William J. Brennan, Jr.

“ The Court attempts to submerge the issue of voluntariness of a plea under an unconstitutional capital punishment scheme in a general discussion of the pressures upon defendants to plead guilty which are said to arise from, inter alia, the venerable institution of plea bargaining. The argument appears to reduce to this: because the accused cannot be insulated from all inducements to plead guilty, it follows that he should be shielded from none. ”

“ Of course, whether in a given case the penalty scheme has actually exercised its pernicious influence so as to make a guilty plea involuntary can be decided only by consideration of the factors that actually motivated the defendant to enter his plea. If a particular defendant can demonstrate that the death penalty scheme exercised a significant influence upon his decision to plead guilty, then, under Jackson, he is entitled to reversal of the conviction based upon his illicitly produced plea. ”

“ Since the death penalty provision of the Kidnaping Act remains void, those who resisted the pressures identified in Jackson and after a jury trial were sentenced to death receive relief, but those who succumbed to the same pressures and were induced to surrender their constitutional rights are left without any remedy at all. Where the penalty scheme failed to produce its unconstitutional effect, the intended victims obtain relief; where it succeeded, the real victims have none. ”

“ In some cases where an 'involuntary' surrender has been found, the physical or psychological tactics employed exerted so great an influence upon the accused that it could accurately be said that his will was literally overborne or completely dominated by his interrogators, who rendered him incapable of rationally weighing the legal alternatives open to him. ”

“ While the relaxation of strict logic may be viewed sympathetically if necessary to prevent executions under an unconstitutional penalty scheme, I am at a loss to understand what values are preserved by the curious inversion the Court has brought about.↑ The Court apparently takes comfort from the authorities that it cites for the proposition that a guilty plea entered to avoid a possible death penalty is not involuntary. ”

“ Furthermore, the legislatively ordained penalty scheme may affect any defendant, even one with respect to whom plea bargaining is wholly inappropriate because his guilt is uncertain. [13] Thus the penalty scheme presents a clear danger that the innocent, or those not clearly guilty, or those who insist upon their innocence, will be induced nevertheless to plead guilty. This hazard necessitates particularly sensitive scrutiny of the voluntariness of guilty pleas entered under this type of death penalty scheme. ”

“ In this discussion, I do not consider the case of a death penalty scheme that is not unconstitutional under Jackson.↑ Sophistic arguments cannot alter the fact that this in substance was the effect of the North Carolina penalty scheme. It is contended by North Carolina, for example, that under the state statutes the actual penalty imposed upon conviction was death but that the jury had the power to mitigate punishment to life imprisonment. ”

“ The North Carolina courts have consistently taken the position that United States v. Jackson has no applicability to the former North Carolina capital punishment scheme. [18] Thus, the merits of Parker's contention that his plea was motivated by the unconstitutional death penalty have not been considered by the state courts. I would, therefore, reverse the judgment of the North Carolina Court of Appeals and remand the Parker case to that court for proceedings not inconsistent with the principles elaborated herein. [19]
In 1959 Brady was indicted under the Federal Kidnaping Act. ”