North Carolina v. Alford Brief Amici Curiae

    IN  THE

(tort at tl)? Mmteb States
OCTOBER TERM, 1969

No. 50
STATE OF NORTH CAROLINA,

Appellant,
---y.---

HENRY C. ALFORD,
Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 268
CHARLES LEE PARKER,

— v.—

STATE OF NORTH CAROLINA,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 
OF NORTH CAROLINA

BRIEF AMICI CURIAE ON BEHALF OF ALBERT BOBBY 
CHILDS, MARIE HILL, AND ROBERT LEWIS ROSEBORO

JACK GREENBERG 
JAMES M. NABRIT, III  
MICHAEL MELTSNER 
NORMAN C. AMAKER 
JACK HIMMELSTEIN 

10 Columbus Circle 
New York, N. Y. 10019

CHARLES STEPHEN RALSTON 
1095 Market Street, Suite 418 
■San Francisco, California

ANTHONY G. AMSTERDAM
Stanford University Law School 
Stanford, California

JEROME B. FALK, JR.
650 California Street
San Francisco, California 94108

J. LE YONNE CHAMBERS 
JAMES E. FERGUSON, II  
JAMES E. LANNING 

216 West Tenth Street 
Charlotte, North Carolina

Attorneys for Amici Gu/riae



I N D E X

PAGE

Statement of Interest o f the Amici .............................  2

Statement .............................................................................  4

Summary of Argument ....................................................  6

A rgum ent

I. A Statutory Scheme Which Subjects to the Risk 
of the Death Penalty Only Those Defendants Who 
Elect to Stand Trial on the Issue of Guilt, and 
Which Forbids the Imposition of Death Upon 
Those Defendants Who Waive Their Constitu­
tional Rights to Deny and Contest Guilt, Is Uncon­
stitutional .....................................................................  8

II. A  Guilty Plea, the Making of Which Was Substan­
tially Motivated by the Threat of Imposition of 
the Death Penalty, Is Involuntary and Cannot
Stand ...........................................................................  22

Introduction .......................................................... 22

A. The Threat of the Death Penalty May De­
prive a Guilty Plea of Its Voluntary Char­
acter .................................................................  23

B. Standards for Determining the Validity
of a Potentially Death Penalty-Induced 
Guilty Plea ......................................................  26



11

T able of Cases

page

Bloom v. Illinois, 391 U. S. 194 (1968) ..........................  17
Boykin v. Alabama,------ U. S . ------- , 23 L. Ed. 2d 274

(1969) .............................................................7,16,23,24,27
Brookhart v. Janis, 384 U. S. 1 (1966) ........................   23
Bullock v. Harpole, 102 So. 2d 687 (1958) ...............  15

Carpenter y. Wainwright, 372 F. 2d 940 (5tb Cir.
1967) .............................................................. ................ 24,26

Childs v. North Carolina, 0. T. 1969, No. 25 Misc..... ..2, 4, 8
Conley v. Cox, 138 F. 2d 786 (8th Cir. 1943) ............... 25

De Stefano v. Woods, 392 U. S. 631 (1968) ................... 17
Davis v. North Carolina, 384 U. S. 737 (1966) ............... 29
Dillon v. United States, 307 F. 2d 445 (9th Cir. 1962) 25
Doran v. Wilson, 369 F. 2d 505 (9th Cir. 1966)   .....  24
Douglas v. Alabama, 380 IT. S. 415 (1965)  .................. 23
Duncan v. Louisiana, 391 U. S. 145 (1968) ..................... 17

Ellis v. Boles, 251 F. Supp. 1021 (N. D. W. Va. 1966) 25 
Euziere v. United States, 249 F. 2d 293 (10th Cir. 1957) 25

Fay v. Noia, 372 U. S. 391 (1963) ..................................  19
Forcella and Funicello v. New Jersey, O. T. 1969, No.

18 Misc.........................................................................4, .10, 30

G-arrity v. New Jersey, 385 U. S. 493 (1967) ................  24

Halliday v. United States, 394 U. S. 831 (1969) (per
curiam) .... ..................... ...... ............................................  27

Hamilton v. Alabama, 368 U. S. 52 (1961) ....... .............  19



I l l

Johnson v. New Jersey, 384 U. S. 719 (1966) ............... 29
Johnson v. Wilson, 371 F. 2d 911 (9th Cir. 1965) .......  25

Kercheval v. United States, 274 U. S. 220 (1927) .......  23

Lynch v. Overholser, 369 U. S. 705 (1962) ................... 13

McCarthy v. United States, 394 U. S. 459 (1969) .......  16
Machibroda v. United States, 368 U. S. 487 (1962) .... 25
Miranda v. Arizona, 384 U. S. 436 (1966) ......... ...... ......  28
Murphy v. Wainwright, 372 F. 2d 942 (5th Cir. 1967) 24

North Carolina v. Pearce,------U. S. —-—, 23 L, Ed. 2d
65 (1969) ....................................................................4,19,20

O’Connor v. Ohio, 385 U. S. 92 (1966) ........................... 23

Pope v. United States, 392 U. S. 651 (1968) ........ ...4, 5,18
Powell v. Alabama, 287 U. S. 45 (1932) ....................... 19

Singer v. United States, 380 U. S. 24 (1965) ............... 13
Smith y . United States, 321 F. 2d 954 (9th Cir. 1963) 25
Smith v. Wainwright, 373 F. 2d 506 (5th Cir. 1967) ..24, 26
State v. Atkinson, ------  N. C. ------ , 167 S. E. 2d 241

(1969) .........................................................................3,4,6,22
State v. Childs, 269 N. C. 307, 152 S. E. 2d 453 (1967) 2
State v. Forcella, 52 N. J. 263, 245 A. 2d 181 (1968) ....10,11,

13,14
State v. Harper, 162 S. E. 2d 712 (1968) ................. 14
State v. Hill, No. 2, Fall Term, 1969 ............................  2
State v. Peele, 274 N. C. 106, 161 S. E. 2d 568 

(1968)   ................................................................... 5,10,11

PAGE



IV

PAGE

State v. Roseboro, N o .------ , Fall Term, 1969 ...............  2
State v. Spenee, 274 N. C. 536, 164 S. E. 2d 593 (1968) 5
Stein v. New York, 346 TJ. S. 156 (1952) ....................... 19

Teller v. United States, 263 F. 2d 871 (6th Cir. 1959) 25

United States v. Cox, 342 F. 2d 167 (5th Cir. 1965) .... 13 
United States v. Glass, 317 F. 2d 200 (4th Cir. 1963) .. 25
United States v. Jackson, 390 U. S. 570 (1968) ....2, 3, 5, 6,

10,13,14,18, 
19, 20, 26, 29

United States v. Tateo, 214 F. Supp. 560 (S. D. N. Y.
1963) .....................................................................   25

United States ex rel. Elksnis v. Gilligan, 256 F. Supp.
244 (S. D. N. Y. 1966) ....................................................  25

United States ex rel. Ross v. McMann, 409 F. 2d 1016
(2nd Cir. 1969) (en banc) ........................................ 24,26

United States ex rel. Collins v. Maroney, 382 F. 2d 547
(3rd Cir. 1967) ..........................    24

United States ex rel. Cuevas v. Bundle, 258 F. Supp.
647 (E. D. Pa. 1966) .................................................. 25,26

"Walker v. Johnston, 312 U. S. 275 (1941) ..................... 25
Williams v. Georgia, 349 U. S. 375 (1955) ................... 19
Workman v. United States, 337 F. 2d 226 (1st Cir.

1964) .................................................................................  25

S tate S tatutes

La. Code of Crim. Proe. Art. 557 ..................................  15
Miss. Code §2217 ...............................................................  15
Miss. Code §2536 ...............................................................  15



Y

Neb. Eev. Stat. §28-417......................................................  15
N. C. Gen. Stat. §15-162.1 ................................................8,15
N. C. Session Laws, 1969, Ch. 117 ................................  22
N. H. Eev. Stat. Ann. §585:4 ..........................................  15
N. H. Eev. Stat. Ann. §585:5 ............................................  15
N. J. S. A. §2A :113-3 ........................................................ 15
N. J. S. A. §2A:113-4..................................................... . 15
N. Y. Code of Crim. Proc. §3321 ....................................  15
Eev. Code of Wash., Title 9, §9.52.010............................  15
S. C. Code §17-553.4 (1967) (Cum. Supp.) ...................  15
Vernon’s Ann. Code of Crim. Proc. of Texas, Art. 1.14, 

as amended, Tex. Act 1967, p. 1733, ch. 659, §1, effec­
tive August 28, 1967 ......................................................  15

Wyo. Stat. §7-195 ................................................................ 15

O th er  A uth ority

PAGE

Note, 54 Cornell L. Eev. 448 (1969) 19



I n  t h e

(Errurt of tlj? Inttefc
O ctober T erm , 1969

No. 50

S tate of N orth  Carolina, 

— v.—
Appellant,

H en ry  C. A lford,
Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 268

Charles L ee P arker, 

— v .—
Petitioner,

S tate of N orth  Carolina,
Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

OF NORTH CAROLINA

BRIEF AMICI CURIAE ON BEHALF OF 
ALBERT BOBBY CHILDS, MARIE HILL, 

AND ROBERT LEWIS ROSEBORO



2

Statement of Interest of the Amici

Amici Albert Bobby Childs,1 Marie Hill,2 and Robert 
Lewis Roseboro3 are North Carolina prisoners under sen­
tences of death. When charged with a capital crime, each 
was given by North Carolina statutory practice the choice 
of pleading guilty, thereby assuring a sentence of life im­
prisonment, or of risking the death penalty after jury trial 
npon a plea of not guilty. Each pleaded not guilty and, 
upon conviction, was sentenced to die.

1 Albert Bobby Childs is a 46 year old Negro man. Charged 
with the crimes of rape and burglary, he pleaded not guilty, was 
convicted and sentenced to death by a jury in the Superior Court 
of Buncombe County in November, 1965. His conviction and sen­
tences of death were affirmed on appeal, State v. Childs, 269 N. C. 
307, 152 S. E. 2d 453 (1967). In June, 1967, he filed a petition 
for a post-conviction hearing in the Superior Court. He raised an 
issue under United States v. Jackson, infra, which the Superior 
Court resolved by ruling that Jackson was inapplicable and that 
his death sentence was constitutional. The Court of Appeals of 
North Carolina refused to review the Superior Court on certiorari 
and Childs thereafter filed a petition for certiorari in this Court 
which is now pending. Childs v. North Carolina, 0. T. 1969, No. 
25 Misc.

2 Marie Hill is a 17 year old Negro girl. Charged with the crime 
of murder, she pleaded not guilty, was convicted and sentenced 
to death by a jury in the Superior Court of Edgecombe County 
in December, 1968. She now has an appeal pending in the Supreme 
Court of North Carolina wherein she urges that her death sentence 
is void as a penalty on the exercise of her constitutional rights. 
State v. Hill, No. 2, Pall Term, 1969.

3 Robert Lewis Roseboro is a 16 year old Negro boy. Charged
with the crime of murder, he pleaded not guilty, was convicted 
and sentenced to death by a jury in the Superior Court of Cleve­
land County in May, 1969. In his pending appeal in the Supreme 
Court of North Carolina, he urges the unconstitutionality of his 
sentence of death on grounds identical to those asserted by Marie 
Hill. State v. Roseboro, No. ______  Pall Term, 1969.



3

Each is now challenging the death sentence imposed upon 
him as a penalty attached to the exercise of his constitu­
tional rights to plead not guilty and to be tried by a jury, 
invoking United States v. Jackson, 390 U. S. 570 (1968). 
The United States Court of Appeals for the Fourth Cir­
cuit has vindicated this constitutional contention in Alford 
v. North Carolina, No. 50, by holding that the capital pun­
ishment provisions of North Carolina law are indeed un­
constitutional by force of Jackson. The State bases its 
appeal to this Court upon the proposition—not necessary 
to decision of the case below or here, but nevertheless 
strongly urged in North Carolina’s jurisdictional state­
ment and brief—that the Fourth Circuit erred in this con­
stitutional decision, which would have the effect that amici s 
death sentences could not be carried out.4 Amici, therefore,

4 Amici’s position is that the death sentences imposed upon them, 
under a procedure that taxed their constitutional rights to defend 
with the penalty of death, are unconstitutional. In that regard, 
they urge that the Supreme Court of North Carolina was plainly
wrong when it held in State v. Atkinson, ------  N. C. - , 167
S. B. 2d 241 (1969) that the effect of a declaration of the uncon­
stitutionality of the North Carolina capital statutory scheme under 
Jackson would be to eliminate the provision whereby capital de­
fendants could save their lives by pleading guilty, rather than to 
invalidate death sentences imposed upon defendants who entered 
not guilty pleas. This is so because, by whatever state-law “sepa­
rability” doctrines North Carolina seeks to correct the constitu­
tional vice of its statutory scheme for the future, no notion of 
“ separability” can change the unconstitutional choices offered by 
that scheme in the past. Guilty pleas at the time amici were re­
quired to plead were lawful and were regularly being accepted by 
the courts of North Carolina. There was then no legal impedi­
ment to amici’s proffering guilty pleas which, upon acceptance by 
the court, would have assured them immunity from the death 
penalty. Nothing which the State of North Carolina may announce 
ex post facto can effect in any way this statutory pattern that 
confronted amici when on trial for their lives. No ruling now can 
unwrite the statutes that then confronted them, disestablish the 
options unconstitutionally presented for their choice, unmake the



4

have a life-or-death interest in the appeal, since any deci­
sion that would reverse the Fourth Circuit by holding 
Jackson inapplicable in North Carolina would thereby de­
stroy the promise of life which Alford has held out to them.

Statement

These two cases present a common question for decision: 
in what circumstances a guilty plea to a capital charge 
must be set aside on the ground that it is “ involuntary,” 
improperly coerced by the threat of the death penalty if 
the defendant elects to plead not guilty and is convicted. 
In North Carolina v. Alford, No. 50, the Court of Appeals 
for the Fourth Circuit found as a fact that the defendant’s

choice they made, or diminish the significance of that choice. All 
that any court can do at this point in time is to relieve persons 
condemned under this scheme from the unconstitutional conse­
quence of the unconstitutional procedure under which they were 
sentenced to death—that is, the death sentence. See the petition 
for writ of certiorari in Forcella and Funicello v. New Jersey, 
0. T. 1969, No. 18 Misc., pp. 35-37.

We add that it seems plain to us, contra the reasoning in State 
v. Atkinson, supra, that amici have standing to claim the benefits 
of Jackson. A plainer instance of standing, indeed, could hardly 
be imagined: amici are challenging sentences of death imposed 
upon them under an unconstitutional statute as penalties for the 
exercise of constitutional rights. That they resisted the pressure 
of threatened death and exercised their constitutional rights at 
the jeopardy of their lives is hardly a ground for denying them 
standing to complain when their lives are taken in consequence. 
See State v. Atkinson, supra, 167 S. B. 2d, at 259-260. If this 
proposition was at all debatable prior to this Court’s decision in
North Carolina v. Pearce, ------  U. S. -----, 23 L. Ed. 2d 656
(1969), it is no longer. See Pope v. United States, 392 U. S. 651 
(1968) (per curiam) ; Petition for Writ of Certiorari in Childs 
v. North Carolina, 0. T. 1969, No. 25 Misc., pp. 23-25; Petition 
for Writ of Certiorari in Forcella and Funicello v. New Jersey, 
supra, pp. 29-35.



5

plea was involuntary, the undisputed evidence showing that 
“he pleaded guilty . . .  to avoid possible imposition of the 
death penalty,” 405 F. 2d 340, 348 (4th Cir. 1968). In 
Parker v. North Carolina, No. 268, the Court of Appeals 
of North Carolina affirmed the denial of a petition for post- 
conviction relief which contended that the defendant had 
been coerced into pleading guilty by the threat of the death 
penalty.

The defendants5 in each of these cases rely heavily on 
United States v. Jackson, 390 U. S. 570 (1968), and Pope 
v. United States, 392 U. S. 651 (1968) (per curiam), in 
which this Court invalidated the death penalty provisions 
of the Federal Kidnaping Act and the Federal Bank Bob­
bery Act respectively. Those statutes were invalidated be­
cause, by allowing a defendant who pleaded guilty (or 
waived jury trial) to escape the risk of the death penalty, 
they “needlessly encourage [d ]” (390 U. S., at 583) waiver 
of the constitutional rights to plead not guilty and have a 
jury trial. The Court of Appeals in Alford began its con­
stitutional analysis with a determination that North Caro­
lina’s death penalty statutes—which like the federal stat­
utes in Jackson allowed avoidance of any risk of the death 
penalty by a plea of guilty—were unconstitutional. North 
Carolina has vigorously challenged that conclusion in this 
Court. Its position that Jackson does not invalidate the 
North Carolina capital sentencing scheme has been sus­
tained not only by the State’s Court of Appeals in Parker, 
but also by the North Carolina Supreme Court in State v. 
Peele, 274 N. C. 106, 161 S. E. 2d 568 (1968); State v.

5 We use the term “ defendant” throughout to refer to the defen­
dant in the original criminal proceeding—the appellee in Alford 
and the petitioner in Parker.



6

Spence, 274 N. C. 536, 164 S. E. 2d 593 (1968); State v. 
Atkinson,------ N. C. --------, 167 S. E. 2d 241 (1969).

It bears noting that the constitutionality of the North 
Carolina death penalty statutes is not necessarily involved 
here; the ultimate question presented is simply whether 
the guilty pleas of Alford and Parker were “ voluntary.” 
A  plea may obviously be involuntary even though the statu­
tory setting in which it was entered is constitutional; con­
versely, it is perfectly possible that a defendant might, for 
reasons having nothing to do with a desire to avoid the 
death penalty, enter a voluntary plea in a jurisdiction in 
which the death penalty statutes suffer from a Jackson- 
like infirmity. However, the fact is that the North Caro­
lina statutes are unconstitutional under Jackson, and that 
circumstance plays a critical part in our analysis of these 
cases. For that reason—and because amici’s lives may 
literally depend upon the recognition that the death penalty 
statutes of North Carolina are unconstitutional—we dis­
cuss the constitutionality of those statutes in Part I. In 
Part II, we consider the specific question presented in these 
cases—namely, whether the defendant who has pleaded 
guilty in a capital case may have that plea set aside if it 
can be shown that the plea was motivated by fear that the 
death penalty would be imposed if he stood trial.

Summary o f  Argument

The death penalty provisions of North Carolina law are 
unconstitutional under United States v. Jackson, 390 U. S. 
570 (1968), because only a defendant who pleads not guilty 
may be sentenced to die. Such a scheme needlessly en­
courages guilty pleas and penalizes those choosing to ex-



7

ereise their constitutional rights to deny and contest guilt. 
This conclusion is not disturbed because defendants do not 
have an absolute right to plead guilty under North Caro­
lina practice for neither did defendants under the federal 
procedure invalidated in Jackson. No more pertinent is 
the fact that in North Carolina—unlike the federal pro­
cedure before the Court in Jackson—a defendant cannot 
also avoid the death penalty by waiving jury trial on a 
plea of not guilty. Jackson condemned undue pressures 
upon Fifth as well as Sixth Amendment rights; and a 
statutory scheme which informs a defendant that to es­
cape all risk of death he must plead guilty, thereby waiv­
ing both his right to defend and his incidental right to 
jury trial, is more, not less, obnoxious to the Constitution 
than the practice that Jackson invalidated.

The Constitution requires that a guilty plea must be 
“voluntary” to be valid. Under this principle, certain kinds 
of pressures and inducements to plead guilty are deemed 
so inherently coercive as to be impermissible as a matter 
of law. The threat of execution, suspended if a guilty plea 
is interposed, is such an inducement. Where by statute the 
state offers those entering a plea of guilty immunity from 
the death penalty, pleas entered under the statute are sus­
pect and must be set aside unless (1) it affirmatively ap­
pears from the record of the original proceedings that the 
plea was motivated by permissible considerations (Boykin
v. Alabama,------ U. S .------- , 23 L. Ed. 2d 274 (1969)); or,
alternatively, (2) the plea is determined to have been mo­
tivated by considerations other than threat of the death 
penalty at a proper evidentiary hearing at which the bur­
den of proof is imposed upon the State.



8

A R G U M E N T

I.

A Statutory Scheme Which Subjects to the Risk o f  
the Death Penalty Only Those Defendants W ho Elect to 
Stand Trial on the Issue o f  Guilt, and Which Forbids 
the Imposition o f  Death Upon Those Defendants Who 
Waive Their Constitutional Rights to Deny and Contest 
Guilt, Is Unconstitutional.

A complete description of the North Carolina statutory 
scheme at issue here is set out in the petition for a writ 
of certiorari filed in Childs v. North Carolina, 0. T. 1969, 
No. 25 Misc., at pp. 16-17. It will suffice to say that in 
North Carolina, a defendant who pleads not guilty to a 
capital charge may be sentenced to death in the discretion 
of the jury upon conviction. In contrast, the defendant 
who waives the right to trial and pleads guilty—with the 
approval of the court and prosecution—wholly avoids the 
death penalty, and the punishment is automatically fixed 
at life imprisonment. N. C. Gen. Stat. §15-162.1.

As in Jackson, defendants may thus avoid the death 
penalty in a capital case by waiving the constitutional 
right to deny and contest guilt—and with it all of the 
constitutionally guaranteed procedural protections sub­
sumed within the right to trial. In Jackson, this Court 
was confronted with a comparable legislative scheme, un­
der which the defendant could avoid the legislatively au­
thorized death penalty by waiving either or both of two 
constitutional rights: (1) the Fifth Amendment right not 
to plead guilty, to deny and contest guilt; and (2) the Sixth 
Amendment right to a trial by jury. This scheme was held 
unconstitutional:



9

“ The inevitable effect of any such provision is, of 
course, to discourage assertion of the Fifth Amend­
ment 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. But, as the Government 
notes, limiting the death penalty to cases where the 
jury recommends its imposition does have another 
objective: It avoids the more drastic alternative of 
mandatory capital punishment in every ease. In this 
sense, the selective death penalty procedure established 
by the Federal Kidnaping Act may be viewed as 
ameliorating the severity of the more extreme punish­
ment that Congress might have wished to provide.

“ The Government suggests that, because the Act 
thus operates ‘to mitigate the severity of punishment,’ 
it is irrelevant that it ‘may have the incidental effect 
of inducing defendants not to contest in full measure.’ 
We cannot agree. Whatever might be said of Con­
gress’ objectives, they cannot be pursued by means 
that needlessly chill the exercise of basic constitu­
tional rights. . . . The question is not whether the 
chilling effect is ‘incidental’ rather than intentional; 
the question is whether that effect is unnecessary and 
therefore excessive. In this case the answer to that 
question is clear. . . . Whatever the power of Congress 
to impose a death penalty for violation of the Federal 
Kidnaping Act, Congress cannot impose such a pen­
alty in a manner that needlessly penalizes the asser­
tion of a constitutional right. See Griffin v. California, 
380 U. S. 609.” {Id. at 581-83.)



10

There may be identified four arguments which have been 
advanced in various quarters by those seeking to dis­
tinguish and avoid United States v. Jackson as respects 
death penalty provisions like North Carolina’s.6 The 
fountainhead of these arguments is the opinion of the 
New Jersey Supreme Court in State v. Forcella, 52 N. J. 
263, 245 A. 2d 181 (1968), whose extremely restrictive 
interpretation of Jackson is presently pending for review 
here on a petition for certiorari sub nom. Forcella and 
Funicello v. New Jersey, 0. T. 1969, No. 18 Mise.

(1) It is argued that the challenged provisions are 
“primarily for the benefit of a defendant” (State v. Peele, 
274 N. C. 106, 161 S. E. 2d 568, 572 (1968); see also Brief 
for Appellant, North Carolina v. Alford, No. 50, at p. 8), 
and are designed to operate “ to the benefit of defendants 
as a group. The purpose is humane, and so is its overall 
impact.” State v. Forcella, 52 N. J. 263, 280, 245 A. 2d 181, 
190 (1968).

(2) Defendants in North Carolina do not have an abso­
lute right to plead not guilty and thereby avoid the pos­
sible imposition of the death penalty. As in New Jersey, 
a plea that would escape the death penalty may be ac­
cepted only by leave of the prosecution and the court. This, 
the New Jersey Supreme Court thought, distinguishes 
state practice from the federal where (again, as that court 
viewed it) a capital defendant “has a ‘right,’ in a realistic 
sense, to plead guilty.” Id. 52 N. J., at 279. See also State 
v. Peele, supra, 161 S. E. 2d, at 572 (“ The State, acting 
through its solicitor, may refuse to accept the plea, or the 
judge may decline to approve it.” ).

6 See note 9, infra.



11

(3) The New Jersey Supreme Court also argued that, 
because under the New Jersey-North Carolina procedure, 
a waiver only of the right to a jury trial (by pleading not 
guilty and submitting to court trial) is not possible, the 
Sixth Amendment is not burdened by the death penalty. 
Only the Fifth Amendment right not to plead guilty and 
to deny and contest guilt is taxed with the risk of a death 
sentence. State v. Forcella, supra, 52 N. J., at 271-275. 
Although recognizing that this Court’s opinion in Jackson 
plainly referred to an infringement of both the Fifth and 
Sixth Amendments, the New Jersey Supreme Court con­
cluded that “ the two propositions were . . . intertwined, 
thus suggesting that not all members of the majority were 
ready to say that a statute which did no more than limit 
the penalty upon acceptance of a guilty plea must violate 
the Fifth Amendment.” Id., 52 N. J. at 272. Jackson is 
thus reducible, the court said, to a determination that “ the 
federal statute obviously ran afoul of the Sixth Amend­
ment.” Id., 52 N. J., at 272.

(4) The North Carolina Supreme Court’s opinion in 
State v. Peele, supra, urges that under the Federal Kid­
naping Act, “ the law fixes imprisonment in the peniten­
tiary, but provides that the jury may impose the death 
penalty.” 161 S. E. 2d, at 572. This is supposedly to be 
construed with the North Carolina statute which, as the 
court viewed it, “provides that the death penalty shall be 
ordered unless the jury, at the time it renders its verdict 
of guilty . . . fixes the punishment at life imprisonment.” 
Id.

We turn to an examination of each of these four argu­
ments against the application of Jackson.



12

(1) The Benevolent Intent of the Legislature. It is not 
necessary to question the conclusion of the North Carolina 
Supreme Court that the statutory scheme which permits 
a defendant to avoid the death penalty by pleading guilty 
was conceived for the benefit of defendants generally. Nor 
do we doubt the statement of the New Jersey Supreme 
Court that the similar provisions of that State’s law were 
intended as a humane procedural device. But this Court’s 
analysis in Jackson began with a recognition that the 
same might be said of the procedure imposed by the Fed­
eral Kidnaping Act, whose sentencing provisions “ may 
be viewed as ameliorating the severity of the more extreme 
punishment that Congress might have wished to provide.” 
390 U. S. at 582. The Court’s rejection of the legislative 
motive as a basis for upholding these procedures was 
nonetheless unequivocal:

“Whatever might be said of Congress’ objectives, they 
cannot be pursued by means that needlessly chill the 
exercise of basic constitutional rights. Cf. United 
States v. Robel, 389 U. S. 258; Shelton v. Tucker, 364 
U. S. 479, 488-89. The question is not whether the 
chilling effect is ‘incidental’ rather than intentional; 
the question is whether that effect is unnecessary and 
therefore excessive. In this case, the answer to that 
question is clear. The Congress can of course mitigate 
the severity of capital punishment. The goal of limit­
ing the death penalty to cases in which a jury recom­
mends it is an entirely legitimate one. But that goal 
can be achieved without penalizing these defendants 
who plead not guilty and demand jury trial. . . . 
Congress cannot impose such a penalty in a manner



13

that needlessly penalizes the assertion of a constitu­
tional right. See Griffin v. California, 380 U. S. 609.” 
(Id., at 582-83.)

Jackson, then, squarely holds that the humanitarian mo­
tives of the legislature do not save a statutory scheme 
which operates to penalize “ defendants who plead not guilty 
and demand jury trial.” Id.

(2) The Plea of Guilty Can Only Be Made With the 
Consent of the Court.

The North Carolina and New Jersey practice, in theory 
at least,7 confers upon the trial judge the power to 
reject the defendant’s plea, thus forcing him to stand trial 
for his life. This, it is said, distinguishes those statutory 
procedures from the federal practice condemned in Jack- 
son. That conclusion supposes what is not in fact the case, 
for under federal practice it is clear that the consent of the 
trial judge (and, for that matter, the prosecutor) is re­
quired for either a guilty plea or a jury waiver in a Kid­
naping Act case. See United States v. Jackson, supra, at 
584; Singer v. United States, 380 U. S. 24 (1965); Lynch 
v. Overholser, 369 U. S. 705, 719 (1962); see also United 
States v. Cox, 342 F. 2d 167, 190-193 (5th Cir. 1965) (Wis­
dom, J., concurring).

The point, of course, is that the judge’s power to reject 
the defendant’s life-assuring plea and its incidental waiver

7 The opinion of Justice Jacobs and Hall, dissenting in State 
v. Forcella, supra, 52 N. J. at 294, tells us what the majority of 
the court in that case neither affirms nor denies—namely, that 
the theoretical power of New Jersey trial judges to reject a 
proffered non vult plea is “seldom exercised where the prosecutor 
has recommended its acceptance.”



14

of federal rights is simply irrelevant. Even if North Caro­
lina and New Jersey trial judges may and occasionally do 
reject the plea, the defendant is still encouraged to attempt 
or offer to plead guilty on the hope that his plea will be 
accepted and his salvation thus secured. On the one hand, 
“ the defendant convicted by a jury automatically incurs 
a risk that the same jury will recommend the death pen­
alty . . . ”  ( United States v. Jackson, 390 U. S. at 573, n. 
6 ); on the other, he “ completely escapes the threat of capi­
tal punishment unless the trial judge makes an affirmative 
decision” (id.) to subject him to it by rejecting his offer 
to plead guilty. As Jackson makes unmistakably clear, 
this differential risk of capital punishment is unconstitu­
tional.

(3) The Waiver of Jury Trial Alone Does Not Avoid the 
Possible Imposition of the Death Penalty. In North Caro­
lina and New Jersey, the defendant who pleads not guilty 
to a capital crime cannot avoid the possible imposition of 
the death penalty by waiving his right to a jury trial, as 
could a defendant pleading not guilty under the Federal 
Kidnaping Act. The New Jersey Supreme Court thought 
this enough to distinguish Jackson even though North 
Carolina and New Jersey defendants could avoid any pos­
sibility of the death penalty—as could federal defendants 
under the Kidnaping Act—by entering a plea of guilty. 
State v. Forcella, supra, at 269-270. This narrow view of 
Jackson has not, to our knowledge, found acceptance in any 
other court. It is inconsistent with the decision of the 
South Carolina Supreme Court in State v. Harper, 162 
S. E. 2d 712 (1968),8 and, of course, with that of the Fourth

8 The South Carolina Supreme Court found that the statutory 
provisions challenged in Harper allowed a defendant to escape the



15

Circuit in Alford. I f the distinction taken by the New 
Jersey Court prevails, it will deprive Jackson of all mean­
ing with respect to the capital sentencing practices of 
the states.9 But it cannot prevail without distortion of the 
principles discussed in Jackson and of the constitutional 
values on which that decision rests.

To begin with, the premise of the New Jersey Supreme 
Court that only the Fifth Amendment right to deny and 
contest guilt, and not the Sixth Amendment right to jury 
trial, is involved is simply incorrect. By pleading guilty—• 
the only method in North Carolina and New Jersey by

risk of the death penalty by pleading guilty with the approval of 
the trial court. On a not guilty plea, a jury might impose capital 
punishment. The question of waiver of jury trial on the plea of 
not guilty was not involved. This scheme, the Court held, was 
condemned by Jackson; and it resolved the constitutional dilemma 
by voiding the provision which excluded the death penalty on a 
guilty plea. Harper arose, as did Jackson, on a pretrial motion; 
thus, the South Carolina court was not required to decide the 
implications of its holding for condemned men who, like amici, 
pleaded not guilty and were sentenced to death during the period 
when they might still have escaped that sentence by a guilty plea.

9 Our research has disclosed no States in which the defendant 
may avoid the death penalty by waiving his right to a jury trial 
and accepting court trial on a not guilty plea. There are to our 
knowledge seven states in which a capital defendant may avoid 
the death penalty by pleading guilty: they are (1) Louisiana 
(La. Code of Grim. Proc. Art. 557); (2) Mississippi (Miss. Code 
§§2217, 2536; see Bullock v. Harpole, 102 So. 2d 687 (1958)); 
(3) New Jersey (N. J. S. A. §§2A:113-3, 113-4); (4) New York 
(N. Y. Code of Grim. Proc. §3321) ; (5) North Carolina (N. C. 
Gen. Stat. §15-162.1) ; (6) South Carolina (S. C. Code §17-553.4 
(1967) Cum. Supp.); and (7) Wyoming (Wyo. Stat. §7-195) 
(kidnaping). See also N. H. Rev. Stat. Ann. §§585.4, 585.5. 
We are unsure of the law in the states of Nebraska, see Neb. Rev. 
Stat. §28-417 (kidnaping) ; Washington, see Rev. Code of Wash., 
Title 9, §9.52.010 (kidnaping) ; and Texas, see Vernon’s Ann. 
Code of Crim. Proc. of Texas, Art. 1.14, as amended, Tex. Acts 
1967, p. 1733, ch. 659, §1, effective August 28, 1967.



16

which the defendant can avoid all risk of the death penalty 
—the defendant waives all procedural protections which the 
Constitution affords defendants in a criminal trial (.Mc­
Carthy v. United States, 394 U. S. 459 (1969)), among 
them the right to trial by jury. This point was recently 
emphasized by the Court in Boykin v. Alabama, —— U. S. 
------ , 23 L. Ed. 2d 274, 279 (1969):

“ Several federal constitutional rights are involved 
in a waiver that takes place when a plea of guilty is 
entered in a state criminal trial. First is the privilege 
against compulsory self-incrimination guaranteed by 
the Fifth Amendment and applicable to the States by 
reason of the Fourteenth. Malloy v. Hogan, 378 U. S. 
1. Second is the right to trial by jury. Duncan v. 
Louisiana, 391 U. S. 145. Third, is the right to confront 
one’s accusers. Pointer v. Texas, 380 U. S. 400.’’

Second, the North Carolina and New Jersey procedures 
are, if anything, more destructive of constitutional rights 
than that condemned in Jackson. For the federal defen­
dant could avoid the death penalty by waiving only his 
Sixth Amendment right to jury trial. He might thereby 
save his life and yet have some trial—before a judge—at 
which he could exercise his Fifth Amendment right to 
contest guilt. North Carolina and New Jersej" offer no 
such middle ground; their price for avoiding the death 
penalty is a waiver of the right to deny and contest guilt, 
and thus of all procedural protections (including jury 
trial) subsumed within that right.

But even if it could be said that the right to jury trial 
is not infringed when the whole of the right to deny and 
contest guilt is impaired, we submit that there is no basis 
for concluding that the rule of Jackson does not apply



17

whenever a State encourages a waiver of the Fifth Amend­
ment right not to plead guilty by taxing a not guilty plea 
with the risk of a death sentence. The Court’s careful 
opinion in Jackson relies upon the Fifth Amendment 
equally with the Sixth Amendment, and the very logic of 
the Jackson decision forbids any distinction between Sixth 
and Fifth Amendment rights in a fashion which disparages 
the latter. Palpably, any holding that a procedure which 
permits avoidance of the death penalty by waiver of the 
right not to plead guilty is constitutional, although a com­
parable procedure involving only waiver of the right to 
jury trial is not, would misconceive the relative importance 
of the two federal constitutional rights involved in Jackson.

The right not to plead guilty, and the correlative right 
to a hearing at which guilt may be contested, is of the 
very essence of due process of law. Whatever view one 
may hold of the Fourteenth Amendment, and of the de­
gree to which it makes applicable to the States the various 
substantive provisions of the Bill of Rights, there has never 
been any doubt that an opportunity to a hearing at which 
to contest guilt is a constitutional essential.

In contrast, it was not until last year that this Court 
finally declared that the right to a trial by jury in a crim­
inal case was among those rights deemed so essential to 
civilized jurisprudence that it must be made applicable to 
the States through the Fourteenth Amendment. Duncan v. 
Louisiana, 391 U. S. 145 (1968); Bloom v. Illinois, 391 U. S. 
194 (1968). But the Court also held that the rule of these 
cases would not be retroactively applied (De Stefano v. 
Woods, 392 U. S. 631 (1968)), a ruling which emphasized 
that, however desirable the right to jury trial, in general, 
a fair adjudication of guilt could occur without a jury.



18

Quoting from Duncan in Be Stefano, the Court said: “We 
would not assert, however, that every criminal trial—or 
any particular trial—held before a judge alone is unfair 
or that a defendant may never be as fairly treated by a 
judge as he would be by a jury.” 392 TJ. S. at 633-634.

One can therefore fairly conclude only that the suggested 
distinction of Jackson reflects either a convoluted appre­
ciation of the relative importance of the rights given by 
the Fifth and Sixth Amendments or a perverse unwilling­
ness to comply with an unwelcome decision of this Court. 
As the dissenting judges in Forcella wrote: “ In the field of 
federal constitutional law, the decisions of the United 
States Supreme Court are of course binding upon all state 
courts. Our clear responsibility is to apply those decisions 
with due regard for their tenor, principles and goals in 
analogous situations with the aim of determining a matter 
as we conscientiously believe that Court would if the case 
were before it.” Id., 52 N. J. 294-295.10

10 The New Jersey Supreme Court, in rejecting Forcella’s con­
tentions, allowed that a contrary ruling would of necessity result 
in the invalidation of “plea bargaining.” Id. 52 N. J., at 275-276. 
The argument, while manifestly uncompelling, is at least familiar; 
the Government’s submission in Jackson included the identical 
point. Brief for the United States, United States v. Jackson, 0. T. 
1967, No. 85, pp. 6-7. The argument, we think, is obviously one 
which manifests disagreement with the Jackson holding, not dis­
tinction of it.

In any event, the issue of the constitutionality of plea bargain­
ing in general is no more presented here than in Jackson or in 
Pope v. United States, 392 U. S. 651 (1968). We therefore see 
no need to labor the obvious point that a procedure which assures 
a life sentence to the defendant who waives his rights and pleads 
guilty, while it threatens with death the defendant who dares to 
exercise those rights, is an entirely different animal from the 
time-honored practice of plea bargaining in non-capital cases. 
Whatever the reach of the evolving doctrine forbidding the impo­
sition of a penalty on the exercise of constitutionally guaranteed 
rights, surely that doctrine forbids what North Carolina and New



19

The controlling point is simply that, with regard to both 
the Fifth and Sixth Amendments, the North Carolina and 
New Jersey practices are functionally identical to the fed­
eral procedure which this Court held violative of the Con­
stitution in United States v. Jackson. Each “needlessly 
encourages” (390 U. S., at 583) pleas by subjecting the 
accused who seeks to have his guilt determined by jury- 
trial to an “ increased hazard” {id., at 572) of capital pun­
ishment. Each “ discourage[s],” “ deter[s]” and “ chill[s]” 
exercise of the interdependent rights not to plead guilty 
and to be tried by a jury. Id. at 581. And each thereby 
“needlessly penalizes the assertion of a constitutional 
right” {id., at 583).

This conclusion follows a fortiori from the recent decision
in North Carolina v. Pearce,------ - U. S . ------ , 23 L. Ed. 2d
656 (1969). There the Court dealt with the problem of in­
creased sentences following a successful appeal and un­
successful retrial. The Court, acknowledging that it had

Jersey have done here. We are not on the penumbra of the un­
constitutional condition-penalty doctrine where it might be said 
that the penalty is relatively insubstantial and further that com­
pelling interests of the State justify its imposition. Here the 
defendant is called upon to bargain his life as a condition to exer­
cising his constitutional rights. As Mr. Justice Frankfurter once 
stated for the Court: “ The difference between capital and non­
capital offenses is the basis of differentiation in law in diverse 
ways in which the distinction becomes relevant.” Williams v. 
Georgia, 349 U. S. 375, 391 (1955). For varying exemplifications 
of the principle, see, e.g., Powell v. Alabama, 287 U. S. 45 (1932) ;  
Stein v. New York, 346 U. S. 156, 196 (1952) ;  Hamilton v. Ala­
bama, 368 U. S. 52 (1961) ; Fay v. Noia, 372 U. S. 391, 439-40 
(1963). Jackson does not require the wholesale invalidation of 
plea bargaining. It does, however, compel a recognition that the 
forfeiture of life is a penalty which may not be imposed on the 
exercise of the fundamental constitutional right to deny and con­
test guilt on a capital charge. See Note, 54 Cornell L. Rev. 448, 
452 (1969).



20

“ never held that the States are required to establish 
avenues of appellate review,” held that once established, 
those avenues must be kept open and free of unreasoned 
distinctions. The Court continued:

“Where . . . the original conviction has been set aside 
because of a constitutional error, the imposition of 
such a punishment, ‘penalizing those who choose to 
exercise’ constitutional rights, ‘would be patently un­
constitutional.’ United States v. Jackson, 390 U. S. 
570, 581. And the very threat inherent in the existence 
of such punitive policy would, with respect to those 
still in prison, serve to ‘chill the exercise of basic con­
stitutional rights.’ Id., at 582. See also Griffin v. Cali­
fornia, 380 U. S. 690; cf. Johnson v. Avery, 393 U. S. 
483. But even if the first conviction has been set aside 
for nonconstitutional error, the imposition of a pen­
alty upon the defendant for having successfully pur­
sued a statutory right of appeal or collateral remedy 
would be no less a violation of due process of law.” 
{Id., at 4605.)11

In these cases, the right to deny and contest guilt—in con­
trast to the right of appeal—is specifically guaranteed by 
the United States Constitution. To subject a defendant to

11 Amici, unlike the defendants in the present eases, did not 
yield to the pressures to waive their right to trial. Bach exercised 
that right and each has been sentenced to death—a sentence which 
might have been avoided at the cost of waiver of their federal 
rights. The question presented in their cases is whether by sub­
jecting them to the death penalty, the state is “ ‘penalizing those 
who choose to exercise’ constitutional rights, [which] ‘would be 
patently unconstitutional.’ ” North Carolina v. Pearce, supra, 
quoting from United States v. Jackson, supra, at 581. That ques­
tion is not presented here and we do not now consider it; it is 
treated extensively in the petitions for certiorari in Forcella (see 
pp. 19-38) and in Childs (see pp. 16-25).



21

a greater penalty because he has exercised that right is 
the more flagrantly unconstitutional.

(4) The Statute Specifies the Death Penalty Unless the 
Jury Affirmatively Recommends a Lesser Sentence.

In some states, North Carolina among them, the perti­
nent statute specifies that the penalty for a capital offense 
shall be death unless the jury affirmatively recommends a 
life sentence. The North Carolina Supreme Court thought 
that that form distinguished such procedures from the fed­
eral one invalidated in Jackson, where the applicable stat­
ute provided for imprisonment unless the jury voted for 
the death penalty.

The North Carolina Supreme Court offered no explana­
tion as to how this might possibly have any bearing on the 
applicability of Jackson’s condemnation of a procedure 
which unduly encourages the waiver of the constitutional 
right to deny and contest guilt, and we can think of none. 
The distinction, we suggest, is entirely semantic.12 Con­
gress in the Kidnaping Act established a selective process 
of making individuating judgments by which juries had 
the option between imposing a death sentence or a sentence 
of life or less. This is exactly the same option given North 
Carolina juries by the North Carolina Legislature; and the 
latter is as unconstitutional as the former. That conclu­
sion does not depend on the phrasing of the jury’s role in

12 If the differences in statutory language were in fact of any 
consequence, then one would expect that a greater percentage of 
North Carolina defendants electing to stand trial would be given 
death sentences than federal capital defendants. The pressure, 
then, to waive the right to deny and contest guilt and seek the 
safe harbor of a guilty plea would be greater in North Carolina 
than in a pre-Jackson Federal Kidnaping Act ease, and the uncon­
stitutionality of North Carolina’s procedures would be a fortiori.



22

deciding upon the sentence. Quite the contrary, it follows 
from the proposition that—however that role may be char­
acterized—any defendant may avoid being subjected to the 
jury’s death-sentencing option—but only at the cost of 
waiving his constitutional rights.

II.

A Guilty Plea, the Making o f  Which Was Substantially 
Motivated by the Threat o f  Imposition o f the Death 
Penalty, Is Involuntary and Cannot Stand.

Introduction

Having concluded that the North Carolina death penalty 
statutes are unconstitutional,13 we are nevertheless impelled 
to acknowledge, as did the Court of Appeals in Alford, 
that the presence of an unconstitutional sentencing system 
such as North Carolina’s does not, of itself, resolve these 
cases. As the Court of Appeals said in Alford, “a defen­
dant who has pleaded guilty when charged with a capital 
offense in North Carolina is not necessarily entitled to 
post-conviction relief as a matter of law.” 405 F. 2d, at 
347. The court recognized that this Court refrained in 
Jackson from holding that every plea of guilty to a Federal

13 It should be noted that, effective March 25, 1969, the N. C. 
Legislature resolved the Jackson problem in its statutory scheme 
by repealing the provision permitting a guilty plea to a capital 
offense and fixing the penalty upon such a plea at life imprison­
ment. N. C. Session Laws, 1969, Ch. 117. See State v. Atkinson,
------N. C .------- , 167 S. E. 2d 241, 258-259 (1969). This resolution
in futnro, of course, can have no effect on the capital sentencing 
provisions in force at the time of these defendants’— and of amici’s 
—prosecutions, or on their constitutional posture. See note 4, 
supra.



23

Kidnaping Act charge was involuntary.14 The question of 
the validity of such guilty pleas is, we submit, one of fact; 
it cannot be resolved other than by a full and fair eviden­
tiary hearing, at which a sensitive and probing analysis 
of the motivations of the plea is made within the frame­
work of the applicable presumptions and rules assigning 
the burden of proof.

We turn now to the issues controlling the pleas chal­
lenged in the cases at bar. In subpart A of this section, we 
discuss the settled requirement that a guilty plea must be 
knowing and “voluntary,” and the application of that princi­
ple to a case in which the threat of the death penalty has 
played a role in eliciting such a plea. In subpart B, we 
offer a suggested approach for testing guilty pleas made 
in cases such as these to determine whether the threat of 
the death penalty has deprived the plea of its voluntary 
quality.

A. The Threat of the Death Penalty May Deprive a Guilty 
Plea of Its Voluntary Character.

This Court has long been concerned (see, e.g., Kercheval 
v. United States, 274 U. S. 220 (1927)) to insure that guilty 
pleas be not made involuntarily. The question of voluntari­
ness of a plea is a federal one (Boykin v. Alabama, ------ -
IJ. S . ------ , 23 L. Ed. 2d 274 (1969), as is any question of
the waiver of federally secured rights. E.g., Douglas v. Ala­
bama, 380 U. S. 415 (1965); Brookhart v. Janis, 384 U. S. 
1, 4 (1966); O’Connor v. Ohio, 385 U. S. 92 (1966). Special

14 “ [T]he fact that the Federal Kidnaping Act tends to discour­
age defendants from insisting upon their innocence and demand­
ing 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.



24

caution regarding the guilty plea is entirely fitting, for a 
guilty plea constitutes a waiver of all constitutionally se­
cured procedural guarantees (see pp. 15-16, supra) ;  thus 
this Court recently observed that a guilty plea “ demands 
utmost solicitude of which courts are capable” (Boykin v. 
Alabama, supra, at 280) to ensure that the waiver is truly 
voluntary.

The cases prohibiting involuntary pleas do not confine 
themselves to coercion by physical force or threats of vio­
lence; the inducement deemed so great to vitiate a plea 
“ can be ‘mental as well as physical;’ ‘the blood of the 
accused is not the only hallmark of an unconstitutional in­
quisition.’ Blackburn v. Alabama, 361 U. S. 199. . . . Subtle 
pressures (Leyra v. Denno, 347 U. S. 556; Haynes v. Wash- 
ington, 373 U. S. 503) may be as telling as coarse and 
vulgar ones.” Garrity v. New Jersey, 385 U. S. 493, 496 
(1967).

Some pressures are deemed too great to permit their in­
trusion into the process by which the defendant determines 
whether to exercise his constitutional right to deny and 
contest guilt or to enter a plea of guilty. The prospect of 
an apparently unavoidable deprivation of constitutional 
rights at trial, for example, may be sufficient to destroy the 
voluntariness of the plea, as where a defendant pleads guilty 
in the face of a trial wherein he is threatened by an un­
constitutionally obtained confession. E.g., United States 
ex rel. Ross v. McMann, 409 F. 2d 1016 (2nd Cir. 1969) 
(en banc); United States ex rel. Collins v. Maroney, 382 
F. 2d 547 (3rd Cir. 1967); Smith v. Wainwright, 373 F. 2d 
506 (5th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 
940 (5th Cir. 1967); Murphy v. Wainwright, 372 F. 2d 942 
(5th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (9th Cir.



25

1966); Ellis v. Boles, 251 F. Supp. 1021 (N. D. W. Va. 
1966); United States ex rel. Cuevas v. Bundle, 258 F. Supp. 
647 (E. D. Pa. 1966). Misrepresentations by the prosecutor 
(for example, as to his ability to insure the defendant a 
particular sentence) are another example of circumstances 
which will warrant setting aside a plea of guilty. E.g., 
Machibroda v. United States, 368 U. S. 487 (1962); Walker 
v. Johnston, 312 IT. S. 275 (1941); Dillon v. United States, 
307 F. 2d 445, 449 (9th Cir. 1962); Teller v. United States, 
263 F. 2d 871 (6th Cir. 1959). The same is true of unkept 
judicial promises of leniency. E.g., Smith v. United States, 
321 F. 2d 954 (9th Cir. 1963); United States ex rel. Elksnis 
v. Gilligan, 256 F. Supp. 244 (S. D. N. Y. 1966) (Weinfeld, 
J .) ; cf. Workman v. United States, 337 F. 2d 226 (1st Cir. 
1964).

Equally impermissible are prosecutorial threats to prose­
cute the spouse or a close friend of the defendant unless 
he pleads guilty. Johnson v. Wilson, 371 F. 2d 911 (9th 
Cir. 1965); United States v. Glass, 317 F. 2d 200 (4th Cir. 
1963); Conley v. Cox, 138 F. 2d 786 (8th Cir. 1943); cf. 
Teller v. United States, supra. Indeed, statements of the 
trial judge to the effect that if the defendant elects to stand 
trial and is convicted, he will be given the maximum sen­
tence have been found to invalidate a guilty plea as a mat­
ter of law. Euziere v. United States, 249 F. 2d 293 (10th 
Cir. 1957); United States v. Tateo, 214 F. Supp. 560 (S. D. 
N. Y. 1963).

Of course guilty pleas, properly interposed, are an essen­
tial ingredient of the efficient administration of justice. 
What these cases teach, however, is that certain kinds of 
inducements are too pressureful, too insensitive of the right 
of defendants to elect freely whether or not to stand trial.



26

Those inducements, for that reason, do not pass constitu­
tional muster. It is in this context that the role of the death 
penalty must be assessed.

Much of the analysis has already been performed by this 
Court in United States v. Jackson, supra. This Court there 
found that statutes such as North Carolina’s “needlessly 
encourage” (390 U. S., at 583) guilty pleas and, as we show 
in Part I, supra, are unconstitutional. Identification of the 
potentially coercive force of the death penalty in Jackson 
was in accordance with an increasing recognition that the 
risks of standing trial are “made particularly perilous in 
the context of [a] . . .  charge with a possible death penalty.” 
United States ex rel. Ross v. McMann, 409 F. 2d 1016 (2d 
Cir. 1969) (en banc). Accord: Smith v. Wainwright, 373 
P. 2d 506, 507 (5th Cir. 1967) (“ He was told that if he 
pleaded not guilty, the confession would place him in danger 
of the electric chair” ) ; Carpenter v. Wainwright, 372 F. 2d 
942 (5th Cir. 1967); United States ex rel. Cuevas v. Rundle, 
258 F. Supp. 647 (E. D. Pa. 1966).

It bears emphasis that the constitutionality of a fairly 
administered system of plea bargaining is not implicated 
by a recognition of the coercive quality of the threatened 
imposition of the death penalty. See note 10, supra. All 
that need be determined here is that no defendant may be 
compelled to gamble with his life to secure his constitutional 
right to a trial; the state may not use the death penalty as 
the basis for inducing guilty pleas.

B. Standards for Determining the Validity of a Potentially 
Death Penalty-Induced Guilty Plea=

We begin from the premise that in each of these cases 
the plea was entered within the framework of a statutory 
system of differential sentencing in capital cases which is 
unconstitutional. See Part I, supra. The suspicion is in-



27

evitable, and entirely fitting, that the decision of each de­
fendant to enter a plea of guilty was motivated by a desire 
to take advantage of the differential sentencing scheme 
enacted by the North Carolina Legislature and thereby 
avoid the death penalty. Each of these pleas, then, is con­
stitutionally suspect. See Part 11(A), supra.

Boykin v. Alabama, ——  U. S. ------ , 23 L. Ed. 2d 274
(1969) compels the setting aside of any such plea where 
the record lacks “ an affirmative showing that [the plea] 
was intelligent and voluntary.” Id., at 279. These cases 
are undeniably stronger ones for insisting upon such a 
requirement than was Boykin, in which (as the dissenters 
pointed out, see id. at 281) there was no specific allegation 
that Boykin’s plea was involuntary and, certainly, no de­
fects in the statutory framework within which the plea was 
entered that might raise a presumption (or even suspicion) 
that his plea was other than voluntary. Yet the Court in­
sisted that any guilty plea, constituting as it does a waiver 
of all constitutionally secured procedural safeguards (see 
pp. 15-16, supra), be supported by an affirmative showing 
on the record that the plea was knowing and voluntary.16

16 We do not overlook that this Court has not yet determined 
whether Boykin is to be given retroactive application. However 
that question may be resolved (and presumably Halliday v. United 
States, 394 U. S. 831 (1969) (per curiam) suggests that the 
outcome may well be that it will not be retroactively applied), 
these pleas should not be allowed to stand. Unlike the Boykin 
and Halliday cases, there was here, as we have said, an uncon­
stitutional statutory scheme within which the pleas in each of 
these cases were entered, as a result of which each is presump­
tively bad. These circumstances focus our concern as to the con­
stitutionality of these pleas of guilty far more narrowly than is 
the case as to guilty pleas generally, entered in a less coercive 
framework. While the Court in Halliday could thus conclude that 
the other remedies available to the relatively rare defendant whose 
guilty plea may be invalid offered sufficient protection, the same 
cannot be said in states such as North Carolina where guilty pleas 
in capital eases are presumptively involuntary because of the coer­
cive force of the differential sentencing system.



2 8

In neither of these cases16 does it affirmatively appear from 
the record that the plea was other than impelled by a desire 
to avoid the death penalty, and for that reason neither plea 
should be allowed to stand.

At the least, a defendant who has entered a plea within 
a statutory framework such as North Carolina’s is entitled 
to an evidentiary hearing at which the voluntariness of his 
plea is determined. Conceivably, it might be shown at such 
a hearing that the plea was the product of wholly proper 
considerations. It will not do, however, simply to allow the 
defendant the opportunity to demand such a hearing and 
impose upon him the customary burden of proof imposed 
upon one seeking to set aside a conviction. Here the burden 
must be shifted, for the plea was entered in suspicious 
circumstances that render it presumptively bad. The like­
lihood that it was motivated by improper pressures is so 
great that the burden of showing that it was not must 
fasten upon the State. Cf. Miranda v. Arizona, 384 U. S. 
436 (1966). This approach recognizes the constitutional 
values implicit in Boykin, while leaving it open to the State 
to show that, notwithstanding the inevitable suspicion that 
the plea was the improper product of the unconstitutional 
differential sentencing system, it was in fact motivated by 
different, and permissible, considerations. 16

16 In Alford, the record in the original state proceedings lends 
affirmative support to the contrary proposition, and of course that 
conclusion is fully supported by the collateral proceedings culmi­
nating in the determination of the Court of Appeals that the “in­
centive supplied to petitioner to plead guilty by the North Carolina 
statutory scheme was the primary motivating force to effect tender 
of the plea, especially since throughout the proceedings the peti­
tioner has protested his innocence.” 405 F. 2d, at 349. In Parker, 
there is nothing in the record of the proceedings at which he en­
tered his plea which indicates that the plea was motivated by any­
thing other than a desire to avoid the death penalty.



29

Application of these principles to the facts of the present 
cases leaves no doubt as to the outcome. Alford must be 
affirmed, the court below having affirmatively found after a 
plenary hearing that the plea was motivated “ primar­
ily” to avoid the death penalty and that the defendant had 
throughout insisted upon his innocence. The record amply 
supports this factual finding, and no reason appears for 
this Court to disturb it on appeal. In Parker, it does not 
appear that the courts of North Carolina considered the 
defendant’s claim that his plea was improperly induced by 
the state’s unconstitutional sentencing system in the light 
of the proper standards for trial of that issue suggested 
here. To the contrary, the North Carolina Court of Ap­
peals seems simply to have concluded that the plea was 
voluntary because the North Carolina statute was not un­
constitutional under United States v. Jackson, supra, a con­
clusion which is plainly unsupportable. Thus, the Parker 
case should be vacated and remanded for reconsideration, 
in light of this Court’s determination that the North Caro­
lina statutes provide an unconstitutional inducement to 
plead guilty, for an evidentiary hearing at which the State 
will be required to demonstrate affirmatively the voluntari­
ness of the plea under the appropriate federal constitu­
tional standards, or see it set aside.17

17 Such a holding would not necessarily imply retroactivity of 
United States v. Jackson. Compare note 15, supra. This Court 
would he resting its decision upon the long-settled law of the Con­
stitution that an involuntary guilty plea is invalid. In testing the 
validity of the defendants’ pleas, it would be drawing upon the 
insights and reasoning processes of Jackson, not the legal rule of 
that case, in the same fashion that the Court has applied retroac­
tively the insights of Miranda, see Davis v. North Carolina, 384 
U. S. 737 (1966), albeit not its rule, see Johnson v. New Jersey, 
384 U. S. 719 (1966).

We do not develop this retroactivity question here because—- 
whatever view be taken of the retroactivity of Jackson in guilty- 
plea cases such as those of the defendants in the cases at bar— 
entirely different considerations control the matter of Jackson’s



30

Respectfully submitted,

J ack  G-reenberg 
J ames M . N abrit, III 
M ichael  M eltsner 
N orman  A maker  
J ack  H im m elstein

10 Columbus Circle 
New York, New York 10019

Charles S teph en  R alston 
1095 Market Street 
San Francisco, California 94108

A n t h o n y  Gf. A msterdam

Stanford University School of Law 
Stanford, California 94305

J erome B. F al k , J r .
650 California St., Rm. 2920 
San Francisco, California 94102

J. L e V onne Chambers 
J ames E. F erguson, II 
J ames E. L an n in g

216 West Tenth Street 
■Charlotte, North Carolina

application to persons situated like amici, complaining of death 
sentences which would penalize them for their exercise of con­
stitutional rights. See Petition for Writ of Certiorari in Forcella 
and Funicelio v. New Jersey, supra, at 36-37; see also note 4, 
supra.



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