motion to dismiss — Corbitt v. New Jersey

:

Supreme Court s te a het States, c: ee

Octoser Term, 1977 ae oes:

No. 77-5903

McARTHUR CORBITT,

Appellant,

v.

THE STATE OF NEW JERSEY,

Appellee.

On Appeal from the Supreme Court of New Jersey

MOTION TO DISMISS

Joun J. DEGNAN,

Attorney General of New Jersey,

Attorney for Appellee.

Leonarp D. Ronco,

Acting Essex County Prosecutor,

Essex County Courts Building,

Newark, New Jersey, 07102. n

(201) 961-7470 |

Maro J. Frrepman,

Deputy Attorney General,

Of Counsel and on the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

EE ee Le Oe a NE RT NL, Ee ae eT ee Oe ee ee

TABLE OF CONTENTS

PAGE

I—The state statute involved and the nature of

the case

I ili elena ciilaseinainieleniocnmiehinn

B. The proceedings below

II—The case presents no substantial question not

previously decided by this Court Pd AB teed 4

4 A. The sentencing provisions of N.J.S.A. 2A:

113-3 and N.J.S.A. 2A:113-4 do not place

an unconstitutional burden upon a defend-

ant’s right to contest his guilt before a

jury 4

1. No penalty is imposed upon one who

chooses to defend against a murder

charge

or

2. United States v. Jackson applies only

where the death penalty is a considera-

tion in the decision to defend against

a charge or plead guilty ......................... 12

3. No needless ror unnecessary burden is

placed upon a defendant who chooses

to contest his guilt .. ie 16

B. The sentencing scheme of N.J.S.A. 2A :113-

3 and N.J.S.A. 2A:113-4 does not constitute

a violation of—a_defendant’s right to equal

eee CRED A 20

ii TABLE OF CONTENTS

-*

PAGE

1. There is no cognizable class against

which equal protection is being denied .. 22

Assuming a cognizable class, there is no

disparity of punishment for the same of-

fense 23

3. The penalty provisions of N.J.S.A. 2A:

113-3 and N.J.S.A. 2A:1134 are not ap-

bo

plied arbitrarily nor irrationally .............. 27

I1I—Conc.usion 30

Cases Cited

Brady v. United States, 397 U.S. 742 (1970) ............ 6, 18

Chaffin v. Stynchcombe, 412 U.S. 17 (1978) ................ 6, 14

Clark v. Paul Gray, 306 U.S. 583 (1939) 27

Colten v. Kentucky, 407 U.S. 104 (1972) 6

Commonwealth v. O’Neal, 339 N.E. 2d 676 (Mass.

RIPE ‘ssusccsesesctinipeseaiinbiseeacundgpstiemndsiiailiiianleatiaesad anions 13

Crampton v. Ohio, 402 U.S. 103 (1971) .-......22222......... 13, 14

Dunn v. Blumstein, 405 U.S. 330 (1972) —....2022... 6, 28

Eisenstadt v. Baird, 405 U.S. 438 (1972) 2000... 27

Fay v. Noia, 372 U.S. 391 (1963) eccsesnccneceenee 13

Frontiero v. Richardson, 411 U.S. 677 (1973) -.-.... 28

Fuller v. Oregon, 417 U.S. 40 (1974) 15

Funicello v. New Jersey, 403 U.S. 948 (1971) ssbiak ia 2,10

Furman v. Georgia, 408 U.S. 238 (1972) -............ 12,13

Gardner v. Broderick, 392 U.S. 273 (1968) .................. 6

TABLE OF CONTENTS lii

PAGE

Garrity v. New Jersey, 385 U.S. 493 (1967) 00.0... 6

Gregg v. Georgia, —— U.S. ——, 96 S.Ct. 2909

(1976) .... a 12

Griffin v. California, 380 U.S. 609 (1965) 00... 6

Griffin v. Illinois, 351 U.S. 12 (1956) ou 22

Hess v. United States, 496 F.2d 936 (8 Cir. 1974) 6

Kahn v. Shevin, 416 U.S. 351 (1974) ... 29

Lefkowitz v. Turley, 414 U.S. 70 (1973)

Malloy v. Hogan, 378 U.S. 1 (1964)

McDonald v. Board of Election Commissioners, 394

Riel EEE MITEEPD: snpustaaiesiidiniahdaipientinbleentiabasnataibilen 27

McDonald vy. State, 501 F.2d 385 (8 Cir. 1974), cert.

den. 419 U.S. 1004 (1974) 29

McGautha v. California, 402 U.S. 183 (1971) 00.0... 6,7

MeMann v. Richardson, 397 U.S. 759 (1970) ................ 6

Newman v. United States, 127 U.S. App. D.C. 263,

382 F.2d 479 (1967) ..... 25

North Carolina v. Alford, 400 U.S. 25 (1970) 000... 18

Parker v. North Carolina, 397 U.S. 790 (1970) ........ 18

People v. Peters, 32 Ill. App. 3d 1018, 337 N.E.2d

73 (Ill. App. Ct. 1975) 15

Reed vy. Reed, 404 U.S. 71 (1971) 28

Rinaldi v. Yeager, 384 U.S. 305 (1966) 29

Roberts v. Louisiana, —— U. S. ——, 96 S.Ct. 3001

(1976) ‘ 12

iv TABLE OF CONTENTS

PAGE

San Antonio Independent School District v. Rod-

whermam, G22. TED. 2 CEBTED . crcccsnseereccasnseinscininrennsninencnnentie 29

Santobello v. New York, 404 U.S, 257 (1971) ............. 18

Scott v. United States, 419 F.2d 264 (D.C. Cir.

WD. ccccnccsnynsnsisinnsesasiihctacannsiiivitecimasiinataldaldaiiainiiaiiibiabidn 20

Shapiro v. Thompson, 394 U.S. 618 (1969) sniitihabiiasianiain 28

Spevack v. Klein, 385 U.S. 511 (1967)... 6

State v. Chambers, 63 N.J. 287, 307 A.2d 78 (1973) 28

State v. Coleord, 170 Minn, 502, 212 N.W. 894 (1927) 29

State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968),

cert. den. sub nom. New Jersey v. Presha, 408

CE, DER CIGD cetinnsstnietinninticsannininniiaamitdina| 8-10, 19, 26

State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1972),

cert. den. sub nom. New Jersey v. Presha, 408

of Se Fe. ane cee ee 2, 4, 10

State v. Howland, 103 Ariz. 250, 489 P.2d 821 (1968) 29

State v. MeArthur Corbitt, 74 N.J. 379, 378 A.2d

OT | a | hh

State v. Poteet, 61 N.J. 493, 295 A.2d 857 (1972) ...... 20

State v. Reali, 26 N.J. 222, 1389 A.2d 300 (1958) ...... 19

State v. Robinson, 139 N.J. Super. 58, 352 A.2d 587

(App. Div. 1975) ............ sonication 4

State v. Sullivan, 43 N.J. 209, 203 A.2d 177 (1964),

cert. den. 362 U.S. 990 (19066) ........:..ececcccsvssesesanessseres 24, 26

State v. Williams, 39 N.J. 471, 189 A.2d 193 (1963),

oort, Gam, BIG Wis. GED CED ccccsaccnassascssvisnsncehensicnits 24

TABLE OF VONTENTS Vv

PAGE

Thomas v. United States, 368 F.2d 941 (5 Cir. 1966) 20

Uniform Sanitation Men v. Sanitation Comm’r., 392

Woes SE CRIED ccnccsnasecpnencevenninses Ye. 2

United States v. Andrews, 370 F.Supp. 365 (D.

Conn. 1974) 26

United States v. Berrigan, 482 F.2d 171 (3 Cir.

1973) —

United States v. Coke, 404 F.2d 836 (2 Cir. 1968) ...... 13

United States v. Derrick, 519 F.2d 1 (6 Cir. 1975) 6

United States v. Eisenmann, 396 F.2d 565 (2 Cir.

SISTED siicnseshanslicsstamsiabdiniiebpaieieeentaidbiaaleniidadbiahimi eth ian 26

United States v. Jackson, 390 U.S. 570 (1968) ...... 5, 6, 8-17

United States v. Maryland Savings-Share Ins. Corp.,

400 U.S. 4 (1970) 27

United States v. Rugiero, 472 F.2d 599 (2 Cir.

1973), cert. den. 412 U.S. 989 (1973) ceecccccccceccceeen 26

Whaley v. State, 202 Kan. 175, 446 P.2d 397 (1968) 15

Williams v. Florida, 399 U.S. 78 (1970) 2.022.022.2000

Woodson v. North Carolina, —— U.S. ——, 96 S.

Ct. 2978 (1976) ie 12

United States Constitution Cited

Fifth Amendment .... vs 8-6, 9, 10, 14-17, 19

Sixth Amendment . ade 3-5, 9, 10, 15, 16, 19

Eighth Amendment .............. eaaplaaialisadiiiestietnidnhacnes 12

ae 3

vi TABLE OF CONTENTS

PAGE

Statutes Cited

Wear: TA BA acannon cemnncscccconnest 8,9, 16

es TN eine tensntidiecntseennentinminciitaninn eee rere 2,3

Be RII agichetcepsise acest Leignnincitencctittvniennindintegenaaianti 2

en IE III” | Ginoessintcnnseenttiniestascsdsnnbsnietwresin 2-4, 11, 20, 27, 30

ae ic. Tes CE picctediseveicnsetpstscntsvcensansiivies 2-4, 11, 20, 27, 30

PE i UTI scecinitateig tcecanstpedséneiapbtaildancliniidiandcelioan 11

18 U.S.C.:

Ns VIER cchcctsctessntanonnvastoans slssaidiainieaidilaanbeaiasons 8

Other Authorities Cited

Comment, 22 Rutgers L. Rev. 167 (1967) -.....0.0.00..... 17

Comment, 44 N.Y.U. L. Rev. 612 (1969) —W0002 17

Comment, 47 N.C. L. Rev. 421 (1969) .......................... 17

Comment, 54 Cornell L. Rev. 448 (1969) —000000... 17

Comment, 1969 Wash. U.L.Q. 231 (1969) .................... 17

Note, “Another Look at Unconstitutional Conditions,”

SEF i ees AGB CD sracenstccsoiniintctieentilenmetasediase 6

Note, “Developments in the Law: Equal Protection,”

82 Harv. L. Rev. 1065, 1077-1081 ......0....... ee eeeeoee 22

Note, “Discriminatory Sentencing and the Unitary

Trial: Two Areas For Application of the United

States v. Jackson Rationale,” 31 U. Pitt. L. Rev.

BRB (OIE) citctrnen shelbibspiadeaatibianeismaiataeiouateansbanas titi 17

Note, “The Unconstitutionality of Plea Bargaining,”

ee Se as RN BRE RIND mesecestatsacsinhptcintiies -ctpisinn 17

TABLE OF CONTENTS Vil

PAGE

Poe, “Capital Punishment Statutes in the Wake of

United States v. Jackson: Some Unresolved Ques-

tions,” 37 Geo. Wash. L. Rev. 719 (1969) .............. 17

“The Supreme Court, 1967 Term,” 82 Harv. L. Rev.

a See GRP D seiccensicdsicnccatemnenasancatees 17

Tussman and Ten broek, “The Equal Protection

of the Laws,” 37 Calif. L. Rev. 341, 344-346, 348

(1949) 22

IN THE

Suprene Court of the United States

Octoser TERM, 1977

No. 77-5903

»™

wa

McARTHUR CORBITT,

Appellant,

Vv.

THE STATE OF NEW JERSEY,

Appellee.

On Appeal from the Supreme Court of New Jersey

=

—

MOTION TO DISMISS

The Appellee moves the Court to dismiss the appeal

herein on the ground that it is manifest that the ques-

tions on which the decision of the cause depends are so

unsubstantial as not to need further argument.

The state statute involved and the nature of the

case.

A. The Statute

This matter involves the constitutiouality of the sentenc-

ing scheme of the New Jersey murder statutes, N.J.S.A.

2A :113-1, 2, 3, and 4, as judicially altered in State v.

Funicello, 60 N.J. 60, 286 A.2d 55 (1972), cert. den. sub

nom. New Jersey v. Presha, 408 U.S. 942 (1972). As

modified by the New Jersey Supreme Court, N.J.S.A.

2A :113-3 now provides that no plea of guilty shall be

received upon any indictment for murder. If such a plea

is offered, it must be disregarded, a plea of not guilty

must be entered, and a jury duly impaneled must try the

ease. The statute permits, however, the accused to plead

non vult or nolo contendere to the indictment. Upon such

a plea, the sentence to be imposed is either life imprison-

ment or, in the alternative, the same as that imposed

upon a conviction of second degree murder.

N.J.S.A. 2A :113-4 provides that every person convicted

of first degree murder shall be sentenced to life impricon-

ment.' Upon a conviction of second degree murder, an

accused is to be imprisoned for a maximum of thirty

years. Thus, one convicted of first degree murder by a

jury must receive a life sentence while one pleading non

vult or nolo contendere may receive a sentence having a

maximum of thirty years or life imprisonment.

1Prior to Funicello v. New Jersey, 403 U.S. 948 (1971), and

State v. Funicello, supra, 60 N.J. 60 (1972), a jury conviction of

first degree murder mandated the imposition of the death penalty

unless the jury recommended life imprisonment.

B. The proceedings below

The appellant, McArthur Corbitt, was convicted by a

jury on April 10, 1973, of felony murder pursuant to

N.J.S.A. 2A:113-1. On May 16, 1973, the mandatory

sentence of life imprisonment was imposed. A Notice

of Appeal to the Superior Court of New Jersey, Appel-

late Division, was filed on July 31, 1973.

On September 23, 1975, the Superior Court, Appellate

Division, affirmed the conviction of felony-murder. A

subsequent Petition for Certification to the Appellate Divi-

sion was filed in the New Jersey Supreme Court and

was granted on February 18, 1976. The certification was

“limited to the question of the validity of the mandatory

life sentence upon a jury conviction for murder... .”

The appellant argued before the New Jersey Supreme

Court that the sentencing scheme of N.J.S.A. 2A:113-3

and N.J.S.A. 2A:113-4 infringed upon his Fifth Amend-

ment right not to plead guilty and his Sixth Amendment

right to a jury trial, and deprived him of equal protec-

tion under the Fourteenth Amendment. The New Jersey

Supreme Court found the sentencing scheme to be consti-

tutional and affirmed the conviction. State v. McArthur

Corbitt, 74 N.J. 379, 378 A.2d 235 (1977). A Notice of

Appeal to this Court was filed in the New Jersey Supreme

Court on November 30, 1977.

4

The case presents no substantial question not pre-

viously decided by this Court.

A. The sentencing provisions of N.J.S.A. 2A:113-3 and

N.J.S.A. 2A:113-4 do not place an unconstitutional

burden upon a defendant’s right to contest his guilt

before a jury.

The Appellant, McArthur Corbitt, was convicted by a

jury of felony-murder. Consequently, the trial court im-

posed the mandatory sentence of life imprisonment. See

N.J.S.A. 2A :113-4; State v. Funicello, 60 N.J. 60, 286 A.2d

55, cert. den. sub nom. New Jersey v. Presha, 408 U.S.

942 (1972) ; State v. Robson, 139 N.J. Super. 58, 352 A.2d

587 (App. Div. 1975). Had he chusen to plead non vult

to the indictment, and had the court accepted the plea, he

ciearly would have been eligible for a less harsh sentence.

See N.J.S.A. 2A:113-3 and N.J.S.A. 2A:113-4. Although

after pleading non vult a defendant may be sentenced to

life imprisonment, the New Jersey Statutes specifically au-

thorize the trial court to impose a lesser sentence not to

exceed thirty years. At issue is whether the possibility of

receiving a “lesser term’ by entering a plea of non vult

unnecessarily exacts a penalty with regard to an accused’s

assertion of his Fifth Amendment right to plead not guilty

and his Sixth Amendment right to a jury trial.

It is the position of the State of New Jersey that the

sentencing scheme of its murder statutes does not need-

lessly chill assertion of those rights guaranteed by the

Fifth and Sixth Amendments, nor does it penalize those

who elect to contest their guilt before a jury. The penalty

of life imprisonment is not contingent upon an accused’s

decision to defend against the charges which have been

brought. Similarly, a plea of non vult does not assure a

Se

lesser sentence than that mandated following a conviction

of first degree murder by a jury. Hence, the statutes im-

pose no burden on the exercise of an accused’s constitu-

tional rights.

Even if it is assumed that a burden is imposed, it can

hardly be said that a defendant is “needlessly” penalized

by virtue of his election not to plead non vult. In short,

such a burden, if one exists, is inconsequential and, in any

event, is reasonably related to a proper governmental

goal. While it is true that no man should be subject to

an enhanced penalty because he defends against a charge,

it does not follow that an accused who frankly acknowl-

edges his guilt should not be given consideration on that

account. The concept that one who confesses is a better

prospect for rehabilitation has long been accepted by our

courts. Further, one who candidly admits his guilt should

not, by virtue of that fact be denied leniency. So called

“plea bargaining,” which in part is premised upon the

idea that a defendant who confesses is entitled to some

degree of compassion, has respectable support in New

Jersey and throughout the country. It would be specious

to contend that the Fifth Amendment bars a potentially

less severe punishment upon an admission of guilt. We

submit that the New Jersey murder statutes do not in-

fringe upon an accused’s Fifth and Sixth Amendment

rights and do not “needlessly” and “unnecessarily” penal-

ize those who elect to proceed to trial and to assert their

innocence of the crime charged.

1. No penalty is imposed upon one who chooses to

defend against a murder charge.

It is well established that the State may not exact an

unnecessary price for the assertion of a constitutional

right. See e.g., United States v. Jackson, 390 U.S. 570

6

(1968), cf. Lefkowitz v. Turley, 414 U.S. 70 (1973); Gard-

ner v. Broderick, 392 U.S. 273 (1968); Uniform Sanitation

Men v. Sanitation Comm’r., 392 U.S. 280 (1968); Spevack

v. Klein, 385 U.S. 511, 515 (1967); Garrity v. New Jersey,

385 U.S. 493 (1967); Griffin v. California, 380 U.S. 609

(1965). See also Note, “Another Look at Unconstitu-

tional Conditions,” 117 U.Pa.L.Rev. 144 (1968). Thus,

this Court has heid that statements obtained during the

eourse of disciplinary investigations under the threat of

dismissal from publie office cannot be used as evidence in

a subsequent criminal prosecution. See, e.g., Garrity v.

New Jersey, supra. So too, statutes voiding public con-

tracts entered into by one who has asserted the Fifth

Amendment privilege against self-incrimination have been

held to be constitutionally infirm. Lefkowitz v. Turley,

supra. In a similar vein, this Court has condemned the

practice of mandatorily disbarring attorneys based upon

their exercise of the Fifth Amendment right to remain

silent. Spevack v. Klein, supra. In these and in other

contexts, it was held that the law may not place a pre-

mium on the assertion of a valued constitutional right.

See Dunn v. Blumstein, 405 U.S. 330 (1972): Malloy v.

Hogan, 378 U.S. 1 (1964); United States v. Derrick, 519

F.2d 1 (6 Cir. 1975); Hess v. United States, 496 F.2d

936 (8 Cir. 1974).

This much conceded, it is equally clear that our Con-

stitution does not serve to insulate those accused of erim-

inal conduct from the necessity of making delicate choices.

See, e.g., Chaffin v. Stynchcombe, 412 U.S. 17 (1973);

McGautha v. California, 402 U.S. 183 (1971); Brady v.

United States, 397 U.S. 742 (1970); McMann y. Richard-

son, 397 U.S. 759 (1970). Cf. Colten v. Kentucky, 407

U.S. 104 (1972). The criminal process, like the rest of

the legal system, “is replete with situations requiring the

making of difficult judgments as to which course to fol-

me eS NE

low.” McGautha v. California, supra at 213. The de-

fendant in a criminal trial “is frequently forced to testify

himself and to call other witnesses in an effort to reduce

the risk of conviction.” Williams v. Florida, 399 U.S.

78, 83 (1970). So too, when an accused presents witnesses

at trial, he must reveal their identity and submit them to

cross-examination which, in itself, may prove incriminat-

ing or may furnish the prosecution with strong rebuttal

evidence. Jd. at 83-84. That the defendant faces such a

dilemma “has never heen thought an invasion” of his

constitutional rights. Id. at 84; State v. Corbitt, 74 N.J.

379, 398, 378 A.2d 235, 245 (1977). The threshold ques-

tion is whether compelling the election impairs to an ap-

preciable extent any of the policies underlying the rights

involved. McGautha v. California, supra, 402 U.S. at 213.

Hence, the inquiry must focus upon whether the New

Jersev murder statutes’ sentencing scheme “unnecessar-

ily” places a burden upon the accused’s assertion of his

constitutional right to defend against a criminal charge.

State v. Corbitt, supra, 74 N.J. at 397, 378 A.2d at 244.

Resolution of the issue requires examination of the na-

ture and gravity of the choice confronting a defendant

charged with murder.

Appellant claims that he was penalized by virtue of his

election to proceed to trial. In essence, he contends that

he would have been eligible for a term less than life im-

prisonment had he pleaded non vult. It is argued that

the New Jersey murder statutes place an unconstitutional

penalty upon the exercise of the right to contest the

State’s charges before a jury. Appellant argued below

that one accused of murder is faced with the “grisly”

choice between contesting the State’s charges, thus assur-

ing a penalty of life imprisonment if convicted of first

degree murder, and pleading non vult with the attendant

potential of being sentenced to a lesser term of years. It

is argued that such a grave choice exacts a penalty with

regard to those who wish to exercise valued constitutional

rights.

In support of this claim, defendant heavily relics upon

United States v. Jackson, 390 U.S. 570 (1968). There,

this Court declared invalid the death penalty provision

of the Federal Kidnapping Act beeause it “unnecessar-

ily” and “needlessly” burdened the defendant’s right to

contest the prosecution’s charges before a jury. That

statute provided that capital punishment could be imposed

only upon a jury’s recommendation which was binding

on the trial court. 18 U.S.C. §1201(a). A defendant

could be assured of avoiding the death penalty only by

waiving a jury trial or entering a guilty plea. This Court

reasoned that since the defendants could avoid the death

penalty only by pleading guilty or proceeding to trial

before a judge, they were “needlessly enecourage[d]” to

waive their basic rights both to contest guilt and to do

so before a jury. 390 U.S. at 583. While recognizing the

State’s legitimate interest in jury-imposed capital punish-

ment, the Court found that there were other means avail-

able which would subject all defendants to an equal risk

of death and thereby eliminate the “unnecessary” and

“excessive” burden upon defendants who desired a jury

trial. 390 U.S. at 582.

As a result of the decision in Jackson, grave doubts

were generated with respect to the validity of statutes

which permitted a criminal defendant to avoid capital

punishment by foregoing a jury trial. Like the Federal

Kidnapping Act, the New Jersey murder statutes pro-

vided that only a jury could impose the death penalty.

State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968), cert.

den. sub nom. New Jersey v. Presha, 408 U.S. 942 (1972).

However, our statutory scheme differed because a de-

fendant could not be tried by a judge. Jd. at 269, 245 A.2d

at 184. Furthermore, acceptance of a plea of non vult,

by which a defendant could escape the possibility of fac-

ing death, was discretionary with the trial court. Jd. at

270-71, 245 A.2d at 184-185. In State v. Forcella, supra,

the New Jersey Supreme Court held that the Sixth

Amendment challenge was meritless because the New Jer-

sey statute required trial by jury in all cases in which the

accused contested his guilt. Jd. at 272, 245 A.2d at 185.

As for the claim that the Fifth Amendment was violated,

a majority reasoned that acceptance of a plea of non

vult was discretionary with the trial judge, and thus, the

impermissible encouragement to plead guilty that existed

under the Federal Act was not present under the New

Jersey statute. Id. at 279-80, 245, A.2d at 189-190. The

majority further reasoned that the non vult plea was

enacted pursuant to valid governmental interest to pro-

vide lenity for those who were willing to admit their

guilt. Id. at 275, 245 A.2d at 187. The New Jersey Su-

preme Court, therefore, upheld our capital penalty pro-

vision in recognition that it constituted nothing more than

a form of plea bargaining by allowing consideration to

be given to the accused who admits his guilt. Jd. at 275-

276, 245 A.2d at 187.

Significantly, the majority in Forcella accurately fore-

casted the question in State v. Corbitt, swpra. Specifically,

the majority suggested that striking the death penalty

might still leave a “Jackson-type difficulty” in that a de-

fendant who pleads non vult would receive life or a term

of years whereas a defendant found guilty of first degree

murder would necessarily receive life imprisonment. Since

the Court concluded that the New Jersey statutes did not

fall afoul of the Fifth and Sixth Amendments, the majority

found it unnecessary to resolve the issue. The two dissent-

ing Justices were of the view that this Court’s decision in

Jackson were dispositive and that the New Jersey statutes

10

infringed upon the constitutional right to defend against

the State’s charges before a jury. The dissenters, there-

fore, found it necessary to squarely confront the question

presented in Corbitt.

The dissenting opinion in Forcella rejected the conten-

tion that a statute mandating life imprisonment upon a con-

viction following a jury trial but permitting a lesser pen-

alty upon a plea of non vult would be violative of the

Fifth and Sixth Amendments. According to the dissent,

“the inducement [to plead non vult] would be insignificant

when compared to the death penalty stricken in Jackson.”

52 N.J. at 300, 245 A.2d at 201. The dissenters aptly ob-

served that “the law has always been administered with

pragmatic recognition of the fact that the difference be-

tween the death penalty and imprisonment entails more

than matters of logic and degree.” Id. Jackson was dis-

tinguished upon the basis that it was “concerned solely with

the grisly choice between a plea or waiver with an assur-

ance of no death penalty, and a jury trial with the danger

of capital punishment.” Jd. at 301. This same conclusion

was reached by the New Jersey Supreme Court in State v.

Corbitt, supra, 74 N.J. at 399, 378 A.2d at 235.

In any event, this Court was unconvinced by the ma-

jority’s reasoning in State v. Forcella, supra, and sum-

marily reversed and remanded the matter three years

later. Funicello v. New Jersey, 403 U.S. 948 (1971). On

remand, the New Jersey Supreme Court struck the capital

penalty provision. State v. Funicello, 60 N.J. 60, 286 A.2d

55, cert. den. sub nom. New Jersey v. Presha, 408 U.S.

942 (1972). It ruled that in all future cases, those found

guilty of first degree murder by a jury would be sentenced

to a mandatory term of life imprisonment and that the

penalty provisions applicable upon a plea of non vult

would remain intact. Jd. at 68, 286 A.2d at 59.

11

Hence, in 1972 the New Jersey Supreme Court provided

the framework under which the murder statutes were to

be applied and administered. Accordingly, a defendant

who proceeds to trial faces the possibility of receiving a

life sentence if found guilty of first degree murder. He

may also be found guilty of second degree murder, in

which case he faces a maximum exposure of 30 years im-

prisonment, N.J.S.A. 2A :113-4, or manslaughter, in which

event he faces a maximum sentence of ten years, N.J.S.A.

2A :113-5. He may also be acquitted. A defendant who

pleads non vult to murder may receive a sentence of life

imprisonment. The court may, however, impose a maxi-

mum term of 30 years. N.J.S.A. 2A :113-3.

It is manifest that the sentencing scheme of the New

Jersey murder statute is fundamentally different from

that struck down in United States v. Jackson, supra. As

noted previously, this Court found it constitutionally offen-

sive to subject only those who contested their guilt before

a jury to a greater penalty than all other similarly situ-

ated individuals who elected to contest the State’s charges.

Under the New Jersey statutes, however, the defendant

faces exactly the same maximum sentence exposure.

Whether he proceeds to trial or enters a plea of non vult,

he cannot avoid the potential of receiving a life sentence

by admitting the State’s charges. This exposure to the

identical maximum sentence eliminates the incongruity

found offensive in United States v. Jackson, supra. In sum,

no penalty whatever is imposed upon an accused who

elects to defend against the State’s charges.

12

2. United States v. Jackson applies only where the

death penalty is a consideration in the decision to

defend against a charge or plead guilty.

The question, therefore, is whether the mere possibility

of receiving a term of less than life imprisonment by

pleading non vult “unnecessarily” serves to penalize those

who elect to contest their guilt. Stated somewhat dif-

ferently, at issue is whether our statutory scheme places

an unwarranted and needless burden upon an accused who

wishes to defend against the State’s charges by mandating

life imprisonment upon a jury finding of guilt. As we

have noted, the strength of the inducement to obtain the

benefit and avoid the burden can be ascertained only by

carefully focusing upon the magnitude of the choices

involved. In our view, United States v. Jackson, supra,

is clearly distinguishable in this respect because capital

punishment is qualitatively different than mere imprison-

ment. Its finality and severity make the death penalty sui

generis. Although this Court has recently held that capi-

tal punishment is not per se “cruel and unusual” and,

hence, violative of the Eighth Amendment [Gregg v.

Georgia, U.S. ——, 96 S. Ct. 2909 (1976)], it has

been recognized that “[t]he calculated killing of a human

being by the State involves by its very nature, a denial

of the executed person’s humanity.” Furman v. Georgia,

408 U.S. 238, 290 (1972). So too, it has been said that

“{djeath is not only an unusually severe punishment, un-

usual in its pain and its enormity .. .,” but it is also

“truly awesome” because it destroys the right of an

executed person “to have rights.” Furman v. Georgia,

supra, 408 U.S. at 290. “Death is a punishment different

from all other sanctions in kind rather than degree.”

Woodson v. North Carolina, U.S. —, 96 S.Ct. 2978

(1976). See also Roberts v. Louisiana, —— U.S. —, 96

S.Ct. 3001 (1976). Certainly, the enormity of choosing

13

between life and death precludes a meaningful exercise of

the right to assert one’s innocence. The Jackson decision

made constant reference to the inordinate burden of facing

the choice between life and death. 390 U.S. at 572, 581.

As the Court noted:

Under the Federal Kidnapping Act, therefore, the

defendant who abandons the right to contest his

guilt before a jury is assured that he cannot be exe-

cuted; the defendant ingenuous enough to seek a

jury acquittal stands forewarned that, if the jury

finds him guilty and does not wish to spare his life,

he will die. (390 U.S. at 580.)

Capital punishment has always been regarded as such

a unique penalty that any choice between life and death

has been characterized as a “grisly” one. See, e.g., Fur-

man v. Georgia, 408 U.S. 238, 286-90 (1972) (Brennan, J.,

Concurring); Fay v. Noia, 372 U.S. 391 (1963); United

States v. Coke, 404 F.2d 836, 846 n. 9 (2 Cir. 1968) ; Com-

monwealth v. O’Neal, 339 N.E. 2d 676, 680 (Mass. 1975).

It is evident that the possibility of death is a far different

price to pay for contesting one’s guilt than the risk of a

sentence of life imprisonment instead of a possible term

of years.

Subsequent judicial holdings have made it apparent that

United States v. Jackson, supra, forbids oniy government

induced choices of a substantial nature akin to that in-

volving the clear cut question between life and death.

In Crampton v. Ohio, 402 U.S. 103 (1971), this Court

upheld the constitutionality of Ohio’s system of conducting

criminal trials. In Ohio, the jury is permitted to deter-

mine guilt and punishment in a single proceeding. Peti-

tioner argued that unless the trial were bifurcated, he

would be coerced to forego his right to remain silent in

14

order to argue for mitigation. This he contended “chilled”

his Fifth Amendment right because he risked a harsher

sentence if he remained silent. This Court held that the

Ohio system did not place an impermissible burden on the

petitioner’s assertion of his Fifth Amendment right. In

short, the Court concluded that, “although a defendant may

have a right, even of constitutional dimension, to follow

whichever course he chooses, the Constitution does not by

that token always forbid requiring him to choose.” 402

U.S. at 213. In so holding, it was noted that the decision

in Jackson was limited to government compelled choices

involving life and death.

Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17 (1973),

this Court reiterated the principles set forth in Crampton

v. Ohio, swpra, and upheld Georgia’s unrestricted jury

resentencing procedures. Petitioner had been convicted

and sentenced to 15 years in prison by a jury on a charge

of robbery. He thereafter successfully obtained a writ of

habeas corpus. Petitioner was then retried, convicted,

sentenced to life imprisonment by a jury which had no

knowledge of the previous sentence. Petitioner argued

that the possibility of receiving a harsher sentence on

retrial had a chilling effect on the exercise of his right to

appeal or collaterally attack his conviction. The Court

was unpersuaded and rejected petitioner’s claim that its

holding in United States +. Jackson, supra, called for

abrogation of the Georgia system. It reasoned that the

Georgia practice was a legitimate one and that an inci-

dental consequence of the procedure was that it required

the accused to choose to accept the risk of a greater sen-

tence or waive his rights. 412 U.S. at 32-33. Despite the

fact that under Georgia’s system an accused might be

penalized by exercising his right to appeal, the Court

held that the possibility of receiving a harsher sentence

did not needlessly exact an unconstitutional burden. 412

US. at 35.

15

Courts in other jurisdictions besides New Jersey have

also construed the holding in United States v. Jackson,

supra, as applying only to the “grisly” choice between life

and death. In Whaley v. State, 202 Kan. 175, 446 P.2d

397 (1968), for example, the Kansas Supreme Court re-

jected a claim that an accused was discouraged from

asserting his Fifth and Sixth Amendment rights because

of the possibility that the prosecutor would invoke the

habitual offender statute if he proceeded to trial. The

Court noted that the possibility of an enhanced sentence

by electing to contest the State’s charges does not alone

constitute a burden of the magnitude involved in Jackson.

Id. at 176, 446 P.2d at 398.

Likewise, the Illinois Court of Appeals has held that the

financial burden placed upon an accused who elects to

contest his guilt by proceeding to trial does not constitute

a “substantial” penalty for the assertion of a constitutional

right. In People v. Peters, 32 Ill. App. 3d 1018, 337 N.E.

2d 73 (Ill. App. Ct. 1975), defendant contended that an

Illinois statute which required an accused to reimburse the

State’s attorney with respect to per diem expenses upon

conviction following a trial, deprived him of his Fifth

Amendment right to contest his guilt More specifically,

it was argued that an assessment of trial costs made pur-

suant to the statute constituted a penalty imposed by

virtue of the defendant’s election to defend against the

State’s charges. The Court of Appeals summarily rejected

defendant’s claim that United States v. Jackson, supra,

was applicable. The Court held that the financial burden

imposed by the statute was infinitely less substantial than

the possibility of receiving the death penalty. Hence, the

statute did not serve to penalize those who elected to con-

test their guilt. See also Fuller v. Oregon, 417 U.S. 40

(1974) (Oregon recoupment statute for attorney’s fees

does not impermissibly chill assertion of the right to

counsel).

16

It is thus apparent that the mere possibility of receiv-

ing a lesser term ot imprisonment upon a plea of non vult

does not serve to penalize those who choose to defend

against the State’s charges. Even were we to conclude

that our statutory scheme imposes a burden with respect

to those who elect to contest their guilt, it would not fall

afoul of the Fifth and Sixth Amendments. The New

Jersey murder statutes do not suffer from the same in-

firmity as that found to be present in the Federal Kid-

napping Act in United States v. Jackson, supra. The

election compelled by our statutes does not impair “to an

appreciable extent” any of the policies which the Fifth

and Sixth Amendments seck to protect. In short, our

statutory scheme does not compel a defendant to choose

between exercising his constitutional rights with the at-

tendant risk of exposing himself to the death penalty and

pleading non vult, thereby avoiding the danger of capital

punishment. State v. Corbitt, supra, 74 N. J. 379, 399,

378 A.2d 235, 245 (1977).

3. No needless nor unnecessary burden is »laced upon

a defendant who chooses to contest his guilt.

It is the position of the State of New Jersey that United

States v. Jackson, supra, is inapposite for another reason.

As we have noted, the Supreme Court concluded that the

death penalty provision in the Federal Kidnapping Act

“needlessly encourage[d]” those charged with having

committed the offense to waive their rights both to con-

test guilt and to do so before a jury. 7d. at 583. The

federal statute was said to impose an “unnecessary” and

“excessive” burden upon those who desired a jury trial.

Id. at 582. The use of these terms by this Court plainly

indicates that not every burden imposed upon a defend-

ant who elects to contest the State’s charges is subject

A 4 Oe se ee

17

to constitutional attack. As already pointed out, numer-

ous consequences necessarily flow from a decision to ex-

ercise the Fifth Amendment privilege against self-incrim-

ination. For example, although an accused is under no

constitutional obligation to present witnesses or to testify

in his own behalf at trial, such a course of conduct may

substantially increase the risk of conviction. But we have

noted that such « dilemma has never been thought an

invasion of a defendant’s constitutional rights, for the

burden imposed is neither “needless,” “unnecessary,” nor

“excessive.” The inquiry must thus focus upon whether

the option present in the New Jersey statutory scheme is

reasonably related to a proper governmental goal.

We note in this context that if the Fifth Amendment

bars a lesser penalty when guilt is admitted, the entire

practice of plea bargaining is necessarily implicated. In

the aftermath of Jackson, it was widely recognized that

plea bargaining was subject to doubt. See, e.g., Comment,

54 Cornell L. Rev. 448 (1969); Poe, “Capital Punishment

Statutes in the Wake of United States v. Jackson: Some

Unresolved Questions,” 37 Geo. Wash. L. Rev. 719 (1969) ;

“The Supreme Court, 1967 Term,” 82 Harv. L. Rev. 63,

156 (1968); Note, “The Unconstitutionality of Plea Bar-

gaining,” 83 Harv. L. Rev. 1387 (1970); Comment, 44

N.Y.U. L. Rev. 612 (1969); Comment, 47 N.C. L. Rev.

421 (1969); Note, “Discriminatory Sentencing and the

Unitary Trial: Two Areas For Application of the United

States v. Jackson Rationale,” 31 U. Pitt. L. Rev. 118

(1969); Comment, 1969 Wash. U.L.Q. 231 (1969). See

also Comment, 22 Rutgers L. Rev. 167 (1967). The broad-

est interpretation of Jackson could conceivably lead to a

conclusion that whenever a system provides a means to

obtain leniency, either by statute or practice, a defendant

who rejects a proposed plea bargain, contests guilt, and

thus receives a heavier penalty is deprived of his Fifth

Amendment rights.

18

Such broad implications were quickly dispelled by this

Court in Brady v. United States, 397 U.S. 742 (1970),

Parker v. North Carolina, 397 U.S. 790 (1970), and North

Carolina v. Alford, 400 U.S. 25 (1970). There, defend-

ants, who had pleaded guilty to avoid the possible imposi-

tion of the death penalty, attempted to retract their pleas

by asserting that the statutes under which they were pro-

secuted dissuaded them from asserting their constitutional

rights. The principal thrust of their argument was

grounded upon the claim that they had abandoned their

right to defend in order to safeguard their right to live.

They thus asserted that their guilty pleas were “coerced.”

This Court perceived no constitutional violation. More

specifically, it was reasoned that the defendants’ dilemma

was no different from the circumstances existing in any

common plea bargaining situation. 397 U.S. at 751. Al-

though it was recognized that plea bargaining has a po-

tentially chilling effect on assertion of Fifth and Sixth

Amendment rights, the practice was upheld as a necessary

and legitimate adjunct to the administration of criminal

justice. 404 U.S. at 751-752.

This Court subsequently reiterated its position with re-

gard to plea bargaining. In fact, in Santobello v. New

York, 404 U.S. 257 (1971), it was suggested that plea

bargaining is a virtuous and desirable practice which

should be encouraged. This, despite the fact that plea

bargaining presents a potentially chilling effect upon the

assertion of the constitutional right to defend.

It bears repeating that plea bargaining is predicated

upon the just and humane concept that those who acknow-

ledge guilt are probably better prospects for rehabilitation

and should be given consideration on that account. Surely,

“we should not deny a justified leniency for the many,

merely to be positive that no man is needlessly encouraged

ee eee eet

19

not to defend.” State v. Forcella, supra, 52 N.J. at 276,

245 A.2d at 188. The gain to the many plainly outweighs

whatever evil may repose in encouraging the guilty to

confess. As to the fear that the innocent might be stam-

peded, “there are safeguards against a false guilty plea.”

Id. A plea of guilty may not be entered if the accused

claims he is innocent. Further, in New Jersey a “factual

basis” must support the defendant’s decision not to con-

test the State’s charges. See State v. Reali, 26 N.J. 222,

139 A.2d 300 (1958). With respect to those who perceive

a benefit in the form of a lesser sentence if they plead

guilty, it can hardly be argued that they are “needlessly”

penalized by virtue of their election to reject such a

course. The potential of receiving a lesser penalty upon

a plea of guilty is not “unnecessary.” Nor is the burden

that is incidentally imposed upon such an individual “ex-

cessive.”

Our non vult statute embodies the principles of plea

bargaining. It achieves the same result as the down-

grading of offenses or the dismissal of selected charges.

The statute cannot be found to unnecessarily and need-

lessly discourage assertion of an individual’s Fifth and

Sixth Amendment rights. A defendant who proceeds to

trial on a murder charge no longer faces a “grisly” choice.

His knowledge that those who plead non vult face the

same possibility of a life term certainly diminishes any

alleged agony inherent in his choosing a trial over a plea.

Finally, his knowledge that others who plead may receive

a sentence less than life imprisonment is no different from

the situation confronting all defendants who proceed to

trial, aware of the fact that others have obtained bar-

gains to plead guilty in exchange for dismissal of other

pending charges or for some other benefit. In short,

there are no excessive or unnecessary conditions encom-

passed in the present New Jersey murder statutes such

as to render them unconstitutional.

20

B. The sentencing scheme of N.J.S.A. 2A:113-3 and

N.J.S.A. 2A:113-4 does not constitute a violation of a

defendant’s right to equal protection.

The Appellant has argued that the sentencing scheme

of the New Jersey murder statute violates the Equal

Protection Clause of the Fourteenth Amendment. He has

pointed to the fact that those who have pleaded non vult

may be sentenced to a term of years, while others who

have been convicted of first degree murder following a

trial are necessarily sentenced to life imprisonment.

N.J.S.A. 2A :113-3, 4. The import of the argument is that

the State may not impose “different punishments for the

same” crime where the differing penalties are based en-

tirely on whether the accused has chosen to stand trial.

(See Jurisdictional Statement at 12).

It is the contention of the State of New Jersey that it

would be grossly unfair if all had to be sentenced without

regard to their acknowledgment of guilt. While it is true

that the law may not add a penalty by virtue of a defend-

ant’s election to contest the State’s charges, Scott v.

United States, 419 F.2d 264 (D.C. Cir. 1969), Thomas v.

United States, 368 F.2d 941 (5 Cir. 1966), it is not irra-

tional to take into account “defendant’s prospect for re-

demption reflected by his attitude toward the truth.” State

v. Poteet, 61 N.J. 493, 295 A.2d 857 (1972). As the New

Jersey Supreme Court aptly observed in State v. Poteet,

supra, “(t]he aims of punishment are several, but the

hope is constant that . . . mild or severe, [it] wili shape

the offender.” Id. at 496, 295 A.2d at 859. “Assaying the

prospects for rehabilitation, the court must look at the

man as well as the offense,” and it is here that a defend-

ant’s candid acknowledgment of guilt should be given

some consideration. Jd. Although it would be conceptually

wrong to enlarge the crime for which a defendant is being

21

punished because he chose to stand trial, it is equally clear

that a legislative judgment based upon the premise that

a frank confession indicates some promise of rehabilita-

tion is neither unsound nor unjust. In any event the

State of New Jersey has exhaustively set forth its argu-

ment with regard to this question in Point A. Suffice it

to say, we do not perceive it to be a violation of equal

protection to accord a benefit to those who have acknowl-

edged their guilt by pleading non vult.

Other considerations support our position. First, our

statutes do not provide disparate punishments “for the

same offense.” A short form indictment is sufficient to

encompass first and second degree murder. Hence, a de-

fendant is not permitted to plead non vult to any particu-

lar degree of murder. In the words of the statute, the plea

is to be directed “to the indictment” which charges mur-

der generally. In contrast, the mandatory term of life im-

prisonment is applicable only following a jury finding of

first degree murder. It is apparent, therefore, that those

who plead non vulé to “murder” and those who are found

guilty of first degree murder are not similarly situated.

The sentencing scheme merely reflects this basic reality.

Second, an Equal Protection argument is predicated upon

the erroneous assumption that all similar conduct consti-

tutes the “same offense.” Although we will shortly set

forth our argument in some detail, it is enough to observe

here that criminal statutes often overlap in prohibiting the

same conduct and a prosecutor’s decision to proceed under

one or another has never been thought to offend the con-

cept of equal protection. The same principles are appli-

cable with respect to our murder statutes. Although the

offense of “murder” and “murder in the first degree” may

be said to “overlap,” equal protection is not offended as

22

long as the court does not act arbitrarily in exercising its

discretionary power to acecpt or reject a plea of non vult.

1. There is no cognizable class against which equa!

protection is being denied.

The guarantee of equal protection requires that a legis-

lative classification bear a rational relationship to a legiti-

mate governmental goal. See Tussman and Ten broek,

“The Equal Protection of the Laws,” 37 Calif. L.Rev. 341,

348 (1949); Note, “Developments in the Law: Equal Pro-

tection,” 82 Harv. L.Rev. 1065, 1077-81 (1969). When a leg-

islature creates a classification, those similarly situated

must be treated alike. Tussman and Ten broek, supra at

344-46. It is manifest that the threshold question in re-

solving any alleged equal protection violation is whether

the challenged legislation or state practice creates any

classification whatsoever. The point is best illustrated by

Justice Harlan’s dissenting opinion in Griffin v. Illinois,

351 U.S. 12 (1956). There, it will be recalled, the majority

held the Lllinois practice which required an appellant to

absorb the costs of providing a transcript on appeal con-

stituted a violation of equal protection because it unrea-

sonably discriminated on the basis of wealth. Justice Har-

lan dissented, contending that the basis for the majority

holding was not equal protection but rather due process.

351 U.S. at 36. He explained that when the State im-

poses legal disabilities upon a named class the equal pro-

tection guarantee is called into question. Jd. at 35-36.

Merely posing a choice or condition to receipt of a State-

proffered benefit, on the other hand, involves no classifica-

tion. Id. Accordingly, such a system is properly analyzed

by employing the “fundamental fairness” standard of the

due process clause. Id. at 36.

Cc

Os La aN

23

In the instant case, the initial inquiry is whether the

Legislature has in fact made any classification which arbi-

trarily treats those similarly situated. Otherwise stated,

the question presented is whether the New Jersey Legisla-

ture has singled out a particular group of individuals and

arbitrarily imposed upon that class a legal disability that

it does not impose upon all others in a like position. So

posited, the State of New Jersey submits that the only

class created by the Legislature was the unitary category

of indicted murderers. Our statutes offer a series of ef-

fectively identical choices to all members of this class. Spe-

cifically, all defendants have the opportunity to plead non

vult. Aeceptance of the plea, of course, is in the discre-

tion of the court. Of significance, however, is that all de-

fendants possess an equal opportunity to request the

court’s indulgence. Thus, the system does not designate

two separate classes to which it imposes distinct legal dis-

abilities. Rather, our system merely provides several

courses of action to all defendants charged with murder.

As such, it is evident that this case does not implicate

values underlying the equal protection clause. Rather the

question presented is one of due process. Specifically, the

issue is whether the election compelled by our statutory

scheme is fundamentally unfair. The fairness of the choice,

phrased in terms of whether it is unconstitutionally oner-

ous, has been amply demonstrated in Point A, supra. Ac-

cordingly, we submit that appellant’s contention regarding

the alleged denial of the equal protection guarantee is

without merit.

2. Assuming a cognizable class, there is no disparity

of punishment for the same offense.

A non vult plea to murder in New Jersey does not in-

volve the same crime as a conviction for first degree mur-

oA

der, although in some circumstances both may encompass

similar conduct. First degree murder is a crime in which

conduct of a specific nature and quality is proscribed. The

sentence for such conduct is life imprisonment. A non vult

plea is not comparable to a conviction of a specific degree

of murder. State v. Sullivan, 43 N.J. 209, 245, 203 A.2d

177, 197 (1964), cert. den. 382 U.S. 990 (1966); State v.

Williams, 39 N.J. 471, 479, 189 A.2d 193, 197 (1963), cert.

den, 374 U.S. 855 (1963). Rather, it is a plea to the in-

dictment encompassing conduct which may constitute both

degrees of murder, and manslaughter as well. State v.

Sullivan, supra, 43 N.J. at 246, 203 A.2d at 197. The plea

must be accepted without specification of the degree of

guilt. Jd. Accordingly, the sentence for the plea spans

the broad range of conduct encompassed by the indict-

ment. It is apparent that a plea of non vut is for an

offense different from first degree murder because it in-

cludes a far broader range of criminal conduct.

It was upon this basis that a similar claim was rejected

by the New Jersey Supreme Court in State v. Sullivan,

supra. There, the defendant had been convicted of first

degree murder. On appeal, he contended that our murder

statutes exacted a penalty with regard to those who elected

to contest their guilt. It was argued that disparate pen-

alties were imposed depending upon the accused’s election

to plea non vult or contest the State’s charges. Defendant

claimed that such an election deprived those charged with

murder “of due process and equal protection of the law.”

Id. at 245, 203 A.2d at 197. The court was unpersuaded.

Not only is there no right to demand acceptance

of a plea of non vult, but acceptance thereof by the

court confers no right to any particular sentence

short of life imprisonment. As N.J.S.A. 2A:113-3

prescribes, the term may be for life or for any

ads <auhs

eee

25

period up to the 30-year maximum for second degree

murder. One reason for the broad expanse of sen-

tencing power is the nature of the indictment. As

we have said, it specifies no degree of murder, and

will support a conviction of first or second degree

murder or manslaughter. (We note in passing it

has been suggested persuasively that there is noth-

ing in our rules or statutes which prohibits a spe-

cific indictment for second degree murder in a

proper case.) Under our cases the plea must be to

the indictment. It should not be to a specific de-

gree of murder. Nor does the statute, as in earlier

days, contemplate a hearing to determine the de-

gree of guilt or the nature of the sentence to be

imposed. State v. Williams, 39 N.J. 471, 479 (1963).

Sentence is passed by the court within the broad

limits authorized after consideration of the nature

of the offense and a comprehensive probation re-

port. R.R. 3:7-10(b). [Id. at 246-247, 203 A.2d

at 197; emphasis supplied].

Appellant contends that since an accused who theoreti-

cally commits the same crime as one convicted of first

degree murder may plead non vult, our statutes impose

different punishments for the same offense. This argu-

ment is based on the faulty assumption that all similar

conduct constitutes the same crime. It is evident, how-

ever, that an accused’s conduct may violate two over-

lapping statutes. Where there is such an overlap, the

prosecuting authority has discretion to proceed under

either statute. United States v. Berrigan, 482 F.2d 171

(3 Cir. 1973); Newman v. United States, 127 U.S. App.

D.C. 263, 382 F.2d 479, 480 (1967). So long as the pro-

secutor does not act arbitrarily and does not discriminate

against a class of defendants, it has been held that equal

26

protection is not denied. United States v. Rugiero, 472

F.2d 599, 606 (2 Cir. 1973), cert. den. 412 U.S. 939

(1973); United States v. Eisenmann, 396 F.2d 565, 568

(2 Cir. 1968); United States v. Andrews, 370 F.Supp. 365,

370 (D. Conn. 1974). In short, the mere existence of over-

lapping statutes is not a deprivation of equal protection.

Just as two or more statutes may cover the same con-

duct so that different penalties may be imposed for the

identical offense, the New Jersey murder statutes may be

said to “overlap.” The major difference is that under

our murder laws, the discretion to administer the statutes

does not reside solely in the prosecutor. Instead, the

accused may tender a plea of non vult, but the court must

decide whether to accept it. If a conviction for first de-

gree murder best serves the legislative purpose, the plea

must be rejected or a comparable sentence be imposed.

State v. Sullivan, 43 N.J. 209, 203 A.2d 177 (1964), cert.

den. 382 U.S. 990 (1966); State v. Forcella, 52 N.J. 263,

245 A.2d 181, cert. den. sub nom. New Jersey v. Presha,

408 U.S. 942 (1972).

To further clarify the point, the situation can be viewed

in a slightly different fashion. In many instances in

which an individual commits a criminal act, his conduct

may constitute both a greater and lesser offense. For

example, activity which constitutes atrocious assault and

battery in New Jersey is also proscribed by our disor-

derly persons statute. Activity which constitutes robbery

also falls within our larceny statute. The prosecutor has

discretion to choose the charge. Furthermore, he can

charge the greater offense and then later downgrade it

in exchange for a plea of guilty. The individual who is

tried and convicted of the greater offense is not denied

equal protection because another who may have engaged

in similar conduct is either charged or convicted of the

lesser crime.

rl EES Ente nen

a ee a ee

ee

a

27

Analogously, one who is convicted of first degree mur-

der cannot complain that he was denied equal protection

because another was permitted to plead non vult. Viewed

within this context, it is apparent that equal protection

is denied only if the various relevant statutes are applied

in an arbitrary or discriminatory fashion. If no par-

ticular class is singled out for harsher treatment, the

equal protection clause is not violated.

3. The penalty provisions of N.J.S.A. 2A:113-3 and

N.J.S.A. 2A:113-4 are not applied arbitrarily nor

irrationally.

Any analysis of the manner in which statutes are ap-

plied must be considered in light of the proposition that

“Legislatures are presumed to have acted constitutionally

. . and their statutory classifications will be set aside

only if no grounds can be conceived to justify them.”

McDonald v. Board of Election Commissioners, 394 U.S.

802, 809 (1969). As long as some reasonable basis ex-

ists for the recognition of separate classes and disparate

treatment, and the legislation has a rational relation to

the object sought to be achieved, there is no constitutional

infirmity. See Eisenstadt v. Baird, 405 U.S. 488, 446-447

(1972); United States v. Maryland Savings-Share Ins.

Corp., 400 U.S. 4 (1970). The function of the judiciary

in reviewing a statute “is to determine whether it is pos-

sible to say that the legislative decision is without ra-

tional basis.” Clark v. Paul Gray, 306 U.S. 583, 585

(1939).

It is the position of the State of New Jersey that the

rational relationship test for determining equal protec-

tion should be utilized in analyzing the sentencing provi-

sions of the murder statutes. This court, recognizing

this traditional test, has in recent years recognized that

28

there are some situations where it is inappropriate to

apply the “rational relationship” test. Certain statutory

classifications are so inherently suspect as to compel

greater judiciary scrutiny (?.e., those based on race, na-

tionality, alienage, political affiliation and sex). So too,

statutory schemes which affect fundamental rights are to

be carefully reviewed. In these cases, a stricter equal

protection standard has been fashioned by this Court

requiring a showing that the statutory scheme challenged is

based upon a “compelling governmental interest.” Phrased

somewhat differently, if a statutory classification is

based upon an inherently suspect criterion, or if it affects

fundamental rights, then it must be demonstrated that

the legislation is necessary to promote a compelling gov-

ernmental interest. See Shapiro v. Thompson, 394 US.

618 (1969) (Harlan, J. dissenting). A heavy burden of

justification is imposed upon the State and such statutes

are closely scrutinized in light of their essential purposes.

Dunn v. Blumstein, 405 U.S. 330 (1972). State v. Cham-

bers, 63 N.J. 287, 307 A.2d 78 (1973).

It is submitted that the New Jersey statutory scheme

for murder does not create a classification which is “in-

herently suspect.” It does not affect fundamental rights,

i.e., those which are based solely on race, nationality, po-

litical affiliation, sex, the right to vote or the right to

travel. Nor does our statute affect the fundamental right

to live. The latter classifications have been found to be

inherently suspect and, thus, have been evaluated under

the “compelling governmental interest” formula. See e.g.

Frontiero v. Richardson, 411 U.S. 677, 686-87 (1973);

Reed v. Reed, 404 U.S. 71, 75 (1971); Shapiro v. Thomp-

son, 394 U.S. 618 (1969); Dunn v. Blumstein, 405 U.S.

330 (1972). On the other hand, legislatures are allowed

considerable leeway in classifying offenses and offenders

for sentencing purposes, provided there is a rational nexus

ee ee ee enn De ee 1 eeeanne ten DERE tee Te

Se eee oe

29

between the classification and a valid legislative purpose.

Kahn v. Shevin, 416 U.S. 351 (1974); Rinaldi v. Yeager,

384 U.S. 305 (1966).

When an individual violates a penal law, he is generally

subject to incarceration. In short, he has lost his right

to liberty. In such instances, the State need not demon-

strate a compelling governmental interest to support in-

earceration. Rather, it need only be shown that the

punishment imposed is reasonably related to a proper

governmental goal. Thus, the proper test to be employed

here is the “rational relationship” formula. State v.

Corbitt, 74 N.J. 379, 401, 378 A.2d 235, 247 (1977). See

San Antonio Independent School District v. Rodriguez, 411

U.S. 1 (1973).

It is apparent that a mandatory life term for first de-

gree murder is reasonably related to the goal of deter-

rence. Mandatory penalties are within the power of the

legislature to prescribe and the judiciary seldom acts to

challenge their validity. See State v. Howland, 103 Ariz.

250, 439 P.2d 821 (1968); McDonald v. State, 501 F.2d

385 (8 Cir. 1974), cert. den. 419 U.S. 1004 (1974); State

v. Colcord, 170 Minn. 502, 212 N.W. 894 (1927). In this

context, the statutory penalty challenged here serves as

a warning to those who might be predisposed to commit

the criminal offense that they will be harshly dealt with

upon conviction. The penalty is applicable to a class of

offenders whose disregard for life justifies severe pun-

ishment.

In any event, it is clear that the penalty is supported

by a compelling governmental interest. It is incumbent

upon the State to protect its citizens against premeditated

and deliberate attacks. In sum, the statutory penalty

serves a compelling governmental interest in deterring

criminal conduct. The judiciary cannot and should not

substitute its judgment for that of the Legislature.

30

On the other hand, the penalty provided for a plea of

non vult to murder without specification as to degree, an

offense which is different from first degree murder, is

rational. The penalty range is necessarily broad since

the criminal conduct encompassed is great. This range

is reasonably related to the governmental goal of pro-

moting rehabilitation. Since the penalty provisions of

N.J.S.A. 2A:113-3, 4 are reasonably related to proper

governmental goals, we respectfully submit that the guar-

antee of equal protection is not denied by the sentencing

scheme of the statutes.

II1.

CONCLUSION

Wherefore, Appellee respectfully submits that the

questions upon which this cause depend are so unsub-

stantial as not to need further argument, and Appellee

respectfully moves the Court to dismiss this appeal.

Respectfully submitted,

Joun J. DeGNan

Attorney General of New Jersey

Marc J. FrrepDMAN

Deputy Attorney General

Counsel for the State of New Jersey