(dissenting) :
I disagree, for I think a critical difference lies in the fact that Alford did not enter a plea of guilty to the charge of murder in the first degree. His plea of guilty was to the lesser offense of murder in the second degree, the maximum statutory punishment for which is imprisonment for not more than thirty years. In the historical context of North Carolina’s statutes, this is a distinction of importance.
In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, the Supreme Court held unconstitutional a statutory scheme under which capital punishment could be imposed only by a jury after a trial upon a plea of not guilty. The risk of death, which would be encountered only if the defendant pled not guilty and demanded a jury trial was held to be an impermissible burden upon the exercise of the Fifth Amendment right not to incriminate oneself and the Sixth Amendment right to a jury trial. The Supreme Court concluded that the capital punishment amendment of the “Lindbergh Act” was thus unconstitutional, but the remainder of the statute, as enacted earlier, was left intact. Dismissal of the indictment, therefore, was vacated and the case remanded, so that the prisoner would be required to exercise his choices as to his plea and to a jury trial in a context in which the risk of death would not burden one set of choices.
Here the defendant clearly stated when he tendered his plea that he was substantially motivated by the fear of execution if he entered a plea of not guilty. His contemporaneous claim of innocence may be suspect,1 but the circumstances *350fully support his conscious purpose to avoid the risk of capital punishment. Under the circumstances, had the plea been to first degree murder, I would agree with the majority that the conviction should be set aside, for the victim of the very pressures Jackson sought to avoid ought not to be left to suffer their consequences.
The plea of guilty to murder in the second degree, however, was not the product of the constitutional infirmity in the statute. Had the infirmity not been present, the risk of capital punishment on a conviction of murder in the first degree would have constituted precisely the same pressure for a plea of guilty to a lesser included offense. Had North Carolina’s statute provided that upon a conviction of murder in the first degree, whether after a trial on a plea of not guilty or after acceptance of a plea of guilty, the judge in his discretion could impose the death sentence, or imprisonment for life or for a term of years, there would have been no constitutional defect in the statute. Yet, in those circumstances, the pressure upon Alford to enter a plea to murder in the second degree would not have differed in the slightest from the pressure he actually experienced.
Alford will be subject to retrial, of course. North Carolina may remove the infirmity from its statute, so that when Alford is rearraigned, he will be in the same position he was in initially.2 If he is well advised, he will again tender a plea of murder in the second degree. He will have gained nothing, and needless time and money will have been expended because of an infirmity in the statute which bears no causal relationship to the entry of the plea which the majority strikes.
Whenever a defendant bargains for a plea to a lesser, included offense, he is substantially motivated by fear of exposure to the greater punishment authorized upon conviction of the crime as charged. If the maximum punishment for the greater offense is death, there are emotional overtones which are not present if the maximum punishment is imprisonment for life or for a term of years, but the presence of a risk of capital punishment creates no conceptual distinction in a determination of the validity of bargaining for a plea to a lesser, included offense. The death penalty is no longer imposed with frequency, and a defendant may have a greater fear of the risk of a more likely sentence of life imprisonment than of the risk of less likely capital punishment. A difference in the prospect of imprisonment of one year rather than ten, of five years rather than twenty, of twenty years rather than life can weigh momentously with a defendant.
Such plea-bargaining, when the defendant is properly represented is both useful and desirable in the administration of justice. It greatly conserves judicial time and energy, leaving the courts available for the trial of cases in which there is no basis for accommodation between the parties. It is a very humane avenue of protection for a person charged with crime who recognizes his exposure to the risk of heavy punishment.
There is nothing in Jackson which intimates disapproval of that kind of plea-bargaining. Its absence, or the absence of agreement, is the thing that produced the Jackson dilemma. Yet, that is all that happened here. Alford successfully bargained for a plea to a lesser, included offense, which made him immune to life imprisonment as well as to capital punishment. He would have done the same thing had the capital punishment provision of the statute not been constitutionally defective. He may be expected to do *351the same thing again at his retrial. In Jackson the statutory defect created the issue, here it has no causal connection with it.
There is the fact that everyone involved in the negotiation of Alford’s plea reasonably believed that North Carolina’s statute validly authorized a jury to impose capital punishment upon a verdict of guilty of first degree murder, while limiting the court to the imposition of a sentence of life imprisonment upon a plea of guilty to that offense. Their misconception, revealed by Jackson, is relevant here, only if the effect of Jackson is an invalidation of the death penalty in North Carolina. We have no present basis for a conclusion that it is, as a comparative analysis of the Federal Kidnapping Act and North Carolina’s murder statutes will demonstrate.
The Supreme Court in Jackson carefully considered the history of the Lindbergh Kidnapping Act. As originally enacted it permitted no more than life imprisonment. Later, however, it was amended to permit a jury, in its discretion, to impose capital punishment if the victim was not released unharmed. It was the amendment which created the difficulty and the pressure to forego a defendant’s Fifth and Sixth Amendment rights. It was the amendment which the Court struck, for it reasonably concluded that Congress would prefer that the statute be left in its original form than for the nation to be left with no federal kidnapping statute.
The history of North Carolina’s murder statutes contrasts starkly with that of the Lindbergh Act. Until 1949 the only penalty for first degree murder in North Carolina was death. Neither judge nor jury had any discretion about it, though juries have ways of avoiding the harsh strictures of such laws, and many a defendant whom the jury believed guilty of first degree murder must have been found guilty of a lesser, included offense. In 1949, however, N.C.Gen.Stat. § 14-17 was amended to permit the jury in its discretion to attach to its verdict of guilty a recommendation of mercy. Such a recommendation required the court to impose a sentence of life imprisonment. Four years later, in 1953, § 15-162.1(b) was enacted making a plea of guilty, when accepted by the court, the equivalent of a verdict of guilty with a recommendation of mercy and prescribing the imposition of a life sentence.
The amendments to the North Carolina statutes, like the amendment of the Lindbergh Act, introduced the Jackson infirmity. Though the North Carolina amendments were amelioriating, because they introduced the infirmity into the statutory scheme, they may be rationally said to be unconstitutional, just as the amendment in Jackson, leaving intact North Carolina’s preamendment statute.
The Supreme Court of South Carolina recently dealt with the Jackson problem in State v. Harper, S.C., 162 S.E.2d 712, (1968). It concluded that Jackson invalidated South Carolina’s statute, similar to North Carolina’s § 15-162.1 (b), making a plea of guilty to murder in the first degree, when accepted, the equivalent of a verdict of guilty with a recommendation of mercy. It prescribed the submission of the question of punishment to a jury in every capital case, regardless of the plea.
There is no reason to suppose that North Carolina’s Supreme Court will not come to a similar resolution of the Jackson problem. It has indicated no antipathy toward capital punishment.3 The death penalty has been an integral part of the laws of North Carolina relating to murder since it first became a state, and it is not suggested that it is un*352constitutional per se. Since it was the 1949 and 1953 Acts which introduced the Jackson infirmity, it may be expected that the courts of North Carolina will invalidate them, or portions of them, rather than all or parts of her earlier integrated statute.
Whatever the courts of North Carolina or her legislature may do to meet the problem, we now have no right to lay the infirmity to North Carolina’s hoary authorization of the death penalty rather than to the later statutes which injected into the scheme the Jackson deprivations of Fifth and Sixth Amendment rights. There is presently no basis for our assuming the demise of capital punishment in North Carolina.4
The fact of the misconception of North Carolina’s lawyers and judges that her statutes validly authorized the imposition of the death penalty only by a jury would be relevant, therefore, only if the plea was to the capital offense. In such a case, had the defendant known at the time that his plea would not limit his exposure to capital punishment, he might well have chosen to plead not guilty. That misconception is wholly irrelevant, however, when the plea is to a noncapital offense. Knowledge at the time that the court might impose capital punishment upon a plea of guilty to the capital crime could have had no possible effect upon his choice to plead guilty to the lesser, noncapital offense.
I think, therefore, that Jackson requires the retrial in North Carolina only of those defendants, who, for the purpose of avoiding risk of capital punishment, entered guilty pleas to the capital offense.5
. Before the guilty plea was accepted, there was an informal statement of the State’s evidence, including declarations by the defendant a few moments before *350the homicide of his purpose to kill the victim and admissions, shortly thereafter, that he had done it. If the State’s case at a trial was as strong as the statement indicated, the defendant would have little hope of acquittal.
. I do not here consider the impact which Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and Patton v. North Carolina, 4 Cir., 381 F.2d 636, might have upon retrial. See n. 5 infra.
. The contrary is indicated by its holding that a prosecutor, by asking for life imprisonment only, may not limit the jury’s discretion to impose capital punishment. State v. Denny, 249 N.C. 113, 105 S.E.2d 446 (1958). The jury had directed life imprisonment, but on the prisoner’s appeal the Court ordered a new trial at which the jury’s discretion to impose capital punishment would not be limited as it had been by prosecutor and judge.
. This conclusion is unaffected by Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317. In Pope the Supreme Court, on the authority of Jackson and the Solicitor General’s concession vacated a death sentence imposed under the Federal Bank Robbery Act, 18 U.S.C.A. 2113(e). It permits the imposition of the death penalty if the defendant in the course of the offense or subsequent flight or escape kills or kidnaps someone, but the death sentence may be imposed only if a jury directs it. The Jackson defect was introduced into the statute as originally enacted. There was no prior history of the statute free of the Jackson infirmity. In the context of our problem, therefore, Pope is neutral. It does not militate against invalidation of an ameliorating amendment which introduced the Jackson defect rather than invalidation of portions of an earlier statutory scheme which contained no Jackson defect. If, therefore, Jackson requires invalidation of North Carolina’s present statutory scheme of imposing punishment for murder in the first degree, we have no present warrant for assuming that it invalidates anything other than the amendment which introduced the defect into the scheme, just as Jackson held.
. Quare whether Patton v. North Carolina, 4 Cir., 381 F.2d 636, applies in this kind of a situation to foreclose putting the defendant, who seeks a retrial, to the choice he contends he should have had in the first instance.