing else.

Even assuming any form of an inducement this Court has held that there is no chilling effect on the exercise of constitutional rights when three criteria have been met.

One, the statutory scheme serves a necessary and legitimate state interest and/or interest to a defendant which is present here.

John Paul Stevens:

Would you explain to me what that interest is?

Is it anything other than the interest in same interest you have in the plea bargaining of course and persuading the defendant not to stand on trial.

John Decicco:

The interest is to conserve scarce traditional and prosecutorial resources.

Secondly, the interest is to facilitate the correctional process with respect for the specific offender.

The interest runs both ways.

John Paul Stevens:

But those are always present when you persuade the defendant not to stand trial aren’t they?

John Decicco:

That is correct and that correct —

John Paul Stevens:

So, then that is still true that the solo thing that this accomplish, tends to accomplish is to persuade to not stand trial and their buy products are there if it works out.

John Decicco:

Well, I wouldn’t characterize it as a sole accomplishment.

It allows him to avoid the readers of life imprisonment.

It allows the defendant to realize his —

John Paul Stevens:

This statute allows him to avoid that?

John Decicco:

Yes, it does.

A non vult provision does.

John Paul Stevens:

He can’t avoid that if he elects to exercise a constitutional right.

John Decicco:

Yes, he might and even avoided there.

Should he be acquitted, should he be convicted of a lesser degree of homicide.

Secondly, if the statutory goals are unobtainable through any other means then this Court has upheld statutory scheme such as the present and third and I think most important is that any inducement —

John Paul Stevens:

Excuse me again, Mr. DeCicco, you say the Court has upheld statutory schemes such as this?

John Decicco:

It has upheld statutory and or Tom law schemes whereby the goals are unobtainable through any other —

John Paul Stevens:

Has it ever upheld a statutory scheme in which the range of penalties for one who stands trial is more severe than the range of penalties for the one who pleads not guilty, who pleads guilty?

John Decicco:

Not an statutory scheme but in Bordenkircher —

John Paul Stevens:

No, it doesn’t upheld statutory scheme?

John Decicco:

No.

Excuse me.

A Bordenkircher have held the prosecutorial and the plea negotiation system whereby the same result was obtained.

In striking the balance with relation to these three components of our equation, it is submitted that the New Jersey homicide statutes are beyond constitutional attack.

Indeed, appellant has failed to demonstrate any measurable incidents of defendants who have been needlessly chilled in their exercise of their Fifth and/or Sixth Amendment rights to trial.

Initially, and considering the extent of any chilling effect purportedly exerted on our homicide statutes reference to the United States versus Jackson is helpful.

There of course, a defendant who proceeded to jury trial would be subject to the death penalty while the defendant who chose any other means of either admitting his guilt or going to trial would be eligible for something less than the death penalty.

The New Jersey statute —

Potter Stewart:

Unless it’s stronger than that, the death penalty could not be imposed on a such defendant.

Could not legally have been imposed a point.

Not everybody is eligible for something less.

John Decicco:

In Jackson, the maximum permitted was greater should he choose to go to trial then the maximum and under the New Jersey statutory scheme.

We think that is significant.

John Paul Stevens:

Why is that different from just changing the minimum and rather that if one case, you can get either 30 days of life imprisonment, the other case, you must get life imprisonment, you have the same maximum.

But are you suggesting there’s no material difference between those choices because the maximum is the same.

John Decicco:

Generally speaking, I would say there is no material difference when you’re speaking of disparity minimum sentences because that is an essence what all plea bargaining is about.

A defendant who chooses not to go to trial generally not always, generally will receive a lesser term of incarceration, i.e. a lesser minimum where is that if the defendant goes to trial may receive a greater term of incarceration.

John Paul Stevens:

That’s true that plea bargaining in general but I don’t see how that supports your notion that as long as the maximums or this maxima are the same and both alternatives.

There is no significant disparity.

I take it, that’s your distinction of Jackson.

John Decicco:

That is one of our distinctions of Jackson, yes.

I would also note that we are dealing here with two different forms of conviction.

A conviction for non vult murder is to a general short form murder indictment in New Jersey some specified as to what in fact the defendant has plead guilty to other than the general category of murder whereas in having been trialed for first degree murder and having been convicted.

There’s a specific designation which the legislature has determined should be penalize by a mandatory term of life imprisonment.

The distinction that we would like to first draw with Jackson is the fact that the death penalty is not present here whereas it was there and in fact it wasn’t.

John Decicco:

It was a greater maximum then under the New Jersey statutory scheme.

This Court has recognized even in Jackson and most recently in United States — in Lockett versus Ohio that the death penalty is qualitatively different from mere imprisonment.

John Paul Stevens:

Mr. DeCicco, if you rely in the death penalty as the distinguishing feature, are you suggesting that it would be impermissible for a prosecutor who would indicted the defendant for obtaining an indictment for a capital offense to offer as an inducement to a plea of guilty that he would waive, he would withdraw the capital charge and substitute a lesser charge.

There was can and — is it permissible plea bargaining to offer — to dismiss a capital charge?

John Decicco:

Yes, I think it would be —

John Paul Stevens:

If it is permissible, then how does that distinguish the Jackson case?

John Decicco:

Because I think that in Jackson and in death generally, whenever we are talking about that, we are talking about the extent of the encouragement.

I believe this Court in Jackson use the freed needless encouragement and what we are trying to do here at this point of the argument is to demonstrate that doing a way with the potential for death does a way greatly if not in fact altogether with the extent of any unnecessary inducement, any chilling effect.

Secondly, and a I’ve already mention more significantly is the fact that a defendant in New Jersey is subject to the same maximum sentence life imprisonment regardless of whether he chooses to go to trial or to plead non vult.

The maximum in Jackson was greater since death was only available for trial rights were asserted.

The argument that has been raise that disparity minimum sentences induce the defendant to forego as Fifth Amendment rights does not take into account are plea bargaining practice in general and in this case specifically the fact that the defendant who does proceed to trial faces various alternatives between conviction of first degree murder, conviction of second degree murder, conviction of manslaughter or acquittal.

The defendant who pleads non vult also has various alternatives confronting him from the term of life imprisonment to anything less.

Considering —

Potter Stewart:

Did this particular defendant face any alternatives other than those of acquittal or conviction of felony murder?

John Decicco:

In this particular case, it was trialed to the jury on a felony murder theory.

Potter Stewart:

And no instructions —

John Decicco:

And there were no other instructions —

Potter Stewart:

Included.

John Decicco:

We can’t — I would not and all I’ll assume any jury nullification in this case either he was going to be convicted or he is going to be acquitted.

Potter Stewart:

And convicted of an offense for which the —

John Decicco:

Felony murder.

Potter Stewart:

Punishment was mandatory life imprisonment.

John Decicco:

Yes, it was, that’s correct.

However had he plead that would not be so.

There will be no designation as to the extent of the crime to which he had pleaded.

Potter Stewart:

Right.

John Paul Stevens:

Mr. DeCicco on your maximum distinction, supposing a statute provided that for reckless driving or speeding, the penalty could be anywhere from a $10.00 fine to a maximum of 30 days in jail.

But if the man likes to stand on trial, the maximum of 30 days in jail must be imposed.

Would you think that was a balance statute?

John Decicco:

I think the statute would be somewhat different from this.

John Paul Stevens:

In what respect, unless severe?

John Decicco:

If I understand your hypothetical — may I — we are talking about a driving offense for which if he pleads guilty he will receive no term of incarceration and if he pleads — if he goes to trial at the municipal level he will —

John Paul Stevens:

Who sets a fine should be up to $5,000.00 —

John Decicco:

Um-huh.

John Paul Stevens:

From $10.00 to $5,000.00 with the judge’s discretion but if he stands trial it’s $5,000.00.

John Decicco:

We have the same maximum.

We —

Warren E. Burger:

Same case as this.

John Decicco:

I think it would be an essence the same case as this.

John Paul Stevens:

And you said that’s perfectly okay?

John Decicco:

Yes.

John Paul Stevens:

Now, it would be different though if the maximum was 30 days in jail instead of $5,000.00?

John Decicco:

Yes, that’s Jackson.

If the maximum is greater then we can —

John Paul Stevens:

No, no, no, out of the maximum in both cases.

It’s from $10.00 fine to a maximum of 30 days in jail and the $10.00 fine to a $5,000.00.

John Decicco:

Sorry, I misunderstood.

John Paul Stevens:

But and in the other case, the 30-day jail is automatically impose if he likes to stand on trial.

John Decicco:

That’s correct.

John Paul Stevens:

And you’d say, how do you —

John Decicco:

It would be the same case.

I misunderstood Your Honor —

John Paul Stevens:

But the same case as this?

John Decicco:

Yes.

John Paul Stevens:

And that — well, how do you say that statute would be all right?

John Decicco:

Yes.

There maybe come a time when statutory scheme is so disparate between the — let us say in your example if it were a 10-day or a 10-year prison term depending upon the choice in that situation —

John Paul Stevens:

Even if —

John Decicco:

As in Jackson where you have the death penalty versus a mere term of years.

Perhaps, you would find a needless encouragement, the extent of the encouragement would be so great as to make this scheme constitutionally defective.

John Paul Stevens:

Even if the maxima is the same — maxima are the same?

John Decicco:

It is possible even if the maxima is same, if there were in great disparity.

John Paul Stevens:

All right.

As soon as you admit that, how do you get out of the box in this case then, what is the

John Decicco:

We’re dealing here between life imprisonment —

John Paul Stevens:

Is the maximum.

John Decicco:

But it’s already been indicated the first parole eligibly —

John Paul Stevens:

And what would’ve been the minimum if he’d pleaded that he taken a plea?

John Decicco:

The minimum could be zero but he could —

John Paul Stevens:

That’s quite a difference range.

John Decicco:

He could get up to 30 years.

John Paul Stevens:

Is that greater or a lesser than the difference I gave to you of $100.00 to 30 days in jail and —

John Decicco:

It’s lesser because in practical terms, a murder defendant pleading guilty will not receive a non-custodial term or a fine merely.

Rather, generally we are bargaining then at that point in time for terms of years, i.e. 25-30 or whatever the case maybe.

Warren E. Burger:

As in the earlier situations with some of the questions are — if he stands trial, he also has the opportunity to get no penalty at all, doesn’t he?

John Decicco:

That’s correct.

He maybe acquit and again I —

Potter Stewart:

Was that with during the Jackson case, wouldn’t it?

John Decicco:

Yes, that was during the Jackson case but again he didn’t face the same, he facing greater maximum —

Potter Stewart:

But that much was during the Jackson case.

John Decicco:

And he will that habitual —

Potter Stewart:

He could’ve been acquitted because we were in that case was — we are not dealing there was a convicted person, we’re we?

There hadn’t been a motion to dismiss and hadn’t the district judge — Judge Timbers, found the whole statute unconstitutional?

John Decicco:

Right.

Potter Stewart:

In the Jackson case.

That might right in my recollection.

John Decicco:

Yes.

Potter Stewart:

Or were we dealing with somebody who’d been convicted by a jury?

John Decicco:

In Jackson?

Potter Stewart:

Yes, in Jackson.

John Decicco:

Well, we’re dealing with someone who was convicted by a jury.

Potter Stewart:

I thought there had been a motion to dismiss the indictment and that the —

John Decicco:

No, he had been convicted —

Potter Stewart:

Did the district judge had found the whole statute unconstitutional?

John Decicco:

He had been convicted by a jury and this Court officiated the death penalty in that case.

Potter Stewart:

The District Court had held the entire statute unconstitutional.

John Decicco:

And this Court that doesn’t help me out —

Potter Stewart:

In Jackson.

John Decicco:

— help me out, yes.

In any event, I think it should be made clear that this Court has held it on various occasions that the Constitution does not forbid every Government who imposed choice in a criminal process that may have the potential of discouraging the exercise of constitutional rights.

While to this point, we have emphasized that the quantum of the encouragement to plead non vult to avoid the potential of life imprisonment is miniscule.

We would also want to emphasize legitimate benefits which are attributable to the New Jersey statutory scheme.

This Court and again I reiterate the plea bargaining theme because I think it’s so very significant in the disposition of this case.

This Court has previously recognized the vitality of the concept to plea bargaining as a necessary component to the criminal justice system.

In most plea bargaining situations, the defendant must determine whether to exercise his right to plead innocent and to receive a possibly or an all probability higher sense or whether to forgo his right to contest his guilt and to receive an all probability a lesser sense.

Thus, plea bargaining has always had as an incidental effect, the discouragement of a defendant’s assertion of his trial rights.

This Court has held that to this imposition of this difficult choice are inevitable attribute of the plea bargaining system and in this regard our statutory system does not in anyway deviate from plea bargaining in general.

The benefits of the non vult statutory scheme in New Jersey are several.

It benefits the defendant involve by permitting him to avoid the expense and hardship of a trial.

It assures the prompt commencement of the correctional process.

Statutory plea bargaining enforce the defendant the possibility of ameliorating the rigors of life imprisonment which is perhaps the most important benefit attributable to the present scheme.

William J. Brennan, Jr.:

And instantly, I gather if he got life after a plea, his eligibility for parole is no different than if he got his mandatory life sentence after that jury.

John Decicco:

And there is absolutely no distinction between the two.

And it must also we emphasize the plea bargaining is predicated upon the concept of those who acknowledge their guilt are in a better position and are better process for rehabilitation and should be given consideration on that account.

From the states’ viewpoint, our statutory scheme for murder conserves scarce traditional and prosecutorial resources.

It also must be recognize that the states interest are serve by our scheme and that the legislature has determine that a conviction for this specific crime of first degree murder should carry a mandatory term of life imprisonment.

In essence, the statutory scheme is a bilateral scheme rather than a unilateral scheme as has been advance here today.

Thurgood Marshall:

Why aren’t they both convictions, the judges convictions and the charged the both convictions?

John Decicco:

Yes, they are.

But two different offenses —

Thurgood Marshall:

But I thought you said that they were different.

John Decicco:

They are.

Thurgood Marshall:

Then one is a conviction and one is not, you’re not saying that are you?

John Decicco:

One is a conviction to murder in general — in general category of murder.

In New Jersey, our murder indictments reflect —

Thurgood Marshall:

But when the other what is won before the judge the non vult?

John Decicco:

That is a conviction of first degree murder specifically.

Potter Stewart:

No, no.

Not the one before the judge —

Thurgood Marshall:

No, sir —

Potter Stewart:

As a result of non vult —

John Decicco:

Oh, I’m sorry, I thought you said before a jury, it’s exactly it’s —

Thurgood Marshall:

But don’t you have to explain to the judge what you did?

John Decicco:

Yes, the factual —

Thurgood Marshall:

And don’t — doesn’t the judge determine whether that’s manslaughter, first degree or its like —

John Decicco:

No.

The judge does —

Thurgood Marshall:

Well, how does the judge determine how much time you’ll get?

John Decicco:

The judge makes his —

Thurgood Marshall:

Be careful what you’re saying now.

The judge gets whatever time he wants.

Now, do you have to determine whether in his own mind doesn’t he?

John Decicco:

The judge would have —

Thurgood Marshall:

Would he give the same time for first degree murder as manslaughter?

John Decicco:

The judge of course would determine the facts of the case these are the gravity and the heinous nature of the crime in determining whether to impose 25 or 30 or 20 —

Thurgood Marshall:

And that’s what I thought.

John Decicco:

Years, yes.

But again we must also take into consider —

Thurgood Marshall:

And would you do that the same if the man just came in and says I want to trial before a judge without a jury. Will the judge do the same thing?

John Decicco:

He can’t have a trial before a —

Thurgood Marshall:

Well, in any of the other 50 states?

John Decicco:

Without a jury.

Thurgood Marshall:

And the other 50 states where he could.

Wouldn’t the judge determine it?

John Decicco:

In the other states, yes.

I would like to emphasize something else Mr. Justice Marshall.

Thurgood Marshall:

You seen part of it did worse me as the distinction that you see that I don’t see.

John Decicco:

What this might help — what I do want to emphasize, and perhaps, I haven’t up to this point is the fact that there is no right upon the part of the defendant to have his non vult plea accepted by the judge at all.

Thurgood Marshall:

Um-huh.

John Decicco:

The judge does it, a discretionary act with the judge.

If he looks at the facts of this case as you’ve indicated for actual basis must be laid in New Jersey otherwise a plea cannot be accepted which is different from the Alfred type situation.

In New Jersey, the factual predicate must be laid.

When the judge sees those facts, he might determine not to accept the plea.

Base upon, let us say the prosecutor recommends 25 years and the judge will think to himself that that just is a little too easy visibly the facts of the case.

Also significant is the fact that in New Jersey under our present statutory scheme, the benefits of it are unavailable, are unobtainable by other means.

Elimination of the mandatory life sentence would nullify the legislative determination that they did.

That is the appropriate penalty for first degree murder.

Abolition of the non vult plea would have a detrimental effect on defendants who wish to acknowledge their guilt and to properly avail themselves of less harsh treatment by immediately commencing the rehabilitation process.

Thus, in our view, the New Jersey statutory scheme does not place an excessive burden or in fact any burden upon a defendants right to plead not guilty.

Moreover, the scheme is justifying necessary and legitimate state needs.

We recognize that no man should receive an additional penalty because he defends against the charge but it does not follow that one who acknowledges his guilt should not be given consideration on that account.

I will now briefly turn to the equal protection argument raised in this case.

It is our view that the equal protection argument does — the issue as to equal protection does not exist in this case.

If there is an unconstitutional compulsion placed upon a defendant’s Fifth and/or Sixth Amendment rights, this case would of course be dispose off on Jackson grounds.

If there is no constitutional impediment then it follows that the equal protection argument would equally be meritless.

We submit that the category in New Jersey at the time where the decision whether to proceed to trial or to plead non vult, the category is the same.

You have one category that is indited murderous and they all have the identical choices.

And so, therefore, there is no equal protection argument at that point in time.

If the appellant argues that the classes do not come into existence subsequent to conviction, which I believe appellant does argue, that also must fall because at that point.

We have two classes, we do not have one but two classes and they are those people who have been convicted of murder and those people who have been convicted of first degree murder for which the legislature determine a life imprisonment penalty and so that under either alternative or theory, the equal protection argument would be non-existing.

John Decicco:

Lastly, even assuming a cognizable class for purposes of the equal protection argument, in our view the argument must fall.

We have it in New Jersey a legitimate and indeed compelling state interest in fostering the statutory scheme which we have mentioned here today.

These are to repeat, amelioration of the rigors of life imprisonment, recognition of the rehabilitative prospects by one going to admit his guilt, the ability to avoid trial, facilitation of plea negotiations, the conservation of scarce judicial and prosecutorial resources, and prompt the position of a punishment of offenders.

Suffice it to say, the benefits included by defendants in the state demonstrate that the equal protection argument is meritless.

Thank you for your attention to our argument.

Warren E. Burger:

Thank you, Mr. DeCicco.

You have about three minutes left, do you have anything further?

James K. Smith, Jr.:

Your Honor, I’d like to make just one quick point that being that a defendant in New Jersey of course cannot plead to the offense of first degree murder.

Pleads are not accepted to either first degree or second degree murder.

Now, the state before the New Jersey Supreme Court made the same argument that basically there was a difference between any conviction for first degree murder and the conviction for murder.

And in New Jersey Supreme Court held then I’m reading from page 33 of the appendix that we do not accept their position as a fully satisfied rebases for meeting the defendant’s argument which it seems to us can and should be dealt with more directly.

I think therefore that the opinion of the New Jersey Supreme Court does not revolve on this matter of statutory construction but it was decided upon the constitutional principles upon the assumption that the person who pleads non vult for murder and admits a felony murder is in fact in the same position as the person who is convicted of a felony murder.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.