Parker v. North Carolina/Dissent Brennan

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.

In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (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 581, 88 S.Ct., at 1216. 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 if his allegations are substantiated. 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. 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.

* The Court properly notes the grave consequences for a defendant that attach to his plea of guilty; for the 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, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1713, 23 L.Ed.2d 274 (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, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). Accordingly, we have insisted that a guilty plea, like any surrender of fundamental constitutional rights, reflect the unfettered choice of the defendant. See Botkin v. Alabama, supra; Machibroda v. United States 368 U.S. 487, 493, 182 S.Ct. 510, 513, 7 L.Ed.2d 473 (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.

There is some intimation in the Court's opinions in the instant cases that, at least with respect to guilty 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 decision-making process. For example, in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (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 decision-making process. Even though the defendant is not necessarily rendered incapable of rational choice, his guilty plea nonetheless may be invalid.

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.

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, 603, 68 S.Ct. 302, 305, 92 L.Ed. 224 (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. 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 606, 68 S.C., at 307. 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, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). More recently, we held in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (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 8, 84 S.Ct., at 1493. Cf. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).

The Court's answer to the stringent criterion of voluntariness imposed by Bram and subsequent cases is 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. 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. (397 U.S., at 751, 90 S.Ct., at 1470 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 upon a jury trial and has promised a penalty no greater than life imprisonment if he pleads guilty.

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 decisions 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.

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 implied that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.' 390 U.S., at 583, 88 S.Ct., at 1217. 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 courtroom proceedings.' 390 U.S., at 584, 88 S.Ct., at 1217. 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 its unconstitutional effect, the intended 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, those issues are not presently before us.

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. 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. 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 that capital cases are treated differently in some respects from noncapital cases. See, e.g., Williams v. Georgia, 349 U.S. 375, 391, 75 S.Ct. 814, 823, 99 L.Ed. 1161 (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, 78 S.Ct. 221, 2 L.Ed.2d 199 (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 193,      78 S.Ct., at 227.

So, also, in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (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. 372 U.S., at 438-440, 83 S.Ct., at 848-850.

Finally, under our express holding in Jackson, the death penalty in no circumstances could have been constitutionally imposed upon these defendants. If they 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.

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 (90 S.Ct., at 1460, nn. 1, 2), was constitutionally deficient under 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 capital defendant 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. 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 is 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 scheme. 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.

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. 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 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 co-defendant 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.' 404 F.2d 601, 602.

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 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.