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Judicial suicide or constitutional autonomy? A capital defendant's right to plead guilty.


In 1995, when New York reinstituted the death penalty with much fanfare, it joined only two other states, Arkansas and Louisiana, in forbidding a criminal defendant from pleading guilty when facing the death penalty. (1) However, in reviewing the history of the capital guilty plea, Anglo-American law suggests that an across-the-board prohibition against capital guilty pleas violates the fundamental notion of due process. (2) The right of an accused, even one facing the death penalty, to plead guilty unconditionally to the charges against him was explicitly recognized at common law. (3) It has been widely and almost uniformly acknowledged and honored by state and federal courts since the Colonial period. (4) Further, this right remains protected in the statutes and court decisions of all states but Arkansas, Louisiana, and New York. (5)

The protection of the right to plead guilty offers important and legitimate benefits to capital defendants. This includes autonomy in deciding whether or not to exercise their trial rights guaranteed by the Sixth Amendment. (6) Moreover, the choice to plead guilty spares the capital defendant and his family from the spectacle and ordeal of protracted pretrial and trial proceedings, while focusing a judge's attention on punishment and the defendant's demonstrated acceptance of responsibility. Additionally, a truthful, formal, and public acknowledgment of guilt is a virtue in itself. (7)

Conversely, it is doubtful that any governmental interest continues to legitimize Arkansas, Louisiana, and New York's prohibitions against guilty pleas when the defendant is subject to the death penalty. Procedures permitting, but not requiring, the imposition of a death sentence following a guilty plea do not violate the United States Constitution, and have been adopted by statute in thirty-five of the nation's thirty-eight death penalty jurisdictions. (8) Today there are certain privileges afforded to criminal defendant's that are universal across all state capital punishment statutes, including--defendants' entitlement to the effective assistance of counsel; the requirement that a court may accept a guilty plea only if it is done knowingly and voluntarily; and the provision that a death sentence is discretionary rather than automatic upon conviction. (9) Thus, a defendant who pleads guilty in a capital case is not committing "judicial suicide." (10)

Following a historical discussion of a criminal defendant's right to plead guilty to a capital offense at common law as well as during the colonial era up until the adoption of the Fourteenth Amendment, this article will examine the prohibition against capital guilty pleas and its current validity in New York, Arkansas, and Louisiana. (11) This article will conclude that since this prohibition is at odds with "both traditional and modern practice," where the state's interest in it is modest at best, it "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" and thus violates due process. (12)


As early as the eleventh century in England, a thief caught in the act could "confess," then be condemned and either pay a fine or forfeit his life. (13) Writing in 1678, Sir Matthew Hale recognized three possible pleas to a felony charge: demurrer or confession, plea in abatement, and plea of general issue or not guilty. (14) Regarding the first plea, he wrote: "[i]t amounts to a Conf[ession] of the Indictment, as laid; and therefore if the Indictment [is] good, Judgment again[st] the Pri[soner], and Execution." (15) Other leading legal commentators of this period recognized the common law "confession" or guilty plea. (16) As one modern court observed, "`[u]ndoubtedly, at common law, a defendant of competent understanding, duly enlightened, had the right to plead guilty to a capital crime instead of denying the charge.'" (17)

In the case of crimes punishable by death--which included virtually all felonies--guilty pleas were entered, although rather infrequently. (18) In England during common law times, judges were reluctant to accept a guilty plea in a capital case, and often encouraged defendants to rethink such a course of action. (19) As Blackstone observed, a court was "usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and ... [would] generally advise the prisoner to retract it, and plead to the indictment." (20) Such hesitancy, however, stemmed from concerns about coerced, uninformed, or otherwise involuntary guilty pleas (21) and the mandatory nature of the death penalty for many felony offenses at that time. (22)


The framers of the Constitution explicitly provided that a defendant could be convicted of treason, which was originally a capital offense, by pleading guilty. (23) The earliest case law from this country likewise recognized that an accused could enter a plea of guilty even in a capital case. (24) In Commonwealth v. Battis, (25) an 1804 decision frequently cited by later courts and commentators, the defendant insisted on pleading guilty to murder, following warnings by the Supreme Judicial Court of Massachusetts (then the trial court for capital cases) "of the consequence of his plea, and that he was under no legal or moral obligation to plead guilty--but that he had a right to deny the several charges and put the government to the proof of them." (26) Following the court's determination that the prisoner was sane and the plea was not the product of "tampering" or "promises," "the clerk [was] directed to record the plea." (27) Ultimately, the prisoner was "executed." (28)

Throughout the remainder of the nineteenth century, courts (29) as well as leading legal commentators (30) recognized that a defendant could plead guilty unconditionally to a crime punishable by death. In 1892, the United States Supreme Court in Hallinger v. Davis, (31) affirmed the death sentence of a defendant who had pled guilty. (32) As in common law times, judges were slow to accept a guilty plea in capital cases, often cautioning defendants to reconsider such a decision and closely scrutinizing these pleas to ensure that the defendant was of sound mind and was not acting under duress or out of ignorance. (33)

During this period, many authorities, including courts across the country, described the entering of a guilty plea as a "right" enjoyed by the accused or, conversely, noted that a trial judge lacked the authority to absolutely refuse to entertain such a guilty plea. (34) This view is consistent with the Sixth Amendment's antecedent right to a jury trial as a "right or privilege of the accused," rather than "as a part of the structure of government." (35)

This right of a capital defendant to plead guilty was accommodated in practice as well as in theory. Numerous appellate decisions from various states, from colonial times through to the early twentieth century, discuss and approve of accepting actual capital guilty pleas. The death sentences to which these pleas led, usually without much fanfare, indicate that it was a regular and accepted, albeit infrequent, feature of criminal practice during this period. (36) Nor is the force of this significant and uniform body of law undermined by the fact that, in most of these cases, it was the government who was asserting a capital defendant's right to plead guilty and it was the defendant himself, seeking to set aside his plea or sentence, who was denying it. (37)

Indeed, capital guilty pleas became even more accepted and common in this country than they had been in England because, beginning in the early nineteenth century, most states eliminated any lingering common law concern over whether such pleas amounted to judicial suicide or created an obstacle to discretionary leniency. (38) States eliminated these concerns by amending their penal statutes to create different grades of murder for sentencing purposes, only the highest of which--first-degree murder--was punishable by death. (39) Additionally, during this same period, many states provided for discretionary jury sentencing even in the case of a first-degree murder conviction. (40) Under such statutes, a defendant could plead guilty unconditionally to the charge and seek a more lenient sentence from the jury, either by a finding of a lesser degree of murder upon a plea to simple murder or a recommendation of mercy upon a plea to the highest grade of murder. (41)


New York, Arkansas, and under some circumstances, Louisiana, are the only states that prohibit pleading guilty when the conviction could result in a death sentence. (42) One other state, New Jersey, experimented with such a rule but abandoned it more than twenty years ago. (43) In the case of all four states, with the possible exception of Louisiana, these prohibitions arose more than a century after the adoption of the Federal Constitution and a number of years after the ratification of the Fourteenth Amendment. (44) There are apparently no statutes or case law from other states, or the federal government, nor any existing rules or provisions against a competent criminal defendant from entering a knowing, voluntary, and unconditional guilty plea to a capital charge, in a murder case, or any other similar category of prosecutions. (45) On the contrary, the remaining thirty-four death penalty states (in addition to New Jersey, the thirty-fifth) as well as the federal system permit unconditional guilty pleas to capital offenses whether or not the prosecution is seeking the death penalty. (46) Additionally, the appellate reporters for these jurisdictions for years since the Supreme Court reaffirmed the constitutionality of the death penalty in Gregg v. Georgia, (47) have contained various cases in which defendants facing a possible death sentence have pled guilty to a capital crime and proceeded to a punishment hearing. (48)

A. Similar State Perspectives on Accepting Capital Guilty Pleas: New Jersey, Arkansas, and Louisiana

1. New Jersey

New Jersey, which originally had recognized the common law principle that "[i]f an accused confessed to an indictment for murder, he condemned himself to death," in 1893 enacted a prohibition on capital guilty pleas "to ameliorate this harsh rule." (49) This measure was prompted by the Supreme Court's decision in Hallinger. (50) The New Jersey Supreme Court explained in another of its decisions that the procedure for allowing capital guilty pleas, pursuant to the 1893 New Jersey statute, "provided a ready and facile road to the gallows." (51)

However, New Jersey repealed that provision, in 1978, (52) when it enacted its modern death penalty statute. (53) Today, New Jersey permits a guilty plea to capital murder, (54) regardless of whether the prosecutor is seeking the death penalty. (55)

2. Arkansas

Similarly, throughout Arkansas' history, state law permitted a guilty plea to the capital offense of murder, with the jury subsequently selecting punishment by determining the degree. (56) This statute was repealed in 1971. (57) In 1975, the state enacted provisions, which remain in effect today, forbidding a guilty plea to a capital felony "unless ... the prosecuting attorney, with the permission of the court, has waived the death penalty." (58) It appears that these provisions have never been squarely challenged as violating a defendant's right, constitutional or otherwise, to plead guilty. (59)

3. Louisiana

In Louisiana, state law has prohibited "unqualified" guilty pleas in capital cases apparently since the early twentieth century. (60) Louisiana state case law "reveals that the article was drafted to insure that an accused could not plead guilty in a manner to bring about his own death, there being a well founded legislative policy against a person accomplishing such judicial suicide." (61) However, as amended in 1995, the state's capital guilty plea provision now allows a defendant facing the death penalty to plead guilty with the agreement of the court and the prosecuting attorney. (62)

B. A Look at New York's Experience with the Prohibition of Guilty Pleas

1. Early History

In New York, from 1881 until 1889, the Code of Criminal Procedure allowed a criminal defendant to plead guilty at arraignment, altering the prior practice of not having the defendant enter a formal plea. (63) In 1889, the Legislature enacted a provision forbidding a guilty plea "where the crime charged [was] punishable by death" or life imprisonment. (64) This provision was soon amended to apply only to crimes "punishable by death." (65) Several years later, the Court of Appeals reported a case in which the defendant, who had shot his estranged girlfriend in the head in front of numerous witnesses, repeatedly complained during pretrial detention about "why he could not plead guilty." (66)

The original rationale for this law is unclear, although it was enacted during a period of widespread efforts to abolish the death penalty in New York. (67) Almost a century later, a legislative commission suggested that the "spirit and purpose" of prohibiting pleas to capital crimes was to "outlaw any possibility of a defendant pleading himself into the electric chair." (68)

This provision remained unchanged until 1963, when the Legislature, in altering the state's capital punishment scheme, modified it to permit a defendant charged with a capital crime to plead guilty as long as the prosecutor and court consented and the agreed-upon sentence was less than death. (69) But in 1974, under a new law in which the death penalty was mandatory for first-degree murder, (70) a guilty plea to this offense was again completely forbidden. (71) A memorandum from the sponsor of this legislation said that its purpose was "to insure that a jury ha[d] heard the case and determined guilt before capital punishment [could] be imposed." (72)

2. Current State of the Law

New York's new capital punishment law, enacted in 1995, authorizes a jury to impose a sentence of death or life imprisonment without parole on a defendant convicted of first-degree murder. (73) But, like past statutes, it prohibits pleading guilty when a defendant may be sentenced to death. (74) Instead, as under the 1963 law, a defendant can plead guilty to first-degree murder only if the prosecutor and court consent, and then can only receive a sentence other than death. (75) In other cases, a competent criminal defendant in New York maintains the traditional right to enter a knowing and voluntary plea of guilty to the indictment, with or without the consent of the prosecutor or court. (76)

In several cases, the New York Court of Appeals has addressed the constitutional problems that the capital statute creates, (77) because it makes the death penalty available only for defendants who are convicted at trial and not for those who plead guilty, thus penalizing defendants for exercising their right to trial. To remedy this disparity, the Court of Appeals has held that no defendant may plead guilty to first-degree murder, even unconditionally with a plea to the entire indictment, unless and until the prosecutor has decided not to seek the death penalty. (78)

But in doing so, the Court of Appeals has left untouched the statute's unique prohibition against a defendant pleading guilty unconditionally to all the charges against him, even without the prosecutor's consent, when the plea could result in a death sentence. In two recent capital prosecutions in New York, defendants each tried to enter an unconditional guilty plea to the indictment. In each case, lower courts concluded, with little analysis, that the defendants had no right to plead guilty in violation of state law. (79) Furthermore, the Court of Appeals refused to hear one of the cases, (80) and in the other affirmed rejection of the guilty plea on the ground it would have frustrated the prosecutor's authority to seek the death penalty. (81) Thus, neither the Court of Appeals, nor any federal court, has ever affirmatively addressed the constitutional validity of New York's underlying prohibition against pleading guilty when a death sentence is possible.

Additionally, the United States Supreme Court has never addressed the issue of whether the Constitution limits a state from categorically prohibiting such pleas, (82) although it once granted a stay of execution, apparently to consider this issue. (83) The only other jurisdictions with similar laws are Arkansas and Louisiana. (84) Further, the courts in those states also have not directly addressed a claim that it abridges a defendant's constitutional right to tender a guilty plea. (85)

Not only is New York's practice of refusing to allow a voluntary, unconditional guilty plea to a capital charge an aberrant one; it also cannot be justified by any legitimate, albeit compelling, governmental interest. The prohibition is not necessary to preserve the prosecutor's authority to seek, or the jury's power to impose, the death penalty. (86) The New York Court of Appeals has acknowledged that the New York legislature "could have achieved its goals" of enacting a constitutionally effective death penalty statute "by allowing" defendants convicted of first-degree murder to be "sentence[d] ... to the full range of punishments regardless of how guilt was determined." (87) Instead, the legislature provided that "only a jury can impose a death sentence," yet created "no procedure for impaneling a jury to sentence a defendant after a guilty plea." (88)

Moreover, New York may not choose, inexplicably and irrationally, to immunize first-degree murder defendants who plead guilty from capital punishment and then invoke its interest in the death penalty as a basis for prohibiting such pleas, thereby flouting a longstanding and widespread first principle of Anglo-American criminal practice. (89) The tail cannot wag the dog. Nor does the blanket rule against such pleas to a crime punishable by death serve the state's interest in allowing prosecutors the "thorough, fully deliberative decision making on whether to seek the death penalty that the Legislature contemplated." (90) The prohibition is not limited to the 120-day period the statute affords a district attorney in which to file a notice of intent to seek the death penalty, but also applies once such a notice has been filed and remains in effect. (91)

3. Why Prohibition of Capital Guilty Pleas Is No Longer Applicable

Other possible justifications for the lingering prohibition on capital guilty pleas in New York -- the same ones that made common law and early American courts hesitant and cautious in accepting such pleas -- are no longer applicable in light of well-established and, in most jurisdictions, long-standing statutory and constitutional requirements of knowing and voluntary plea waivers, the assistance of counsel, and discretionary, bifurcated capital sentencing in lieu of a mandatory death penalty. (92) Indeed, the Supreme Court has recognized that, because of these requirements, there is no more reason to "question the accuracy and reliability" of guilty pleas than there is to question the soundness of the results reached at trial, even in capital cases. (93) Furthermore, a requirement that defendants be cautioned before sacrificing their right to trial by jury in order to exercise their right to enter a guilty plea is not inconsistent with protecting both. Thus, although the Supreme Court has required that a defendant seeking to exercise the right of self-representation must "be made aware of the dangers and disadvantages of self-representation" and "knowingly and intelligently forgo th[e] relinquished benefits" of representation by counsel, it still has recognized that the Constitution forbids a court from forcing representation on a defendant once he properly waives counsel. (94)

Conversely, these rogue prohibitions on capital guilty pleas deprive defendants of important and legitimate benefits that would flow from such a plea. The Supreme Court has recognized murder defendants' interests in pleading guilty and avoiding trial "in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings." (95) Indeed, trials in England during the common law period, even of capital offenses, were summary proceedings rarely lasting more than a day. (96) Thus, a defendant's interest in pleading guilty is heightened under modern rules of criminal practice in capital cases, particularly in a state like New York, that often requires numerous pre-trial hearings extending over years and trial proceedings lasting months. (97)

In addition, under a system in which a capital conviction leaves a jury or judge with a choice of punishment (a feature of all modern death penalty schemes), (98) adopted by most states in the early or mid-nineteenth century, a defendant also has an interest in focusing the sentencer's attention on the issue of punishment and evidence relevant to sentencing and degree of guilt, rather than advancing a meritless, even frivolous, defense to the charge. (99) The defendant also has an interest in demonstrating that he has taken responsibility for his conduct, is remorseful, and is seeking to spare the victim's family and the court system unnecessary time and expense. (100) As the continuing resort to this practice by some capital defendants attests, in certain cases there is arguably no better way to accomplish these legitimate goals than by pleading guilty. (101) As authorities from Jeremy Bentham to Justice Antonin Scalia have recognized, a truthful guilty plea is a virtue in its own right. (102)

Finally, perhaps the most important factor forcing defendants to plead not guilty and defend themselves against a criminal charge at trial and instead seek to plead guilty unconditionally is the notion that it violates the autonomy on which the Supreme Court has recognized the other trial rights protected by the Sixth Amendment. (103) In Faretta v. California, (104) the Court reasoned that compelling an unwilling criminal defendant to accept assigned counsel would violate this autonomy. In part the Court stated:
 The language and spirit of the Sixth Amendment contemplate that counsel,
 like the other defense tools guaranteed by the Amendment, shall be an aid
 to a willing defendant--not an organ of the State interposed between an
 unwilling defendant and his right to defend himself personally. To thrust
 counsel upon the accused, against his considered wish, thus violates the
 logic of the Amendment. In such a case, counsel is not an assistant, but a
 master; and the right to make a defense is stripped of the personal
 character upon which the Amendment insists ... Unless the accused has
 acquiesced in such representation, the defense presented is not the defense
 guaranteed him by the Constitution, for, in a very real sense, it is not
 his defense. (105)

Like a defense presented by an unwanted counsel, a plea of innocence and a trial, when forced upon a defendant who seeks to plead guilty unconditionally, is "a defense ... stripped of the personal character upon which the [Sixth Amendment rests]," and thus violates the logic of these provisions. (106)


New York and two other states are alone in categorically forbidding capital defendants from pleading guilty when a death sentence is possible. Because of radical intervening changes in criminal procedure and capital punishment, these prohibitions are no longer justified and, further, are at odds with the widespread and almost uniform protection of such pleas since common law times. Most importantly, because these prohibitions deprive a capital defendant of the legitimate benefits that flow from a guilty plea, they violate the due process clause of the Fourteenth Amendment.

(1) See discussion infra Part IV.

(2) See discussion infra Part II.

(3) See infra Part II (discussing the fact a defendant's right to plead guilty was recognized and protected at common law).

(4) See infra Part III (noting that within early American jurisprudence, guilty pleas resulting in capital punishment were permissible).

(5) See infra Part IV.

(6) See discussion infra Part IV.

(7) See discussion infra Part IV.

(8) See infra note 46 and accompanying text.

(9) See discussion infra notes 34, 36 (presenting state court case law that supports the notion that voluntary guilty pleas are permissible, while those guilty pleas that are given under duress or without adequate advisement as to one's rights are considered involuntary, and, therefore impermissible).

(10) See discussion infra Part IV (discussing the steps taken by New York, Arkansas, and Louisiana to ensure that guilty pleas were not a dispositive factor in subjecting defendants to the death penalty).

(11) See discussion infra Part IV.

(12) Cooper v. Oklahoma, 517 U.S. 348, 355-57 (1996); see also Faretta v. California, 422 U.S. 806, 816 (1975) (vacating state court decision that denied a criminal defendant's request to represent himself in a criminal trial in violation of the Sixth Amendment). Cf. Singer v. United States, 380 U.S. 24, 27-32 (1965) (denying criminal defendant's request for a bench trial).

(13) J. Laurence Laughlin, The Anglo-Saxon Legal Procedure, in ESSAYS IN ANGLO-SAXON LAW 183, 285 (photo. reprint 1972) (1876). See 2 BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND 390 (Samuel E. Thorne trans., 1968) (recognizing two kinds of pleas in felony cases, "confession" or guilty plea and "denial" or not guilty plea).

(14) SIR MATTHEW HALE, PLEAS OF THE CROWN: A METHODICAL SUMMARY, 1678, at 243 (P. R. Glazebrook ed., Prof'l Books Ltd. 1982) (1678). Writing in 1736, Hale explained the guilty plea, or confession, at greater length:
 When the prisoner is arraigned, and demanded ... to [respond to] the
 indictment, either he confess[es] [to] the indictment, or plead [guilty] to
 it, or stand mute and ... not answer. The confession is either simple, or
 relative in order to the attainment of some other advantage. That which I
 call a simple confession is, where the defendant upon hearing of his
 indictment without any other respect confesses [to] it, this is a


Although noting various restrictions on the second type of confessor (termed an "approver") who seeks to obtain a pardon by providing information against others, it is noteworthy that Hale mentioned no similar limitations on unconditional, or simple, confessions. See id. at 225-35.

(15) HALE, PLEAS OF THE CROWN: A METHODICAL SUMMARY, 1678, supra note 14, at 243.

(16) See 2 SIR WILLIAM BLACKSTONE, COMMENTARIES *329 (1881) ("The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court ha[s] nothing to do but to award judgment...."); 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 333 (photo. reprint 1978) (1721) (stating that "[a]n ex[press] Con[fession] is where a Per[son] directly con[fesses] the Crime with which he is charged, which is the high[est] Conviction that can be, and may be received").

(17) State v. Wagner, 752 P.2d 1136, 1147 (Or. 1988) (quoting State v. Watkins, 194 S.E.2d 800, 807 (N.C. 1973)), vacated on other grounds, Wagner v. Oregon, 492 U.S. 914 (1989).

(18) See John H. Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263, 278-79 (1978) (some capital "defendants did insist on pleading guilty," citing a case from London's Old Bailey where a woman pled guilty to the murder of her husband and another case where a woman pled guilty to the murder of her child); see also J.S. Cockburn, Trial by the Book? Fact and Theory in the Criminal Process, 1558-1625, in LEGAL RECORDS AND THE HISTORIAN 60, 73 (J.H. Baker ed. 1978) (explaining that during the period of 1587 and 1590, guilty pleas were common, as evidenced by "five or six prisoners" at every assizes and "sometimes as many as half the calendar -- confessed to their indictments and were sentenced without further process[;]" and that "from about 1590 onwards the petty jury and formal process became redundant in between 15 and 20 per cent of the routine felonies tried at assizes"); J.M. Beattie, Crime and the Courts in Surrey: 1736-1753, in CRIME IN ENGLAND: 1550-1800, 155, 173 (J.S. Cockburn ed. 1977) (denoting Justice Gundry's 1751 description of when "he had left a condemned man for execution because [the defendant] had pleaded guilty (most unusually)").

(19) See Langbein, supra note 18, at 278 (counseling defendants to reconsider guilty plea because they would be eligible for the death penalty). It "often happens" that "the prisoner pleads guilty" because he is certain that the death penalty will be commuted; but that, even then, "the judge cautions him that the crime alleged is capital, and that it is his interest to defend himself." M. COTTU, ON THE ADMINISTRATION OF CRIMINAL JUSTICE IN ENGLAND; AND THE SPIRIT OF THE ENGLISH GOVERNMENT 73 (1822).

(20) BLACKSTONE, supra note 16, at *329.

(21) See 1 EDWARD HYDE EAST, PLEAS OF THE CROWN 131 (photo. reprint 1987) (1803) (stating that the confession must be given "willingly and without violence, in open court," to warrant a conviction). The reluctance of English common law courts to accept guilty pleas was attributable to the fact that "English felony defendants were not represented by counsel" and "[t]he common advice to stand trial was probably presented not in what we would today regard as a judicial capacity but in the court's capacity as counselor." Albert W. Alschuler, Plea Bargaining and Its History, 79 COLUM. L. REV. 1, 11 (1979). Further, it was the duty of trial judges to see defendants "should suffer nothing for [their] want of knowledge in [the] matter of law." Id. (alteration in original). See also 2 HAWKINS, supra note 16, at 333.

(22) See HALE, THE HISTORY OF THE PLEAS OF THE CROWN, supra note 14, at 225 (discussing that "it is usual for the court, especially if it be out of clergy, to advise the party to plead and put himself upon his trial, and not presently to record his confession, but to admit him to plead") (emphasis added). In Hale's time, the benefit of clergy was "a device primarily used to mitigate capital punishment for larceny" in the case of a first offense and was not available for "major crimes of violence and the most detested property crimes." John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1, 39 (1983); see also Alschuler, supra note 21, at 11 (explaining the reluctance of English common law courts to accept guilty pleas was attributable to the fact "that death was the prescribed penalty for every felony").

Even when a defendant was eligible for this common-law form of clemency, it would be unavailable absent mitigating information that could only be obtained from a trial, and thus a guilty plea would invariably result in execution. For this reason, courts also discouraged guilty pleas in those cases. One commentator noted that:
 The trial judges exercised a postverdict discretion to recommend clemency
 to the crown. In administering the pardon process, the judges depended upon
 information gleaned at trial for their view of the offender. A main reason
 that the judges discouraged guilty pleas in seventeenth- and
 eighteenth-century criminal trials was the wish to learn about the offender
 at trial in the event that a convict sought clemency.

John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047, 1064-65 (1994) (footnotes omitted).

See also Langbein, The Criminal Trial before the Lawyers, supra note 18, at 278 (noting a 1743 case in which defendant announced he would plead guilty to robbery with the hope of receiving executive commutation of mandatory death sentence, but withdrew his plea after the court informed the defendant that it could not take notice of any "favorable [c]ircumstances," unless the defendant agreed to stand trial).

(23) See U.S. CONST. art. III, [section] 3 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court") (emphasis added); see also Ex parte Garland, 71 U.S. (4 Wall.) 333, 340 (1866) (noting that the framers of the Constitution permitted the accused to enter a plea of guilty and could be subjected to capital punishment); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 79 (1820) (citing a 1790 Congressional statute that provided the same procedure).

(24) Recent scholarship suggests that guilty pleas in non-capital cases were common in Colonial times. See George Fisher, Plea Bargaining's Triumph, 109 YALE L.J. 857, 966-67, 974 (2000) (explaining research conducted on Massachusetts court records that presented findings that seventy-one percent of defendants pled guilty in mid-level criminal courts from 1789 to 1790, because defendants' would hope "that the judge might show leniency as a reward for their pleas").

(25) 1 Mass. (1 Will.) 95 (1804).

(26) Id.

(27) Id.

(28) Id. at 96.

(29) See Hallinger v. Davis, 146 U.S. 314, 317-18, 324 (1892) (rejecting appellant's argument that he was denied due process and further finding that New Jersey's statute permitting a defendant to plead guilty to a capital offense is constitutional); United States v. Williams, 28 F. Cas. 636, 637, 643-44 (C.C.D. Me. 1858) (No. 16,707) (confessing in open court to the murder of their shipmates); People v. Noll, 20 Cal. 164, 165 (1862) (finding that if defendant chose to plead guilty the state statute did not require a finding of the degree of guilt); Garvey v. People, 6 Colo. 559, 561 (1883) (discussing how if defendants plead guilty to the charge of murder they could not be sentence to death but only to life imprisonment); Sarah v. State, 28 Ga. 576, 581 (1859) (rejecting the appellant's arguments and affirming the lower court's decision that a prisoner may waive their trial and receive capital punishment based upon their own confession of guilt); Wartner v. State, 1 N.E. 65, 66 (Ind. 1885) (ruling that the lower court abused its discretion, as a jury must decide the punishment for a felon who has admitted his guilt and not the court); State v. Cumberland, 58 N.W. 885, 885-86 (Iowa 1894) (ruling that the court correctly used its discussion in determining the defendant's degree of crime and sentence after he confessed his guilt); Mounts v. Commonwealth, 11 S.W. 311, 312 (Ky. 1889) (holding that a defendant who confesses to murder may not withdraw his confession once a verdict is rendered unless the defendant was induced to plead guilty by "threats or promises"); Green v. Commonwealth, 94 Mass. (12 Allen) 155, 175-76 (1866) (stating that the court has no power to refuse a plea of guilty by a defendant); State v. German, 54 Mo. 526, 531 (1874) (refusing to accept the defendant's confession since it was done outside of the court and was coerced); State v. Almy, 28 A. 372, 372 (N.H. 1892) (stating that even though the defendant pled guilty to murder, he was still subject to the same sentence as if he had been found guilty by a jury); Craig v. State, 30 N.E. 1120, 1121 (Ohio 1892) (finding that the lower court used proper discretion in determining the degree of guilt of the defendant following his confession to the court); Giles v. State, 4 S.W. 886, 887-88 (Tex. Ct. App. 1887) (affirming the lower court's decision which held that the defendant's plea of guilty was sufficient evidence to support a murder conviction); Miller v. State, 29 P. 136, 139 (Wyo. 1892) (holding that the defendant's confession of murder in open court was corroborated with other evidence and thus supported the verdict).

(30) As one commentator noted:
 An express confession of the indictment is where a person directly
 confesses, in open court, the crime with which he is charged.... If it
 appears to the satisfaction of the court that the defendant rightly
 comprehends the effect of his plea, the plea of guilty is recorded, even in
 a capital case.


See also JAMES BASSETT, L.L., D., CRIMINAL PLEADING AND PRACTICE, WITH PRECEDENTS OF INDICTMENTS, AND SPECIAL PLEAS, 214-15 (Henry Binmore ed., 2d ed.) (1885) ("It is not infrequent that [the] defendant confesses the indictment by plea of guilty.... This plea proceeds to the full extent the charges are good and leaves to the court the simple duty of assessing the penalty and pronouncing judgment even to the extent of death.").

(31) 146 U.S. 314 (1892).

(32) See id. at 324.

(33) See id. (refusing to accept the defendant's plea of guilty, the court adjourned twice so as to ensure that the defendant would be fully advised of the "truth, force and effect of his plea of guilty"); Green, 94 Mass. (12 Allen) at 176 (finding that the defendant, who had shot and murdered the decedent, was of sound mind and not under duress when he entered his plea); see also BASSETT, supra note 31, at 215 (explaining that courts are always reluctant to accept a plea of guilty); 2 JOEL PRENTISS BISHOP, NEW CRIMINAL PROCEDURE [section] 795 (2d ed. 1913) (discussing how although a defendant may plead guilty, the court should accept this plea with caution; and how judges will often explain the ramifications of such a plea).

(34) See West v. Gammon, 98 F. 426, 429 (6th Cir. 1899) (reinforcing an earlier New Hampshire Supreme Court finding that "`a party indicted for an offense, however grave in its nature, may enter a plea of guilty thereto, if he sees fit so to do'" (citing State v. Almy, 28 A. 372, 374 (N.H. 1892))); Garvey, 6 Colo. at 561 (discussing in a matter of fact way what actions the court needs to take when the defendant has pled guilty (citing 1881 Colo. Sess. Laws 70)); Green, 94 Mass. (12 Allen) at 175-76 (stating that although common law courts were hesitant to accept guilty pleas, they had no choice but to do so); State v. Rover, 10 Nev. 388, 397 (1875) (stating that both pleading guilty and accepting a capital sentence was a defendant's right); Almy, 28 A. at 375 (asserting that a defendant's right to plead guilty has been historically recognized); State v. Johnson, 96 P. 26, 28 (Okla. 1908) (affirming the capital guilty plea and death sentence the court declared that "[u]ndoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty, instead of denying the charge"); Fisher, supra note 25, at 965 (explaining that, as the defendant held the right to a jury trial, he or she also had the right, unassailable by the court, to plead guilty (citing Green, 94 Mass. (12 Allen) at 176)); Leonie G. Hellwig, Comment, The Death Penalty in Washington: An Historical Perspective, 57 WASH. L. REV. 525, 526 (1982) ("Washington's territorial legislature enacted the first statute recognizing the criminal defendant's right to plead guilty to murder in 1854." (citing Act of Apr. 28, 1854, [section] 87, 1854 Wash. Laws 100, 115-16)).

See also Pope v. State, 47 So. 487, 488 (Fla. 1908) (asserting definitely a defendant's right to plead guilty); State v. Kaufman, 2 N.W. 275, 276 (Iowa 1879) (stating that "the right of the defendant to so plead [guilty] has never been doubted").

Consistent with these preceding state court decisions, the North Carolina Supreme Court held that:
 [A] judge cannot compel a defendant against his will to plead not guilty
 and submit to a trial; for undoubtedly a prisoner of competent
 understanding, duly enlightened, has the right to plead guilty instead of
 denying the charge. Yet in proportion to the gravity of the offense the
 court should exercise caution in receiving this plea, and should see that
 he is properly advised as to the nature of his act and its consequences.

State v. Branner, 63 S.E. 169, 171 (N.C. 1908).

John H. Langbein, Understanding the Short History of Plea Bargaining, 13 LAW & SOC'Y REV. 261, 267 (1979) (comparing the criminal defendant's right to plead guilty to the civil defendant's right to admit liability); Susan C. Towne, The Historical Origins of Bench Trial for Serious Crime, 26 AM. J. LEGAL HIST. 123, 155 (1982) ("The defendant's right to plead guilty, avoiding trial, has never been questioned.").

(35) Patton v. United States, 281 U.S. 276, 297-98 (1930) (concluding that the framers were concerned with the defendant's right to plead guilty due to the language used in the Sixth Amendment); see also Commonwealth v. Dailey, 66 Mass. (12 Cush.) 80, 84 (1853) (holding that defendant's consent to going forth with the trial after one of the jurors had been excused did not allow him to appeal the verdict that was handed down by the eleven member jury).

(36) See Calloway v. State, 15 So. 821, 822 (Ale. 1894) (finding that the defendant's confessions were voluntary and, further, that the lower court committed no errors in admitting the confessions); People v. Lennox, 7 P. 260, 261 (Cal. 1885) (ruling that the defendant was not permitted to withdraw his plea of guilty once the verdict to execute him had been handed down); Territory v. Miller, 29 N.W. 7, 11 (Dakota 1886) (holding that if a defendant pled guilty to murder, the court could sentence him to death); Hamilton v. People, 71 Ill. 498, 499 (1874) (rejecting defendant's interpretation of the Act of 1867 and stating that a defendant who pled guilty may be sentenced to death); Commonwealth v. Battis, 1 Mass. (1 Will.) 95, 95-96 (1804) (demonstrating that the court did not direct an immediate entry of a guilty plea to an indictment for a capital crime, but gave the prisoner a reasonable amount of time to consider whether or not to retract his plea); People v. Roberts, 178 N.W. 690, 692 (Mich. 1920) (holding that when a defendant properly pleads guilty, the court has the discretion to determine the degree of murder based on that confession); State v. Ceja, 298 P. 658, 660 (Nev. 1931) (affirming the lower court's judgment in accepting the defendant's guilty plea even though he was not represented by counsel at that time); State v. Comery, 95 A. 670, 672 (N.H. 1915) (holding that the defendant waived his right to have a verdict of the jury to which the words "with capital punishment" could have been added by pleading guilty); Brown v. State, 266 P. 491, 492-93 (Okla. Crim. App. 1928) (holding that the defendant's sentence of death by electrocution be reduced because the defendant was not fully advised of either his rights or of the consequences of his guilty plea); Ex parte Harrell, 110 P. 493, 494, 496 (Or. 1910) (denying appeal to defendant because the court properly handled his plea of guilty for the act of murder); Commonwealth v. Cook, 31 A. 56, 58 (Pa. 1895) (stating that a defendant who confesses is presumed to be guilty of second degree murder and leaves the burden on the prosecutor to demonstrate the elements of a first degree murder conviction); Jones v. Commonwealth, 75 Pa. 403, 410 (1874) (modifying lower court's determination that defendant was guilty of murder in the first degree and finding the defendant guilty of murder in the second degree based on the defendant's guilty plea and the fact that the evidence was not sufficient to prove the premeditation necessary to convict the defendant of first degree murder); Brown v. State, 25 S.W. 789, 789 (Tex. Crim. App. 1894) (rejecting defendant's argument that he did not obtain a fair trial because public sentiment was so greatly against him); State v. Hill, 95 S.E. 21, 22 (W. Va. 1918) (reiterating that the court should accept a plea of guilty when the prisoner acted freely in making his confession); State v. Best, 12 P.2d 1110, 1110-11 (Wyo. 1932) (ruling that the defendant's plea of guilty would not be set aside because the defendant was aware that his punishment remained in the hands of the jury after he made his confession).

See also M'Cauley v. United States, 1 Morris 641, 642-43 (Iowa 1846) (explaining the requirement that the record demonstrate the court's precise determination of the degree of guilt following a defendant's confession to the act of murder); State v. Hardy, 98 S.W.2d 593, 595-96 (Mo. 1936) (holding that the conviction of murder would not be reversed based on the court's rejection of the defendant's plea of guilty and its submission of the case to a jury, where the record demonstrated no error in the trial and the defendant participated without any objection); Polk v. State, 224 P. 194, 195-96 (Okla. Crim. App. 1924) (reversing the lower court's decision convicting the defendant of murder based on the notion that the defendant's confession was given under duress and the defendant was not advised of his rights, thus, his guilty plea was not voluntary); Dixon v. Commonwealth, 172 S.E. 277, 278 (Va. 1934) (reversing the lower court's decision and awarding a new trial because the defendant had a right to have the court determine his degree of guilt without a jury as a result of his guilty plea, which was a direct product of state statutory law).

(37) See Martinez v. Ct. App. of Cal., 528 U.S. 152, 157 n.4 (2000) (explaining that in many state's capital cases a "defendant's right to represent himself was often the predicate for upholding the waiver of an important right"). Beyond the handful of cases, discussed infra note 39, in which such pleas were unlawful, there is simply no historical evidence of outright rejection of capital guilty pleas, and thus no appellate case law addressing such rulings.

See also Miller, 29 N.W. at 8 (rejecting the defendant's argument that, as the law did not specifically authorize judgment after a guilty plea, he was not to be punished); Hamilton, 71 Ill. at 499 (interpreting a state statute to give the court the power to sentence the defendant, just as if he had been found guilty by a jury); Comery, 95 A. at 671, 674 (rejecting the defendant's argument that his guilty plea defeated the court's ability to sentence him to death); Hill, 955 S.E. at 22 (upholding the trial court's discretion to deny the defendant's motion to withdraw his guilty plea before sentencing).

(38) See infra notes 40-41 and accompanying text. See generally HARRY POTTER, HANGING IN JUDGMENT: RELIGION AND THE DEATH PENALTY IN ENGLAND at 3-4 (discussing the so-called "Bloody Code" of early England); EXECUTIONS AND THE BRITISH EXPERIENCE FROM THE 17TH TO THE 20TH CENTURY: A COLLECTION OF ESSAYS at 149 (William B. Thesing ed. 1990) (describing the abolition movement in England that first reached Parliament in 1819); Kristi Tumminello Prinzo, Note, The United States--"Capital" of the World: An Analysis of Why the United States Practices Capital Punishment While the International Trend Is Towards Its Abolition, 24 BROOKLYN J. INT'L L. 855, 856-58 (1999).

(39) See In re Brown, 32 Cal. 48, 49 (1867) (explaining that even though the murder indictment did not specify the degree of murder, it was not a nullity on its face). Additionally, in Redus v. People, the Colorado court discussed the nature of capital punishment in light of the following amended capital statute:
 If any person indicted for murder shall plead guilty to the indictment, the
 court shall thereupon impanel a jury, as in other cases, to whom shall be
 submitted, as the sole issue in the case, the question whether the killing
 was murder in the first or second degree. The jury in every such case shall
 find the degree thereof, and the court shall thereupon give sentence

14 P. at 324 (Colo. 1887) (citing COLO. GEN. STAT. [section] 709 (1883)).

Jones v. Commonwealth, 75 Pa. 403, 406 (1874) (describing that to be guilty of first-degree murder, the evidence must be sufficiently clear to convince a jury that the killing was "deliberate and premeditated"); see also Hellwig, supra note 35, at 526 (citing Act of Apr. 28, 1854, [section] 87, 1854 Wash. Laws 100, 115-16)).

(40) See, e.g., Ex parte McCrary, 22 Ale. 65, 70-71 (1853) (discussing the defendant's argument that the jury is empowered with the duty to determine whether the accused will be sentenced to the death penalty or life imprisonment); Hamilton v. People, 71 Ill. 498, 499 (1874) (explaining the applicable statute and stating that the court could not impose a death sentence unless the jury returned such a verdict); Wartner v. State, 1 N.E. 65, 66 (Ind. 1885) (granting the defendant's appeal, the court held that the lower court erred by not permitting a jury to determine the defendant's sentence after his confession); Mounts v. Commonwealth, 12 S.W. at 311, 312 (Ky. 1889) (holding that the power of discretion in determining the defendant's degree of guilt in a murder case was properly given to the jury); State v. Johnson, 96 P. 26, 27 (Okla. 1908) (instructing the jury that since the defendant pled guilty for murder they had two choices for punishment--either death or life imprisonment).

(41) See, e.g., Mounts, 12 S.W. at 311 ("[D]efendant entered a motion to permit him to withdraw the plea of guilty and enter a plea of not guilty, accompanying which motion was a statement to the effect that he was induced to enter the plea of guilty, believing the jury would be merciful to him and spare his life."); State v. Almy, 28 A. 372, 374 (N.H. 1892) ("He preferred to have no issue and no trial, but to have a hearing, under the statute, in regard to the circumstances of the admitted murder, which he claimed would affect the penalty for the single and undivided crime of which he chose to be convicted on his confession."). Indeed, a guilty plea was seen by many defendants, and some courts and juries, as itself a reason for leniency. See Cottrell v. Commonwealth, 46 S.E.2d 413, 416 (Va. 1948) (stating that a capital guilty plea "was no uncommon occurrence" where the evidence "was adequate to establish guilt and to persuade the defendant and his attorney that the wiser course was to admit his guilt and hope for a lighter punishment from the court than from the jury").

(42) See discussion infra Part IV.B. (detailing New York's statutory plan regarding capital punishment); see also infra note 46 and accompanying text (illustrating that all the states permitting the death penalty--other than New York, Arkansas, and Louisiana--permit guilty pleas, even in capital cases).

(43) See John J. Farmer, Jr., The Evolution of Death-Eligibility in New Jersey, 26 SETON HALL L. REV. 1548, 1551 (1996) (stating that the 1972 version of the death penalty statute allowed defendants to choose between pleading guilty and not receiving the death penalty, or, in the alternative, going to trial and risk being issued the death penalty sentence). This statute was struck down and a new version was enacted in 1982. Id.; see also discussion infra Part IV.A.1.

Two early twentieth century appellate decisions in the District of Columbia and Hawaii called into question the propriety of a court's authority to accept an unconditional guilty plea in a capital case. See Green v. United States, 40 App. D.C. 426, 427-28 (D. D.C. 1913) (holding that the court's rejection of defendant's guilty plea was consistent with the applicable statute); Territory v. Fukunaga, 30 Haw. 697, 719 (Haw. 1929) (stating that "the practice in these islands ... has been for trial judges to refuse to accept a plea of guilty to an indictment charging an offense punishable with death and to require the entry of a plea of not guilty"); but see United States v. Willis, 75 F. Supp. 628, 630 (D.C. Cir. 1948) (disregarding any suggestion to the contrary in Green, "[t]here is nothing in the statute involved in this case that clearly indicates an intention on the part of the legislative body to deprive the courts of their inherent jurisdiction to accept pleas of guilty"). Nevertheless, these jurisdictions removed the death penalty from their statute books long ago and no other cases from these courts discuss the issue.

(44) See, e.g., N.Y. CRIM. PROC. LAW [section] 220.10(5)(e) (West Supp. 2001) (enacting a law in 1995 prohibiting pleading guilty to capital crimes).

(45) In California, a criminal defendant must be represented by counsel in pleading guilty to a capital offense. See CAL. PENAL CODE [section] 1018 (West Supp. 2001). The purpose of this provision is "`to protect defendants by assuring that such a serious step is a fully informed and competent one, taken only after consideration with and advice by counsel.'" People v. Chadd, 621 P.2d 837, 842 (Cal. 1981).

(46) See 18 U.S.C. [section] 3593 (1994); ALA. CODE [subsection] 13A-5-42, -43, -45 (1994); ARIZ. REV. STAT. [section] 13-703(B) (West 2001); CAL. PENAL CODE [section] 190.4 (West 1999); COLO. REV. STAT. [section] 16-11-103(1) (2000); CONN. GEN. STAT. ANN. [section] 53a-46a (west 1958); DEL. CODE ANN. tit. 11, [section] 4209 (1995); FLA. STAT. ANN. [section] 921.141 (West 2001); GA. CODE ANN. [section] 17-10-32 (1997); IDAHO CODE [section] 19-2515 (Michie 1997); 720 ILL. COMP. STAT. ANN. 5/9-1 (West 1993); IND. CODE ANN. [section] 35-50-2-9(d) (1998); KAN. STAT. ANN. [section] 22-3210(a) (Supp. 2000); KY. REV. STAT. ANN. [section] 532.025(1)(a) (Michie 1999); MD. CODE ANN., art. 27, [section] 413 (1996); MISS. CODE ANN. [section] 99-19-101 (West 1999); MO. ANN. STAT. [section] 565.006 (West 1999); MONT. CODE ANN. [section] 46-18-301 (west 1999); NEB. REV. STAT. [section] 29-2520 (1995); NEV. REV. STAT. ANN [section] 175.552 (Michie 2001); N.H. REV. STAT. ANN. [section] 630:5 (Michie 1996); N.M. STAT. ANN. [section] 31-18-14 (Michie 1978); N.C. GEN. STAT. [section] 15A-2000 (Lexis 1999); OHIO REV. CODE ANN. [section] 2929.02 (Anderson 1996); OKLA. STAT. ANN. tit. 21, [section] 701.10 (West 1983); OR. REV. STAT. [section] 163.150 (1999); 42 PA. CONS. STAT. ANN. [section] 9711(b) (West 1998); S.C. CODE ANN. [section] 16-3-20 (Law. Co-op. 1985); S.D. CODIFIED LAWS [section] 23A-27A-4 (Michie 1998); TENN. CODE ANN. [section] 39-13-205 (1997); TEX. CRIM. PROC. CODE ANN. [subsection] 1.13-1.15 (Vernon Supp. 2001); UTAH CODE ANN. [section] 76-3-207 (Lexis 1999); VA. CODE ANN. [subsection] 19.2-257, 19.2-264.4 (Lexis 2000); WASH. REV. CODE ANN. [section] 10.95.050 (West 1990); WYO. STAT. ANN. [section] 6-2-102 (Lexis 2001).

(47) 428 U.S. 153 (1976).

(48) See, e.g., State v. Smith, 931 P.2d 1272, 1275 (Mont. 1996) (affirming the lower court's decision in which the defendant was sentenced to death after pleading guilty to two counts of aggravated kidnapping and two counts of deliberate homicide); State v. Ashworth, 706 N.E.2d 1231, 1236 (Ohio 1999) (upholding the lower court's death sentence where defendant knowingly and voluntarily pled guilty to aggravated murder and robbery, and further waived his right to present mitigation evidence for the sole purpose of obtaining a death sentence).

(49) State v. Sullivan, 203 A.2d 177, 194-95 (N.J. 1964).

(50) State v. Forcella, 245 A.2d 181, 188 (N.J. 1968), rev'd, 403 U.S. 948 (1971).

(51) Genz v. State, 31 A. 1037, 1038 (N.J. 1895).

(52) N.J. STAT. ANN. [section] 2A:113-3 (West 1985), repealed by 1978 N.J. Laws ch. 95, [section] 2C:98-2.

(53) N.J. STAT. ANN. [section] 2C:11-3 (West Supp. 2001).

(54) See, e.g., State v. Simon, 737 A.2d 1, 15 (N.J. 1999) (approving capital guilty plea that ultimately resulted in a death sentence).

(55) See N.J. STAT. ANN. [section] 2C:11-3 (West Supp. 2001).

(56) In Walton v. State, 334 S.W.2d 657 (Ark. 1960), the court explained that:

[In] 1838, shortly after the admission of this state into the Union, an act was passed, which has since been unchanged, and now appears as [section] 43-2152, Ark. Stats. It reads as follows:
 The jury shall, in all cases of murder, on conviction of the accused, find
 by their verdict whether he be guilty of murder in the first or second
 degree; but if the accused confess his guilt, the court shall impanel a
 jury and examine testimony, and the degree of crime shall be found by such

Id. at 658-59.

(57) ARK. STAT. ANN. [section] 43-2108 (Repl. 1964), repealed by 1971 Ark. Act 124.

(58) ARK. CODE ANN. [section] 5-4-608 (Michie 1997) & ARK. CODE ANN. [section] 31.4 (Lexis 2001) (as supplement to existing statutory authority).

(59) The Arkansas Supreme Court and the Eighth Circuit have rejected claims that these provisions unconstitutionally hinder the right to trial under United States v. Jackson, 390 U.S. 570 (1968). See Pickens v. Lockhart, 714 F.2d 1455, 1459 n.3 (8th Cir. 1983) (stating that Pickens did not plead guilty and thereby exercised his "right of trial by jury"); Hayes v. Arkansas, 660 S.W.2d 648, 654 (Ark. 1983) (commenting, in dicta, that "[t]here is no right to plead guilty, and the fact that only a jury may impose the death penalty does not invalidate [the capital punishment provisions]"); Ruiz v. State, 630 S.W.2d 44, 46-47 (Ark. 1982) (supporting the position that the death penalty statute was not facially unconstitutional by providing that only a jury could impose a sentence of death "there is no right to plead guilty"); see also Hill v. State, 644 S.W.2d 282, 284 (Ark. 1983) ("The death penalty under Arkansas statutes has been consistently held constitutional").

(60) See LA. CODE CRIM. PROC. ANN. art. 557 (West 1981), amended by 1995 La. Acts 434, [section] 1. (stating in legislative history that "[t]his article retains from Art. 262 of the 1928 Code of Criminal Procedure the prohibition against receiving a plea of guilty in a capital case"); State v. Langley, 711 So. 2d 651, 658 n.4 (La. 1998) (stating an exception to this rule if it is stipulated that a life sentence without the possibility of parole is imposed).

In apparently the only federal decision addressing a challenge to Louisiana's prohibition in a habeas petition, the Fifth Circuit held the claim barred from review as an abuse of the writ. Prejean v. Smith, 889 F.2d 1391, 1396 n.7 (5th Cir. 1989). Although earlier available case law does not refer to such a prohibition, there do not appear to be any appellate decisions noting a plea of this kind. See State ex rel. Turner v. Jones, 192 So. 232, 232-33 (La. 1939) (attributing such prohibition to state statute and the 1921 State Constitution).

(61) State v. Fabre, 525 So. 2d 1222 (La. Ct. App. 1988); see also State v. Jett, 419 So. 2d 844, 851 (La. 1982) (rejecting a challenge to the rule and stating that the "court [must] proceed in a manner consistent with the spirit of the code and other applicable legislation").

(62) See LA. CODE CRIM. PROC. ANN. art. 557 (West Supp. 2001). After the defendant's plea, a capital sentencing hearing will follow. Id.

(63) See 1881 N.Y. Laws 81 (explaining the arraignment procedure of 1881). Furthermore, in 1875, additional language was added to the arraignment procedure, which stated:
 Upon any defendant being arraigned upon an indictment, it shall not be
 necessary to ask him how he will be tried; and instead of being required to
 say whether he pleads guilty or not guilty, he shall be required to say
 whether he demands a trial upon such indictment; he may answer that he does
 require such trial, and for the purpose of all further proceedings, such
 answer shall be deemed equivalent to a plea of not guilty. If he refuses to
 plead or answer, and in all cases where he does not confess the indictment
 to be true, a plea of not guilty shall be entered by the court; and the
 same proceedings, in all respects, shall be had as if he had pleaded not
 guilty to such indictment.

3 N.Y. REV. STAT. [section] 74 (6th ed. 1875).

(64) Act of June 6, 1889, ch. 384, 1889 N.Y. Laws 532 (codified as amended at CODE CRIM. PROC. [section] 332) (disallowing a defendant to plead guilty to capital crimes or crimes with a punishment of life imprisonment).

(65) Act of May 14, 1897, ch. 427, sec. 2, [section] 332, 1897 N.Y. Laws 569, 570 (amending further section 332 of the New York Code of Criminal Procedure by clarifying that "[a] conviction shall not be had upon a plea of guilty where the crime charged is or may be punishable by death").

(66) People v. Krist, 60 N.E. 1057, 1057, 1060 (N.Y. 1901). Krist was convicted and sentenced to death after counsel presented insanity defense at trial. Id.; see also People v. Smith, 28 N.Y.S. 912, 913 (N.Y. Gen. Term 1894) (noting that the New York Code of Criminal Procedure "provid[ed] that no conviction shall be had on the plea of guilty in cases where the crime is punishable by death or imprisonment for life").

(67) See N.Y. STATE TEMPORARY COMMISSION ON REVISION OF THE PENAL LAW AND CRIMINAL CODE, FOURTH INTERIM REPORT, N.Y. LEGIS. DOC. NO. 25, at 83-84 (1965) (discussing the "resurgence of abolition sentiment in New York," noting specifically that in November and December of 1962 this Commission on Revision of the Penal Law and Criminal Code conducted public hearings "with sixty-three speakers voicing their views, many representing groups and organizations, [the] opinion was overwhelmingly in favor of abolition").


(69) Act of May 3, 1963, ch. 994, sec. 5, [section] 332, 1963 N.Y. Laws 3018, 3022-23 ("A conviction shall not be had upon a plea of guilty where the crime charged is or may be punishable by death, except as otherwise provided in sections ten hundred forty-five and twelve hundred fifty of the penal law."). This provision was carried forward in the state's 1965 and 1967 death penalty laws. Act of June 1, 1965, ch. 321, sec. 6, [section] 332, 1965 N.Y. Laws 1021, 1025 (stating exceptions to pleading guilty where the crime charged is punishable by death); see also Act of Apr. 27, 1967, ch. 681, sec. 51, [section] 332, 1967 N.Y. Laws 1591, 1605 (reinforcing a defendant's ability to plead guilty to a capital crime "upon consent of the court and district attorney"). In 1970, the Legislature expanded the circumstances under which a capital defendant could plead guilty, providing that, even if "a possibility exists that the defendant ... could ultimately be sentenced to death[,]" the defendant could still plead guilty to the indictment "with both the permission of the court and the consent of the people." Act of May 20, 1970, ch. 996, 1970 N.Y. Laws 3117, 3207, 3229 (codified as amended at N.Y. CRIM. PROC. LAW [section] 320.10(1) (McKinney 1993)).

(70) Act of May 17, 1974, ch. 367, sec. 1, [section] 2, 1974 N.Y. Laws 499 (codified as amended at N.Y. PENAL LAW [section] 60.06 (McKinney 1998). Today, courts have discretion to impose the death penalty for first degree murder. See N.Y. PENAL LAW [section] 60.06 (listing the available punishments).

(71) Act of May 17, 1974, ch. 367, sec. 1, [section] 10, 1974 N.Y. Laws 501 (codified as amended at N.Y. CRIM. PROC. LAW [section] 220.10(5)(e) (West Supp. 2001)) ("A defendant may not enter a plea of guilty to the crime of murder in the first degree.").

(72) Letter from Dale M. Volker, Member, New York State Assembly, to Michael Whiteman, Counsel to the Governor (May 14, 1974) (on file with author); see also Joseph L. Hoffmann et al., Plea Bargaining in the Shadow of Death, 69 FORDHAM L. REV. 2313, 2340 (2001) (referencing Assembly member Volker's letter in explaining how "the bill was designed to prevent defendants from entering guilty pleas to first-degree murder ... to insure that a jury has heard the case and determined guilt before capital punishment can be imposed").

(73) See N.Y. PENAL LAW [section] 60.06 (McKinney 1998).

(74) See N.Y. GRIM. PROC. LAW [section] 220.10(5)(e) (McKinney Supp. 2001). But see discussion infra notes 79, 81 (discussing Hynes v. Tomei, 706 N.E.2d 1201 (N.Y. 1998), where the Court of Appeals asserted that certain provisions of this statute are unconstitutional, however, avoided addressing directly addressing this unconstitutional matter in their decision of the case).

(75) See N.Y. CRIM. PROC. LAW [subsection] 220.10(5)(e), 220.30(3)(b)(vii), 220.60(2)(a) (West Supp. 2001) ("A defendant may not enter a plea of guilty to the crime of murder in the first degree."); People v. Edwards, No. 92, 2001 LEXIS 2015, at *19 (N.Y. July 5, 2001) (holding that "a voluntary, knowing, intelligent and fully counseled guilty plea waives, among other rights, a defendant's Fifth Amendment privilege against self-incrimination and Sixth Amendment right to trial by jury").

(76) See N.Y. GRIM. PROC. LAW [section] 220.60(1) (McKinney Supp. 2001) (stating that "[a] defendant who has entered a plea of not guilty to an indictment may as a matter of right withdraw such plea at any time before rendition of a verdict and enter a plea of guilty to the entire indictment"); N.Y. CRIM. PROC. LAW [subsection] 220.10(2) (stating that a "defendant may as a matter of right enter a plea of `guilty' to the entire indictment," unless the crime is murder or one of the other enumerated violations listed in subdivision five of the statute).

See also People v. Moquin, 570 N.E.2d 1059, 1062 (N.Y. 1991) (noting that the prosecutor's consent to a guilty plea is not necessary where the defendant is pleading guilty to the entire indictment and where the murder charge is dismissed); Carney v. Feldstein, 597 N.Y.S.2d 982, 984 (App. Div. 1993) (holding that a trial court may accept a defendant's guilty plea without the prosecutor's consent if the defendant is pleading guilty to the entire indictment and there is no murder one count); People v. Rosebeck, 486 N.Y.S.2d 384, 385 (App. Div. 1985) (noting that a trial court must allow a defendant to plead guilty to the entire indictment, unless the court feels the defendant's plea is not knowing, voluntary, and intelligently made).

(77) See People v. Edwards, No. 92, 2001 LEXIS 2015, at *18-19 (N.Y. Ct. App. July 5, 2001) (holding that "a voluntary, knowing, intelligent and fully counseled guilty plea waives, among other rights, a defendant's Fifth Amendment privilege against self-incrimination and Sixth Amendment right to trial by jury"); Francois v. Dolan, 731 N.E.2d 614, 616 (N.Y. 2000) (holding that "until the completion of the [120-day] statutorily provided deliberative process [of the People] ... a capital defendant does not have an unqualified right to plead guilty to the entire indictment"); Hynes v. Tomei, 706 N.E.2d 1201, 1203 (N.Y. 1998), cert. denied, 527 U.S. 1015 (1999) ("The New York law ... explicitly provides two levels of penalty for the same offense, imposing death only on those who assert innocence and proceed to trial."); see also Hoffmann et al., supra note 72, at 2313 ("Taken together, Edwards and Hynes have thrown the day-to-day administration of the death penalty in New York into a state of confusion.").

In comparing United States v. Jackson, 390 U.S. 570 (1968), with New York law, the Court of Appeals reasoned that:
 [Like] the invalidated Federal Kidnapping Act provision, New York's death
 penalty statute explicitly provides for the imposition of the death penalty
 only upon a jury verdict. As a result, under the New York statute, only
 those defendants who exercise the Fifth Amendment right against
 self-incrimination and Sixth Amendment right to a jury trial put themselves
 at risk of death.

Hynes, 706 N.E.2d at 1205.

Further, the Court of Appeals observed that the statute's unconstitutional effects were entirely unnecessary because, as in Jackson, the legislature "could have achieved its goals by allowing juries to sentence defendants to the full range of punishments regardless of how guilt was determined." Id. at 1204, 1207. Instead, the legislature had provided that "only a jury can impose a death sentence," yet had created "no procedure for impaneling a jury to sentence a defendant after a guilty plea." Id. at 1208 n.7. Therefore, "defendants could still avoid the possibility of death only by pleading guilty." Id. at 1209 n.7. However, the Court of Appeals decided the case without addressing the unconstitutional provisions because the explained that they were severable from the remainder of the death penalty statute, therefore they still exist in the New York Criminal Procedure Law.

(78) See Hynes, 706 N.E.2d at 1208-09 (holding that "a defendant may not plead guilty to first degree murder while a notice of intent to seek the death penalty is pending"); Dolan, 731 N.E.2d at 616 (prohibiting a defendant in a capital case from pleading guilty where a death penalty notice is pending).

A prosecutor has 120 days after the arraignment on the indictment to file a notice of intent to seek the death penalty. See N.Y. CRIM. PROC. LAW [section] 250.40 (McKinney Supp. 2001). A defendant may not plead guilty to first-degree murder unless and until the 120-day waiting period elapses, the prosecutor waives the authority to seek the death penalty, or the prosecutor withdraws a previously filed notice. See Dolan, 731 N.E.2d at 616-17 (allowing a defendant to pre-emptively plead guilty "would substantially undermine the present statutory framework"). As discussed, supra note 77, in Hynes, the Court of Appeals declined to strike the entire death penalty statute, as the Supreme Court had done to the old federal statute in Jackson, reasoning that eliminating the opportunity to plead guilty to first-degree murder and avoid the death penalty means that a defendant who proceeds to trial and receives a death sentence cannot complain that he was punished for exercising his constitutional right to trial. Hynes, 706 N.E.2d at 1208.

(79) See People v. Francois, 731 N.E.2d 614, 616-17 (N.Y. 2000) (holding that a capital murder defendant cannot plead guilty without the prosecutor's consent unless the prosecutor declines to file a death notice); People v. Schroedel, 697 N.Y.S.2d 904 (Sullivan County Ct. 1999), mandamus denied sub nom., Schroedel v. La Buda, 707 N.Y.S.2d 252 (N.Y. App. Div. 2000), cert. denied, 733 N.E.2d 228 (N.Y. 2000) (accepting the petitioner's plea of guilty to the indictment charge against him of murder in the first degree, because the 120-day statutory period within which the People may file a notice of intention to seek the death penalty had not yet expired).

(80) See Schroedel v. La Buda, 733 N.E.2d 228 (N.Y. 2000).

(81) Francois v. Dolan, 731 N.E.2d 614 (N.Y. 2000).

(82) In dicta, the Court has made cursory statements that a criminal defendant has no absolute constitutional right to have a guilty plea accepted in any particular case. In Corbitt v. New Jersey, 439 U.S. 212, 223 (1978), the Court stated that states and the federal government could reject involuntary pleas and pleas without an admission of factual guilt. Therefore, without such action the states and federal government are permitted to offer leniency in exchange for guilty pleas. See Corbitt, 439 U.S. at 223; see also North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (holding that a trial judge may accept a plea of guilty even when the defendant has professed his belief in his innocence as to the crime of murder); Lynch v. Overholser, 369 U.S. 705, 719 (1962) (noting that a defendant does not have "an absolute right to have his guilty plea accepted by the court").

Indeed, the Court has characterized such a blanket prohibition as "cruel" and at odds with the "traditional and fundamental" "power of a court to accept a plea of guilty." United States v. Jackson, 390 U.S. 570, 584 (1968) (quoting United States v. Willis, 75 F. Supp. 628, 630 (D. D.C. 1948)) (stating that if this authority is to be stripped from the courts it can be taken away by Congress and not the Court); Carter v. Illinois, 329 U.S. 173, 174 (1946) (noting that ascertainment of guilt or innocence within the scope of the Due Process Clause of the Fourteenth Amendment "does [not] prevent [a defendant] from acknowledging guilt when fully advised of all its implications and capable of understanding them").

(83) See Prejean v. Smith, 493 U.S. 987 (1989) (order granting stay of execution), cert. denied, 494 U.S. 1090 (1990) (staying a condemned prisoner's execution pending the outcome of his petition for writ of certiorari). The Fifth Circuit held that the prisoner's challenge to the guilty-plea rule, raised in his third habeas petition, was barred from review as an abuse of the writ. See Prejean v. Smith, 889 F.2d 1391, 1396 n.7, 1405 (5th Cir. 1989).

(84) See discussion infra Part IV.A.

(85) See discussion infra Part IV.A. (discussing how New York, Arkansas, and Louisiana are the only states that that prohibit capital guilty pleas).

(86) See infra notes 92-93 and accompanying text (referring to cases which show such rule is not justified).

(87) Matter of Hynes v. Tomei, 706 N.E.2d 1201, 1204 (N.Y. 1998).

(88) Id. at 1208 n.7.

(89) See supra notes 87-88; see also discussion supra Part III (noting the longstanding principal of both the federal and state governments that a capital defendant had a right to plead guilty).

(90) Francois v. Dolan, 731 N.E.2d 614, 617 (N.Y. 2000).

(91) Compare N.Y. CRIM. PROC. LAW [section] 250.40 (McKinney Supp. 2001) with WASH. REV. CODE ANN. [section] 10.95.040(1)-(2) (West 1990) (stating that a defendant may not plead guilty to aggravated murder, without the prosecutor's consent, during the initial 30-day period after arraignment in which the prosecutor may file notice of intent to seek death penalty).

(92) See Martinez v. Ct. App. of Cal., 528 U.S. 152, 158 (2000) (explaining that "the original reasons for protecting [the] right [of self-representation] do not have the same force when the availability of competent counsel for every indigent defendant" has displaced the need ... for self-representation"); supra note 74 and accompanying text; see also Medina v. California, 505 U.S. 437, 453-54 (1992) (O'Connor and Souter, JJ., concurring) (stating that due process analysis requires looking beyond the "historical pedigree" of "a procedural practice" to "countervailing considerations of fairness in operation" in modern criminal practice). Cf. Montana v. Egelhoff, 518 U.S. 37, 50 (1996) ("This is not to say up to in all respects.").

(93) Brady v. United States, 397 U.S. 742, 749, 757-58 (1970). There would be doubts if guilty pleas were encouraged because of offers of leniency. If these requirements are sufficient to ensure that defendants do not falsely condemn themselves despite being induced to plead guilty by a prosecutor's threat to otherwise seek the death penalty, as in Brady, and the resulting adjudication of guilt is no less reliable than a jury verdict, it is difficult to understand why these same requirements would not adequately safeguard against false guilty pleas when the death penalty is possible, or how New York's ban ensures more reliable determinations of guilt in capital cases by requiring a jury trial. See Hoffmann et al., supra note 72, at 2346-47, 2382-88 (discussing the relative interests of defendants and prosecutors as to guilty pleas in capital punishment cases).

(94) Faretta v. California, 422 U.S. 806, 835-36 (1975).

(95) United States v. Jackson, 390 U.S. 570, 584 (1968). See Brady, 397 U.S. at 750 (explaining that "post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family"; "pleas of guilty" entered for this reason "are valid"); see generally Abney v. United States, 431 U.S. 651, 661-62 (1977) (discussing double jeopardy and recognizing "the personal strain, public embarrassment, and expense of a criminal trial").

In early nineteenth century America, courts also acknowledged the burden a criminal trial imposes on the defendant. See, e.g., State v. McAllister, 26 Me. 374, 377 (1846) (referring to "the expense and odium of a trial"); Commonwealth v. Harkness, 4 Binn. 194, 195 (Pa. 1811) (discussing the prosecution "puts defendants to the shame and expense of a public trial"); Commonwealth v. Cherry, 4 Va. (2 Va. Cas.) 20, 21 (1815) ("[S]hall the accused ... be compelled to hold up his hand at the bar, and submit to the expense, trouble, and infamy of a public trial?").

(96) Langbein, supra note 34, at 263-64 (describing the factors that made eighteenth century trials at London's "Old Bailey" extremely short in duration).

However, in the early years of this country, the trial process had already become more protracted, at least in murder cases. See, e.g., People v. Gray, 5 Wend. 289, 289 (N.Y. Sup. Ct. 1830) (noting that the trial lasted four days); People v. Bodine, 7 Hill 147, 148 (N.Y. Sup. Ct. 1844) (noting that the murder trial lasted ten days); Commonwealth v. Cawood, 4 Va. (2 Va. Cas.) 527, 529 (1826) (noting that the trial lasted five days).

(97) See People v. Smelefsky, 695 N.Y.S.2d 689, 695 (Sup. Ct. 1999) ("The relatively short history of New York's new death penalty law has demonstrated that trials of capital cases are often long and costly.").

(98) See supra note 46 and accompanying text.

(99) See Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 CORNELL L. REV. 1557, 1584, 1586-87 (1998) (stating that the jury's perception that a defendant has acted responsibly and displayed remorse, prior to the sentencing hearing, was found to be among the factors most predictive of sentences less than death in capital cases).

(100) Indeed, even in the English common law period of the mandatory death penalty, some defendants pled guilty to capital offenses in the hope "that benefit-of-clergy"--a precursor of executive commutation--"would nullify the otherwise applicable sanction." Langbein, supra note 18, at 278 n.43; see also HALE, THE HISTORY OF THE PLEAS OF THE CROWN, supra note 14, at 225 (noting that trial judges discouraged guilty pleas "especially" if defendant was not eligible for benefit of clergy).

(101) See, e.g., Strickland v. Washington, 466 U.S. 668, 672 (1984). In this case, the defendant "pleaded guilty to ... three capital murder charges [and] ... [i]n the plea colloquy ... [h]e ... stated ... that he accepted responsibility for the crimes. Id. The trial judge told respondent that he had `a great deal of respect for people who are willing to step forward and admit their responsibility' [a]t the sentencing hearing," defense counsel adopted a "reasonable" strategy of "argu[ing] that respondent's remorse and acceptance of responsibility justified sparing him from the death penalty." Id. at 673; see also Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 COLUM. L. REV. 1538, 1559 (1998) (laying out the results of a study of possible factors and whether each would make the individual more or less likely--and to what degree--to vote for the death penalty; 21.7% of those interviewed answered that a defendant's failure to display remorse would make him or her much more likely to vote for death).

(102) See Minnick v. Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J., and Rehnquist, C.J., dissenting) ("While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, `admissio[n] of guilt ... if not coerced, [is] inherently desirable'" (quoting United States v. Washington, 431 U.S. 181, 187 (1977))) (emphasis added) (alteration in original); Brady v. United States, 397 U.S. 742, 750 (1970) ("For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment." "[P]leas of guilty" entered for this reason "are valid"); see also JEREMY BENTHAM, 1 RATIONALE OF JUDICIAL EVIDENCE 316 (1827) (discussing how the judicial practice of persuading a prisoner to "withdraw" guilty plea and "substitute ... the plea of not guilty, in its place" means that "[t]he wicked man, repenting of his wickedness, offers what atonement is in his power," but "the judge, the chosen minister of righteousness, bids him repent of his repentance, and in place of the truth substitute a barefaced lie").

(103) Martinez, 528 U.S. at 161.

(104) 422 U.S. 806 (1975).

(105) Id. at 820-21 (footnote omitted). In Martinez, Justice Scalia stated in concurring in the judgment that:
 Our system of laws generally presumes that the criminal defendant, after
 being fully informed, knows his own best interests and does not need them
 dictated by the State. Any other approach is unworthy of a free people....
 [T]o require the acceptance of counsel "is to imprison a man in his
 privileges and call it the Constitution."

528 U.S. at 165 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 280 (1942)).

(106) Faretta, 422 U.S. at 820-21.

Barry J. Fisher, Deputy Capital Defender, New York State Capital Defender Office; J.D. Harvard Law School, 1990. I received valuable research assistance from Jonathan Griffith, Meredith Branch, and Lisa Kavanaugh. The views expressed in this article are solely my own.
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Title Annotation:state prohibitions on guilty pleas
Author:Fisher, Barry J.
Publication:Albany Law Review
Geographic Code:1USA
Date:Sep 22, 2001
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