# State v. Corbitt

> Supreme Court of New Jersey · October 6, 1977 · 74 N.J. 379

URL: https://www.frixlaw.com/law-library/cases/9758552

## Case

- **Full name:** STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. McARTHUR CORBITT, DEFENDANT-APPELLANT
- **Court:** Supreme Court of New Jersey
- **Decided:** October 6, 1977
- **Citations:** 74 N.J. 379; 378 A.2d 235; 1977 N.J. LEXIS 165
- **Precedential status:** Published
- **Opinion:** Dissent by Pashman
- **Judges:** Conford, Sullivan, Pashman
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by State v. Morales, 224 N.J. Super. 72 (1987).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9758552

## How later opinions describe it (automated extraction)

- recognizing the right “not to incriminate [oneself], as by a plea of guilt (Fifth Amendment) and to have a jury trial should he plead not guilty (Sixth Amendment)” (citing United States v. Jackson, 390 U.S. 570, 583, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968))

## Opinion text

Pashman, J.,
dissenting. The majority today holds that a defendant may be denied the opportunity to receive a reduced sentence solely because he exercised his constitutional right to have his guilt determined by a jury of his peers.' It now holds that a person who stands trial and’ is convicted will receive a mandatory life sentence even though 'that- same-individual might have been eligible for a suspended sentence if he had admitted his guilt and waived his rights.I believe that this decision calls into question some of óur most basic constitutional guarantees, including a -person’s right to a jury trial, Duncan v. Louisiana, 391 U. S. 145 , 88 S. Ct. 1444 , 20 L. Ed. 2d 491 (1968), to confront one’s accusers, Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L. Ed. 2d 923 (1965), to present witnesses in one’s defense, Washington v. Texas, 388 U. S. 14 , 87 S. Ct. 1920 , 18 L. Ed. 2d 1019 (1967), to remain silent, Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L. Ed. 2d 653 (1964), and to-be convicted by proof beyond a reasonable doubt, In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L. Ed. 2d 368 (1970).; The price tag which today’s decision places on the exercise, of such rights stands in stark contrast to the protections which they have traditionally enjoyed. Accordingly, I respectfully dissent.
I
A
The statutory scheme which gives rise to today’s decision makes sentencing of persons charged with murder depend upon whether or not they exercise their constitutional right-to go to trial. The sentencing procedure provides that if a defendant who is indicted for murder exercises his right to go to trial and is convicted of murder in the first degree, *406 he must receive life imprisonment. If he pleads non vuU to the same indictment, he may receive a suspended sentence or any term not exceeding 30 years. State v. Funicello, 60 N. J. 60, 68 (1972).
This unfair result contradicts the numerous cases holding that the sentence imposed on a criminal defendant may not depend upon whether he has exercised his right to trial. United States v. Jackson, 390 U. S. 570 , 88 S. Ct. 1209 , 20 L. Ed. 2d 138 (1968); Pope v. United States, 392 U. S. 651 , 88 S. Ct. 2145 , 20 L. Ed. 2d 1317 (1968); United States v. Derrick, 519 F. 2d 1, 3 (6 Cir. 1975) (“it is improper for a district judge to penalize a defendant for exercising his constitutional right to plead not guilty and go to trial, no matter how overwhelming the evidence of his guilt”); Voyles v. Thorneycroft, 398 F. Supp. 706 (D. Ariz. 1975); People v. Young, 20 Ill. App. 3d 891 , 314 N. E. 2d 280 (1974). In Hess v. United States, 496 F. 2d 936 (8 Cir. 1974), the Eighth Circuit noted that it was joining “a host of other courts in recognizing that whether a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed,” 496 F. 2d at 938 , citing in support of this proposition: United States v. Marzette, 485 F. 2d 207 (8 Cir. 1973); United States v. Stockwell, 472 F. 2d 1186 (9 Cir.), cert. den. 411 U. S. 948 , 93 S. Ct. 1924 , 36 L. Ed. 2d 409 (1973); United States v. Hopkins, 150 U. S. App. D. C. 307, 464 F. 2d 816, 822 (1972); Scott v. United States, 135 U. S. App. D. C. 377, 419 F. 2d 264, 269-74 (1969); Baker v. United States, 412 F. 2d 1069, 1073 (5 Cir. 1969), cert. den. 396 U. S. 1018 , 90 S. Ct. 583 , 24 L. Ed. 2d 509 (1970); United States v. Wiley, 278 F. 2d 500, 504 (7 Cir. 1960). 1
*407 In United States v. Jackson, supra, the United States Supreme Court considered a sentencing scheme similar to the instant one, although admittedly under it the potential consequences of asserting one’s right to trial were substantially more severe. The challenged statute, 18 U. S. C. § 1201 (a), permitted a defendant to be sentenced to the death penalty only upon a jury recommendation of that sanction. Thus, the death penalty could only be imposed where the defendant pleaded not guilty and unsuccessfully exercised his right to a trial. In holding the statute unconstitutional, the Court clearly indicated that any statute which operates to chill the exercise of a defendant’s constitutional rights must be invalidated. Mr. Justice Stewart wrote for the Court:
Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, 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. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.
[ 390 U. S. at 581 , 88 S. Ct. at 1216, 20 L. Ed. 2d at 147; footnote omitted; emphasis added]
Contrary to the notion of today’s majority, the Supreme Court’s decision was not grounded on the theory that a defendant’s rights were “chilled” only in a situation where a conviction by a jury resulted in the mandatory imposition of a more severe penalty than that which could have been imposed upon a plea. The statute involved in Jachson, as well as those in Pope v. United States, supra, and Funicello v. New Jersey, 403 U. S. 948 , 91 S. Ct. 2278 , 29 L. Ed. *408 2d 859 (1971), made it passible for a 'defendant who had been convicted by a jury to receive precisely the same lesser sentence which could have been imposed had he pleaded guilty. Unlike the situation presented in this case with respect to life imprisonment, the death penalty was not the mandatory sentence upon such conviction. Rather, it is obvious that the Court felt that the mere possibility of a more severe sentence resulting from a jury trial chilled a defendant’s exercise of his constitutional rights.
B
The majority, however, argues that the Court’s opinion in Jaclcson is distinguishable for two reasons: (1) the possibility of the death sentence in that case was far more coercive than the threat of life imprisonment involved here, and (2) there the defendant could have received a more severe sentence by going to trial while here he is merely eligible to receive a less severe sentence if he pleads non vult. See ante at 389-391. Despite the acknowledgement that express language in Jackson seems to contradict either attempt at distinguishing the present scheme, the majority apparently embraces the first rationale as a means of circumventing the Jackson result. Id. at 391, quoting with approval, State v. Forcella, 52 N. J. 263, 300-01 (1968) (Jacobs, Hall, J.J., dissenting). See also ante at 399.
This emphasis on the fact that Jaclcson involved a sentencing scheme utilizing the death penalty is the basis of the majority’s untenable assertion that a statute must actually coerce a defendant into pleading guilty in order to be constitutionally defective.
Yet as the majority itself recognizes, see ante at 390, the Court’s opinion in Jackson specifically noted that such coercion was not a necessary element of an impermissible chilling of a defendant’s exercise of his constitutional rights. The court reasoned that
the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. *409 A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus 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.
[ 390 U. S. at 583 , 88 S. Ct. at 1217, 20 L. Ed. 2d at 148; emphasis in original]
Elsewhere in the opinion the Court stated that “Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.” 390 U. S. at 583 , 88 S. Ct. at 1217, 20 L. Ed. 2d at 147.
Additional light is shed on the Court’s meaning in using the phrases “needlessly encourages” or “penalizes the assertion of a constitutional right” by reference to Griffin v. California, 380 U. S. 609 , 85 S. Ct. 1229 , 14 L. Ed. 2d 106 (1965). The Court there held that allowing critical comment at trial concerning the accused’s failure to take the stand in his own defense violated the Fifth Amendment privilege against self-incrimination. In language similar to that used in Jackson , the Court ruled that such conduct amounted to “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” 380 U. S. at 614, 85 S. Ct. at 1232, 14 L. Ed. 2d at 109-10 .
Hence, it is incontrovertible that Jackson and Griffin prohibit any governmental action which “needlessly encourages” a defendant’s waiver of his constitutional rights or makes the assertion of those rights more “costly.” Griffin precludes any argument that such an illegal “encouragement” comes only from the threat of the death penalty, 2 or that the *410 constitutional infirmity would be cured if tbe “penalty” for going to trial could also be imposed upon a plea of non vult. 3 .
Nor are Jaclcson and Griffin aberrations. They are wholly consistent with a line of authority holding that government may not unduly burden the exercise of constitutional rights. This same rationale was expressed by the Court in Malloy v. Hogan, supra, the seminal decision holding that the Fifth Amendment privilege against self-incrimination was applicable to the States through the Fourteenth Amendment. Mr. Justice Brennan, speaking for the Court, concluded that the privilege secures “the right of a person 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 , 12 L. Ed. 2d at 659 . The Court’s opinion reinforces the theme enunciated in Jaclcson — that any needless encouragement to waive one’s constitutional rights is tantamount to unconstitutional penalty:
*411 Under tliis test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was “free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ...”*’** in other words the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed, Haynes v. Washington, 373 U. S. 503 , 83 S. Ct. 1336 , 10 L. Ed. 2d 513 [ 378 U. S. at 7 , 84 S. Ct. at 1493 , 12 L. Ed. 2d at 659 ; citations omitted]
Other decisions cited by the Court in Malloy, supra, support this same unswerving tradition of rigorously assuring that a person’s waiver of his constitutional rights is not tainted by governmental misconduct. But see Smith v. United States, 348 U. S. 147, 150 , 75 S. Ct. 194 , 99 L. Ed. 192, 197 (1954); Ziang Sung Wan v. United States, 266 U. S. 1, 14 , 45 S. Ct. 1 , 69 L. Ed. 131, 148 (1924); Hardy v. United States, 186 U. S. 224, 229 , 22 S. Ct. 889 , 46 L. Ed. 1137, 1140 (1907); Bram v. United States, 168 U. S. 532, 542-43 , 18 S. Ct. 183 , 42 L. Ed. 568, 573 (1897).
G
The only question then is whether the governmental action in the present case “needlessly encourages” a defendant to waive his constitutional rights or makes the assertion of those rights more “costly.” Clearly, this question must be answered in the affirmative, particularly when the present statutory scheme is measured against the evil perceived in Griffin or Haynes v. Washington, supra. Surely the threat here — the heightened possibility of a sentence of life imprisonment after trial • — • would have a far greater effect on a defendant’s decision to waive his rights than either the possibility that a prosecutor will comment adversely on an accused’s failure to testify at trial, as in Griffin, or the refusal to allow a person to speak with his wife until he confessed, as in Haynes .
*412 The present statute is quite similar to the situation addressed by the Court in Scott v. United States, supra. The trial judge had told the defendant there that “[i]f-you had pleaded guilty to this offense, I might have been more lenient with you.” On appeal, Judge Bazelon concluded that “[t]he stark import of this comment [was] that the defendant paid a price for demanding a trial.” 135 U. S. App. D. C. at 382, 419 F. 2d at 269 [footnotes omitted]. After observing that the United States Supreme Court had held that the assertion of Eourth, Eifth and Sixth Amendment rights may not be made more costly by a differential sentencing policy which “exact [s] a price from those who insist upon a trial,” he concluded that such an announced policy taints sentencing with impermissible considerations which make a defendant a “pawn sacrificed to induce other defendants to plead guilty.” 135 U. S. App. D. C. at 383, 385, 419 F. 2d at 270, 272 . See also United States v. McCoy, supra at 743.
The present statute burdens the exercise of a defendant’s rights even more onerously. By formalizing in a statute the disparity between sentences for pleas of not guilty and non vult, the State heightens the possibility that a defendant will be induced to plead to a charge.
D
I find little to persuade me of the merit of the majority’s position in the three cases which it cites: North Carolina v. Alford, 400 U. S. 25 , 91 S. Ct. 160 , 27 L. Ed. 2d 162 (1970); Brady v. United States, 397 U. S. 742 , 90 S. Ct. 1463 , 25 L. Ed. 2d 747 (1970); Parker v. North Carolina, 397 U. S. 790 , 90 S. Ct. 1458 , 25 L. Ed. 2d 785 (1970). These cases addressed only the issue of permissible grounds for withdrawal of a guilty plea which was obtained under an unconstitutional scheme. They are of little help in determining whether a statutory scheme itself is constitutional.
Contrary to the majority’s assumption, these cases do not represent an erosion of the Jackson principle. The basis *413 for the Supreme Court’s opinions in the three cases was foreshadowed in Jackson when the Court stated that
tbe 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.
[ 390 U. S. at 583 , 88 S. Ct. at 1217, 20 L. Ed. 2d at 148; footnote omitted]
Thus, the Court was able to say in Brady v. United States, supra, that Jackson
neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated, that guilty pleas are valid if both “voluntary” and “intelligent.”
[397 U. S. at 747, 90 S. Ct. at 1468, 25 L. Ed. 2d at 756]
In a footnote the Court added that “[t]he requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized.” Id., n. 4. Hence, I do not regard these largely irrelevant cases as an endorsement of our current sentencing plan. They are solely concerned with the standard to be applied when a defendant seeks to withdraw a guilty plea. The Supreme Court has indicated that a more stringent burden applies in' the latter situation than when attacking the constitutionality of a sentence. Such a result is in keeping with the extreme importance which the Court has consistently placed on the finality of a plea. See McMann v. Richardson, 397 U. S. 759, 774 , 90 S. Ct. 1441, 1450 , 25 L. Ed. 2d 763, 775 (1970) (decided the same day as Brady and Parker v. North Carolina) (“interests in maintaining the finality of guilty plea convictions” warrant judging plea under law existing when plea given); Tollett v. Henderson, 411 U. S. 258 , 93 S. Ct. 1602 , 36 L. Ed. 2d 235 (1973) (guilty plea may not be withdrawn although given following an indictment by an unconstitutionally selected grand jury).
*414 Notwithstanding the inapposition of these cases, the majority goes beyond the strict holdings in North Carolina v. Alford, Brady and Parker v. North Carolina and finds comfort in dicta in those eases referring to the propriety of plea negotiations or bargaining. Equating the present sentencing arrangement with other choices a defendant must make in the course of a trial, it concludes that the “needless encouragement” referred to in Jackson only applies to a situation in which the death penalty is involved. See ante at 397.
Contrary to the conclusion which the majority derives from the dicta in this trilogy of eases, I regard their language to be relevant only insofar as it confirms an otherwise obvious conclusion: that inducements which are implicit in the criminal justice system itself provide an insufficient basis for prohibiting guilty pleas in general. Thus, it would be frivolous for a defendant to attempt to withdraw a guilty plea because he was induced to admit his guilt by a desire to appease his conscience, or spare his family the anguish or expense of enduring a trial, or even to convince the sentencing judge that his admission of culpability was indicative of his capacity for being reformed. However, I regard the considerations which must inevitably weigh upon a defendant’s mind under the present sentencing scheme as being fundamentally distinguishable. The heightened possibility of a life sentence exerts a more coercive pressure on a person’s mind than any of the other “inducements” mentioned by the majority. Furthermore, it can in no way be considered necessarily incidental to our system of justice.
I consider plea bargaining to involve entirely distinguishable considerations. Although both the Court’s interpretation of the present statute and a plea bargain involve an inducement in that a defendant can receive a lesser sentence, only the former contemplates imposing a penalty for failing to plead guilty. For instance, it is settled that the State could not induce a plea by threatening that the sentencing judge would decline to consider mitigating circumstances *415 if the defendant refuses to accept a bargain. See generally Santobello v. New York, 404 U. S. 257, 265-66 , 92 S. Ct. 495 , 30 L. Ed. 2d 427, 434-35 (Douglas, J., concurring) (1971); Scott v. United States, supra, 135 U. S. App. D. C. at 387, 419 F. 2d at 274 (court may not “create incentives for guilty pleas [in the bargaining process] by a policy of differential sentences”). Furthermore, where a person rejects a bargain, the State may not use that fact as a ground for preventing him from exercising the right to appeal his sentence on the ground that it was excessive. Cf. State v. Gibson, supra. Yet these are precisely the type of penalties which today’s result mandates. 4
Moreover, it is doubtful whether a court would ever accept a plea bargain under the circumstances created by this scheme. As Mr. Justice Mountain stated in State v. Thomas, 61 N. J. 314 (1972), “[i]f plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides and the results must not disappoint the reasonable ex *416 pectations of either.” 61 N. J. at 321. The necessary corollary of such a holding is that a bargain may be enforced only if the defendant is “fully aware of the direct consequences [of , his plea], including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, . . .” Brady v. United States, supra, 397 U. S. at 756, 90 S. Ct. at 1472 , 35 L. Ed. 2d at 760, quoting approvingly from Shelton v. United States, 246 F. 2d 571, 572, n. 2 (5 Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U. S. 26 , 78 S. Ct. 563 , 2 L. Ed. 2d 579 (1958). See also State v. Gibson, supra, 68 N. J. at 518 (Schreiber, J., concurring). Under today’s holding a defendant who pleads non vult to avoid running the risk of a conviction after trial is not only deprived of the benefit of a reduction in charges, but is told only that he will receive a sentence varying anywhere from probation to life imprisonment. While such a defendant knows that the sentencing judge is now in a position to consider mitigating factors, he cannot be assured of the result of his plea or even of the weight which will be accorded those factors. A defendant in this uncertain position cannot be said to be “fully aware of the direct consequences of his plea.” In fact, contrary to the theory that the sentence in this case can be upheld on the basis of an analogy to plea bargaining, this state of affairs typifies the “pleading in the dark” which has led various courts to place stricter limits on the bargaining process. 5 See Gallagher, “Judicial Participation in Plea Bargaining: A Search for New Standards,” 9 Harv. Civ. Rights-Civ. Lib. L. Rev. 29, 33 (1974).
I believe that plea bargains serve certain legitimate functions which distinguish them from sentencing under the *417 scheme in question. Such negotiations allow a .prosecutor to offer leniency in exchange for assistance or testimony which is necessary in other cases, State v. Taylor, 49 N. J. 440, 455 (1967), and enable him to fully carry out the charging function vested in his office. Cf. State v. Leonardis, 73 N. J. 360, 379, n. 9 (1977). On the other hand, the statute in question appears to have the single purpose of encouraging people to plead non vult. Such a purpose is impermissible under our Constitution, and I would thus hold that this scheme is unconstitutional. I believe that we are bound in this regard by the United States Supreme Court’s mandate in Jacleson that if a “provision [has] no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.” 390 U. S. at 581 , 88 S. Ct. at 1216, 20 L. Ed. 2d at 147.
II
My conclusion that this scheme has only one purpose — to chill the assertion of an accused’s constitutional rights — impels me to conclude that it is also violative of defendant’s right to equal protection of the laws under the Fourteenth Amendment. Even if the majority is correct in assuming that a sentencing scheme which provides for disparate sentencing may he upheld merely upon a showing of its rational relationship to some legitimate state object, 6 I fail to see any legitimate state purpose served by this plan.
*418 The requirement that any legislative enactment must serve some legitimate state objective has been stated throughout the opinions of this Court and the United States Supreme Court. See, e. g., Dunn v. Blumstein, 405 U. S. 330 , 92 S. Ct. 995 , 31 L. Ed. 2d 274 (1972); Lindsey v. Normet, 405 U. S. 56, 70 , 92 S. Ct. 862 , 31 L. Ed. 2d 36, 48 (1972); State v. Fearick, 69 N. J. 32, 38 (1976); State v. Smith, 58 N. J. 202, 207 (1971).
The first reason propounded by the majority for upholding the present scheme is, in its words, the
humane and rehabilitative one of ameliorating the rigor of life imprisonment for those offenders who are willing to acknowledge their crime.
[Ante at 402]
Such an exercise in circular logic tells us nothing. If the sole reason for offering a reduced sentence is that it serves humanitarian and rehabilitative functions, there is no reason why these same goals would not apply with equal force to defendants who choose, as they are constitutionally entitled, to have their guilt determined by a judge and jury. As eloquently stated by Judge Bazelon in Scott, supra:
Kepentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial. The adversary process is a fact-finding engine, not a drama of contrition in which a prejudged defendant is expected to knit up his lacerated bonds to society.
There is a tension between the right of the accused to assert his innocence and the interest of society in his repentance. But we could consider resolving this conflict in favor of the latter interest only if the trial offered an unparalleled opportunity to test the repentance of the accused. It does not. There is other, and better, evidence of such repentance. The sort of information collected in presentence reports provides a far more finely brushed portrait of the man than do a few hours or days at trial. And the offender while *419 on probation or in prison after trial can demonstrate his insight into his problems far better than at trial.
If the defendant were unaware that a proper display of remorse might affect his sentence, his willingness to admit the crime might offer the sentencing judge some guidance. But with the inducement of a lighter sentence dangled before him, the sincerity of any cries of mm culpa becomes questionable. Moreover, the refusal of a defendant to plead guilty is not necessarily indicative of a lack of repentance. A man may regret his crime but wish desperately to avoid the stigma of a criminal conviction.
[135 U. S. App. D. C. at 383, 384, 419 F. 2d at 270-1 ; footnote omitted]
The second reason offered by the majority for upholding the scheme is its asserted promotion of “flexibility and efficiency as well as justice in criminal justice administration.” The third reason is simply a restatement of this: the conservation of “scarce judicial and prosecutorial resources for those cases which properly require trial.” Taken together, these statements may be read to mean that our basic constitutional rights are not worth the time that we spend on them, and that a case is not really worth trying unless a defendant is willing to test his innocence against the possibility of a stiffer sentence if he is found guilty. Using the risk of life imprisonment as an incentive to ensure a vigorous trial contest seems unduly harsh at best and rather atavistic at worst. I can only conclude that the goals cited in support of the sentencing scheme fail to provide a legitimate state objective. They merely provide a pretext for further eroding our constitutional guarantees, an end which I regard as wholly illegitimate.
The final justification which the majority offers in support of the scheme is that it results in “prompter imposition of punishment on acknowledged offenders.” Yet the folly in this bit of logic is that by upholding the scheme, we risk coercing a person into becoming an “acknowledged offender.” While I am certainly in favor of reducing delays in our criminal justice system, I do not believe that we have a legitimate interest in discouraging persons from going to trial in order to be able to impose punishment more quickly.
*420 in
In spite of our long held beliefs that the constitutional guarantees associated with the right to a trial were available to all persons, we are now told that only those who are confident of victory should dare assert that right by going to trial. The possibility of a mandatory life sentence, with no hope for relief on appeal, will surely sober any defendant who naively believes, as a result of a fair reading of the Bill of Rights, that he was free to exercise unfettered discretion in determining whether to demand that the. State prove his guilt before a judge and jury.
This unfortunate result conflicts with an unbroken line of cases by the United States Supreme Court striking down governmental attempts to induce a person to waive his rights. In one stroke of the judicial pen the majority emasculates that Court’s decisions in Jaclcson and Griffin, and undermines the firm foundation upon which those holdings rested. Thus I regard today’s decision as a significant break with precedents of the Supreme Court setting forth minimum standards for protecting the important constitutional guarantees involved in this decision.
Finally, I note that the constitutional safeguards involved in this case — the right to a jury of one’s peers, to confront one’s accusers, to present witnesses in one’s defense, to remain silent, and to have the State prove one’s guilt beyond a reasonable doubt — are the virtual touchstones of the American criminal trial. By discouraging defendants from availing themselves of the protections which our Constitution offers, we undermine the basic values which form the core of our democratic system.
I respectfuly dissent. The life sentence imposed on the defendant should be vacated. I would remand to the trial court for resentencing in accordance with this opinion.
For affirmance — Chief Justice Hughes, Justices Mountain, Clifford and Schreiber and Judge Conford — 5.
For remandment — Justices Sullivan and Pashman — 2.
This principle is not foreign to our own Court. The statement was made in State v. De Stasio, 49 N. J. 247, 259 (1967), cert. den. 389 U. S. 830 , 88 S. Ct. 96 , 19 L. Ed. 2d 89 (1967), that “a sentence may not be increased because a defendant defended against *407 the charge. . . .” It was also repeated approvingly in State v. Gibson, 68 N. J. 499, 510 (1975) and State v. Poteet, 61 N. J. 493, 496 (1972), habeas corpus granted sub nom. Poteet v. Fauver, 517 F. 2d 393 (3 Cir. 1975).
In United States v. McCoy, 139 U. S. App. D. C. 60, 429 F. 2d 739 (1970) the Court applied the Jaelcson principle to a penalty of life imprisonment. At sentencing, the trial judge had informed the defendant that “anyone else who was convicted by a jury before me of Armed Robbery would receive a life sentence.” 139 U. S. App. D. C. at 64, 429 F. 2d at 743 . Although reversing the conviction on *410 other grounds, the Court noted that despite the defendant’s lack of awareness of this judicial policy when he elected to exercise his right to trial,
‘[the] inevitable effect of any such provision is * * * 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.’ United States v. Jackson, 390 U. S. 570, 581 , 88 S. Ct. 1209, 1216 , 20 L. Ed. 2d 138 (1968) (footnote omitted.)
[Id. at 743]
The majority concludes that Jaokson emphasized the fact that the only way to avoid the “penalty” was by waiving one’s right to go to trial. See ante at 388. Thus, it would hold that since a defendant may receive a life sentence under the present scheme, whether or not he goes to trial, there is no constitutional impediment. However, this reasoning substitutes for the Supreme Court’s clear-cut test — whether or not the scheme “needlessly encourages” guilty pleas — a new hyper-technical distinction. As X have already stated, under several statutes which the Supreme Court struck down, a defendant could receive the same sentence whether or not he pleaded guilty. I see no reason to conclude that the instant statute is any less of an encouragement to plead non vult than any of those. See United States v. McCoy, supra.
One commentary has noted that
courts appear to make the distinction that a defendant cannot be forced to pay for exercising a constitutionally granted right, yet he cannot be heard to complain if he voluntarily receives a concession for waiving the right. If the accused is exposed to a greater risk for asserting a right, then he is being encouraged not to exercise his legal and constitutional prerogatives and is possibly deprived of the ability to freely weigh the alternatives. Nevertheless, the decision to plead guilty to a lesser sentence and avoid the risk of either a conviction on more serious charges or a more severe sentence is held voluntary.
[Note, “The Legitimation of Plea Bargaining : Remedies for Broken Promises,” 11 The American Criminal Law Review 771, 777 (1973) ; footnotes omitted; emphasis in original]
It then went on to apply this reasoning, concluding that this distinction explains the “contrasting judicial treatment of differential sentencing and plea bargaining. Differential sentencing is generally unacceptable : any announced judicial policy whereby a defendant who is convicted by trial will be sentenced more harshly than if he pleads guilty, is a denial of due process of law.” Id.
Any such holding would render ludicrous the corollary requirement that the terms of a bargain be carried out. Santobello v. New York, supra; State v. Brown, 71 N. J. 578 (1976) ; State v. Jones, 66 N. J. 524, 525-26 (1975).
Recently this Court held thaUa scheme which results in disparate sentencing is inherently suspect and must be supported by a compelling state interest. Mr. Justice Sullivan wrote for a unanimous Court in State v. Chambers, 63 N. J. 287 (1973) :
Generally, legislative selection of a class for special treatment can be justified where there is some rational basis between the classification and the object sought to be achieved. However, certain classifications by their very nature are inherently suspect and will be subjected to close judicial scrutiny as to whether a fundamental constitutional right is being impaired. * * *
[63 N. J. at 295-96]
*418 In striking down a disparate sentencing scheme based solely upon sex, the Court noted that it was concerned in that ease with “confinement in a penal institution — a restraint on one’s liberty, one of the most basic human rights.” Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758552. Public record. Not legal advice.