dissenting.
The Court today permits a term of imprisonment to be increased because of a defendant’s refusal to identify others *564involved in criminal activities — a refusal that was not unlawful and that may have been motivated by a desire to avoid self-incrimination or by a reasonable fear of reprisal. I do not believe that a defendant’s failure to inform on others may properly be used to aggravate a sentence of imprisonment, and accordingly, I dissent.
The majority does not dispute that a failure to disclose the identity of others involved in criminal activity may often stem from a desire to avoid self-incrimination. This case is an excellent illustration of that possibility. The prosecutor asked petitioner “to identify the person or persons from whom he was getting the drugs, and the location, and to lay out the conspiracy and identify other co-conspirators who were involved with them.” App. 36. Disclosure of this information might well have exposed petitioner to prosecution on additional charges.1 He was never offered immunity from such prosecution. Petitioner’s right to refuse to incriminate himself on additional charges was not, of course, extinguished by his guilty plea.
There can be no doubt that a judge would be barred from increasing the length of a jail sentence because of a defendant’s refusal to cooperate based on the constitutional privilege against self-incrimination. In such a case, the threat of a longer sentence of imprisonment would plainly be compulsion within the meaning of the Fifth Amendment. Cf. McGautha v. California, 402 U. S. 183 (1971). Such an aggravation of sentence would amount to an impermissible penalty imposed solely because of the defendant’s assertion of the Fifth Amendment privilege.
*565I also believe that it would be an abuse of discretion for a judge to use a defendant’s refusal to become an informer to increase the length of a sentence when the refusal was motivated by a fear of retaliation.2 In such a case, the failure to identify other participants in the crime is irrevelant to the defendant’s prospects for rehabilitation, see ante, at 558, and bears no relation to any of the legitimate purposes of sentencing. See United States v. Grayson, 438 U. S. 41 (1978); United States v. Tucker, 404 U. S. 443 (1972).
In this case, then, petitioner’s refusal to provide the requested information was lawful3 and may have been motivated by the possibility of self-incrimination or a reasonable fear of reprisal. The majority acknowledges that these claims “would have merited serious consideration if they had been presented properly to the sentencing judge.” Ante, at 559. Because petitioner did not expressly state these grounds , to *566the sentencing judge, however, the Court indulges the assumption that petitioner’s refusal was motivated by a desire to “preserv[e] his ability to resume criminal activities upon release.” Ante, at 558. I am at a loss to discern any eviden-tiary basis for this assumption.4 And I reject the Court’s harsh and rigid approach to the issue of waiver, especially in a context in which it was hardly clear that reasons for petitioner’s failure to cooperate had to be identified before the sentencing judge.5
*567Furthermore, the bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about “the meaning of that conduct with respect to [the defendant’s] prospects for rehabilitation and restoration to a useful place in society.” United States v. Grayson, supra, at 55. A fear of reprisal against one’s self or one’s family or a desire to avoid further self-incrimination are equally plausible explanations for such conduct. Even the desire to “do his own time” without becoming a police informer might explain petitioner’s behavior without necessarily indicating that he intended to “resume criminal activities upon [his] release.” Ante, at 558. The inference that petitioner was a poor candidate for rehabilitation could not be justified without additional information.6
The enhancement of petitioner's sentence, then, was impermissible because it may have burdened petitioner’s exercise of his constitutional rights or been based on a factor unrelated to the permissible goals of sentencing. In addition, it represented an improper involvement of the judicial office in the prosecutorial function that should be corrected through our supervisory power over the federal courts.7
*568The usual method for obtaining testimony which may be self-incriminatory is through a grant of immunity from prosecution. See 18 U. S. C. § 6001 et seq. (1976 ed. and Supp. II). Prosecutors would have little incentive to offer defendants immunity for their testimony if they could achieve the same result without giving up the option to prosecute. There is no suggestion here that an offer of immunity was ever extended to petitioner. If a defendant knows his silence may be used against him to enhance his sentence, he may be put to an unfair choice. He must either give incriminating information with no assurance that he will not be prosecuted on the basis of that information, or face the possibility of an increased sentence because of his noncooperation. Since a prosecutor may overcome a Fifth Amendment claim through an offer of immunity, I see no reason to put defendants to such a choice.
A second method available to the prosecutor for obtaining a defendant’s testimony against others is the plea-bargaining process. The Court has upheld that process on the theory that the relative equality of bargaining power between the prosecutor and the defendant prevents the process from being fundamentally unfair. Santobello v. New York, 404 U. S. 257, 261 (1971). But if the judge can be counted on to increase the defendant’s sentence if he fails to cooperate, the balance of bargaining power is tipped in favor of the prosecution. Not only is the prosecutor able to offer less in exchange for cooperation, but a defendant may agree for fear of incurring the displeasure of the sentencing judge. To insure that defendants will not be so intimidated into accepting plea bar*569gains, federal judges are forbidden from participating in the bargaining process. See Fed. Rule Crim. Proc. 11(e)(1); ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.3 (a) (App. Draft 1968). As Judge Bazelon observed below: “The trial judge, whose impartiality is a cornerstone of our criminal justice system, may be tempted, under the guise of exercising discretion in sentencing[,] to join forces with the prosecutor in securing the defendant’s cooperation.” 195 U. S. App. D. C. 1, 3, 600 F. 2d 815, 817 (1979). I do not believe that we should allow that possibility.
I find disturbing the majority’s willingness to brush aside these serious objections to the propriety of petitioner’s sentence on the strength of “the duty to report known criminal behavior,” ante, at 558. According to the Court, petitioner’s refusal to become an informer was a rejection of a “deeply rooted social obligation,” ibid. All citizens apparently are “obliged to assist the authorities” in this way, and petitioner’s failure to do so was not only “a badge of irresponsible citizenship,” but constituted “antisocial conduct” as well. Ante, at 558, 559.
The Court supports its stern conclusions about petitioner’s civic duty only by reference to the concepts of “hue and cry” and “misprision of felony.” Those concepts were developed in an era in which enforcement of the criminal law was entrusted to the general citizenry rather than to an organized police force.8 But it is unnecessary to discuss in detail the historical context of such concepts, so different from our present-day society, in order to reject the Court’s analysis. American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others *570has never been as unambiguous as the majority suggests. The countervailing social values of loyalty and personal privacy have prevented us from imposing on the citizenry at large a duty to join in the business of crime detection. If the Court’s view of social mores were accurate, it would be hard to understand how terms such as “stool pigeon,” “snitch,” “squeal.er,” and “tattletale” have come to be the common description of those who engage in such behavior.
I do not, of course, suggest that those who have engaged in criminal activity should refuse to cooperate with the authorities. The informer plays a vital role in the struggle to check crime, especially the narcotics trade. We could not do without him. In recognition of this role, it is fully appropriate to encourage such behavior by offering leniency in exchange for “cooperation.” 9 Cooperation of that sort may *571be a sign of repentance and the beginning of rehabilitation.10 But our Government has allowed its citizens to decide for themselves whether to enlist in the enterprise of enforcing the criminal laws; it has never imposed a duty to do so, as the Court’s opinion suggests. I find no justification for creating such a duty in this case and applying it only to persons about to be sentenced for a crime.
In fact, the notion that citizens may be compelled to become informers is contrary to my understanding of the fundamental nature of our criminal law. Some legal systems have been premised on the obligation of an accused to answer all questions put to him. In other societies law-abiding behavior is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path. As highly as we value the directives *572of our criminal laws, we place their enforcement in the hands of public officers, and we do not give those officers the authority to impress the citizenry into the prosecutorial enterprise. By today’s decision, the Court ignores this precept, and it does so in a setting that both threatens Fifth Amendment rights and encourages arbitrary and irrational sentencing.
The prosecutor stated at the sentencing hearing that the Government’s initial offer of leniency in exchange for petitioner’s cooperation was made on the assumption that he was a relatively minor figure in the conspiracy. The Government argued for lengthy consecutive sentences, however, because “we were shown to be wrong” about that assumption. It seems plain that if petitioner had provided the information requested, he would have incriminated himself on additional charges.
In determining whether a refusal to cooperate can be taken into consideration when based on a fear of reprisal, the relevant inquiry, of course, is whether the defendant in fact has a subjective fear, not whether the fear is objectively reasonable. It is when the defendant is actually afraid of reprisal that his failure to cooperate has no relevance to the legitimate purpose of sentencing.
The Court refers to the ancient offense of misprision of felony, ante, at 557-558, but, as its own discussion shows, petitioner could not have been punished under 18 U. S. C. § 4. See ante, at 558, n. 5. The Government has never contended that petitioner’s behavior was other than lawful. A discussion of the continued vitality of laws making it a crime to fail to report criminal behavior is unnecessary to this case; I observe only that such laws have fallen into virtually complete disuse, a development that reflects a deeply rooted social perception that the general citizenry should not be forced to participate in the enterprise of crime detection. See Note, 27 Hastings L. J. 175, 181-187 (1975); Note, 23 Emory L. J. 1095 (1974). Cf. Glazebrook, Misprision of Felony — Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 283 (1964). As Mr. Chief Justice Marshall stated: “It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh forman.” Marbury v. Brooks, 7 Wheat. 556, 575-576 (1822).
Indeed, the record hardly supports the Court’s characterization of petitioner’s behavior as “intransigency.” Ante, at 559. Except for his refusal to identify additional participants, petitioner was quite helpful. He voluntarily accompanied Ms. Payne to the office of the United States Attorney. At that time, as the Government conceded at the sentencing hearing, “we had no idea of the identity of who it was who was using that green Jaguar automobile to ferry narcotics about the city.” App. 35. Ms. Payne said she lent the car to petitioner, and he agreed to be interviewed. At' that initial interview, he confessed, implicated a co-conspirator, and voluntarily explained the meaning of code words used in the conspiracy.
The Court also relies on Judge MacKinnon’s assertion that the sentence was “very light” for a “substantial drug distributor.” Ante, at 557, n. 4. Of course, petitioner did not plead guilty to conspiracy or to distribution of heroin, but to two counts of unlawful use of a telephone to facilitate the distribution of heroin. Each count was punishable by a maximum of four years’ imprisonment and a $30,000 fine, and petitioner was sentenced to consecutive 1- to 4-year terms. At the sentencing hearing, petitioner’s counsel stated that he had been unable to find a single case “in which any federal judge has ever given consecutive sentences for two or more phone counts.” App. 28. The Government has never challenged this assertion.
The sentencing hearing took place on April 21, 1978. At that time, there was no settled law on the question whether failure to cooperate could be considered as an aggravating factor in sentencing. Compare United States v. Garcia, 544 F. 2d 681, 684-686 (CA3 .1976) (improper factor), and United States v. Rogers, 504 F. 2d 1079 (CA5 1974) (same), with United States v. Chaidez-Castro, 430 F. 2d 766 (CA7 1970) (proper factor). Nor was there any rule that a defendant Was required to identify reasons for his failure to cooperate. For the Court to hold in these circumstances that the defendant’s silence amounted to “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. *567Zerbst, 304 U. S. 458, 464 (1938), seems to me extraordinarily stem in light of the Court’s traditional indulgence of “ ‘every reasonable presumption against waiver’ of fundamental constitutional rights.” Ibid. (citation omitted).
In this respect, petitioner’s conduct was quite different from the deliberate perjury involved in United States v. Grayson, 438 U. S. 41 (1978). Perjury is itself a serious crime, a “‘manipulative defiance of the law,’ ” id., at 51, quoting United States v. Hendrix, 505 F. 2d 1233, 1236 (CA2 1974), that corrupts the trial process.
As the Court notes, 18 U. S. C. §3577 provides that “[n]o limitation shall be placed on the information . . . which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” This statute, however, was merely a codification of the sentencing standards set forth in Williams v. New York, 337 U. S. 241 (1949). Nothing in the statute or its legislative history suggests a congressional intention to overturn or limit this Court’s historic powers of supervision *568over the conduct of criminal cases in the federal courts. See Mesarosh v. United States, 352 U. S. 1, 14 (1956). There is no warrant for the conclusion that 18 U. S. C. § 3577, which was designed to codify existing judicial practices, operates as a bar to the use of those supervisory powers to safeguard the Fifth Amendment privilege or to protect against irrational sentencing.
Cf. F. Pollock & F. Maitland, The History of English Law 582-583 (2d ed. 1909).
The majority expresses “doubt that a principled distinction may be drawn between ‘enhancing’ the punishment imposed upon the petitioner and denying him the ‘leniency’ he claims would be appropriate if he cooperated.” Ante, at 557, n. 4. But as Judge Lumbard has stated: “It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense.” United States v. Ramos, 572 F. 2d 360, 363, n. 2 (CA2 1978) (concurring opinion). At the most, the distinction may be difficult to administer; it is certainly a principled one, appearing in similar form in several areas of the law. For example, a distinction has been recognized between extending leniency to a defendant who pleads guilty and augmenting the sentence of a defendant who elects to stand trial. See, e. g., United States v. Araujo, 539 F. 2d 287 (CA2 1976); United States v. Derrick, 519 F. 2d 1 (CA6 1975); United States v. Stockwell, 472 F. 2d 1186 (CA9 1973); United States v. Thompson, 476 F. 2d 1196, 1201 (CA7 1973); Scott v. United States, 135 U. S. App. D. C. 377, 419 F. 2d 264 (1969). Writing for the Court, Mr. Justice Powell relied in Maher v. Roe, 432 U. S. 464, 475-477 (1977), on a closely analogous distinction “between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” (In certain circumstances, of course, “state encouragement of an alternative activity” may also be constitutionally impermissible. See id., at 482-490 *571(Brennan, J., dissenting); id., at 454-462 (Marshall, J., dissenting). In this ease, however, it is agreed that no constitutional objection would be raised by an offer of leniency made to induce cooperation on the part of a defendant.)
Petitioner agrees that the extent of a defendant’s cooperation with prosecuting authorities may be taken into account in granting leniency. Cooperation, like confession, may be relevant to whether the defendant has taken an initial step toward rehabilitation. The corollary inference, however, that failure to inform on others means that rehabilitation is unlikely, does not necessarily follow. As the United States Court of Appeals for the Second Circuit has explained in a similar setting: “[W]hile it is true that a defendant’s lack of desire for rehabilitation may properly be considered in imposing sentence, to permit the sentencing judge to infer such lack of desire from a defendant’s refusal to provide testimony would leave little force to the rule that a defendant may not be punished for exercising his right to remain silent. Moreover, we question how much a refusal to testify indicates an absence of rehabilitative desire, given that defendants often provide such testimony simply to get back at their former associates or to obtain a better deal from the Government. In any event, refusal to testify, particularly in narcotics cases, is more likely to be the result of well-founded fears of reprisal to the witness or his family.” DiGiovanni v. United States, 596 F. 2d 74, 75 (1979).