(concurring in the result):
I join my colleagues in affirmance of appellant’s conviction, but for reasons not entirely coinciding with those they express. Hence the occasion for this separate opinion.
Appellant does not contest the admissibility of his unsolicited utterances to Sergeant Brown made immediately upon his entry into the Twelfth Precinct stationhouse.1 Instead, the controversy rages over his beyond-the-threshold statements to Sergeant Crooke, which contained damaging admissions highly cogent to the deliberative and premeditative elements of first degree murder. Framed in two broad aspects of this appeal, the questions are whether appellant was duly given the warnings constitutionally prerequisite to in-custody police interrogation and, if so, whether he voluntarily and understandably waived his right to have counsel present during his conversation with Sergeant Crooke.
These are Miranda2 questions and if each is properly to be answered in the affirmative, I perceive no crucial involvement with Mallory.3 For “[a] valid Miranda waiver is necessarily, for the duration of the waiver, also a waiver of an immediate judicial warning of constitutional rights. And what Miranda, as a constitutional interpretation, leaves an accused at liberty to yield, he may * * forego equally under Mallory. Provided the exacting standards for waiver are met, the overriding purpose of Mallory has been served.”4 And if Miranda requirements were satisfied in this case, the statements to Sergeant Crooke qualified for introduction into evidence, unaffected by subsequent delay incidental to appellant’s appearance before a judicial officer.5
The testimony adduced at the hearing on the motion to suppress those statements conflicted sharply on the issue as to whether the Miranda warnings were given. Sergeant Brown said he handed appellant a card on which the warnings were written, and that appellant, after apparently having read the card, stated that he understood the warnings and that he did not desire counsel. It is unnecessary to express a view as to whether this procedure is acceptable as a compliance with Miranda, for Sergeant Crooke testified that he himself read the warnings to appellant and that he responded by *658declining a lawyer. True it is that appellant avowed that he was too “upset” to read the card tendered by Sergeant Brown, that Sergeant Crooke never warned him, and that he understood the latter’s proffer of an attorney to refer to a “personal lawyer,” which he did not have. But it is evident that, with credibility resolved in the Government’s favor, the evidence was sufficient to support its thesis that the warnings were actually given.6
Also introduced was evidence tending to establish appellant’s comprehension of the warnings. Then 34 years of age, he had attended school through the ninth grade, and had served in the Army for three years, during two of which he had
held the rank of corporal. There was little to suggest that he lacked capacity to fathom the rather simple advice and admonitions incorporated into the warnings.7 Sergeant Brown testified that appellant appeared normal and rational when questioned at the stationhouse, and Sergeant Crooke described him as “calm,” “coherent” and “very cooperative.”8 There is nothing in the surrounding circumstances peculiarly susceptible to the interpretation that appellant misapprehended what the officers said he was told.9 This evidence afforded ample foundation for an affirmative conclusion as to appellant’s understanding of the warnings if actually given.10
*659It was for the Government to prove that appellant was suitably warned.11 Beyond that, “a heavy burden rest[ed] on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel,”12 and that demonstration involved application of a subjective test.13 Both issues were submitted to the trial judge, and his decision on the motion leaves no plausible basis for doubting that on each he foünd decisively against appellant.
The suppression hearing focused sharply on the question whether the warnings were given, engendering a major factual dispute. Disposition of the motion involved unavoidably the resolution of that dispute. The trial judge, passing on the motion, also remained acutely alert to the problem of waiver as regards appellant’s statements to Sergeant Crooke. He emphatically rejected the argument that under no circumstances is an intelligent waiver possible. He distinguished appellant’s conduct at the precinct stationhouse, which he decided to let into evidence, from his subsequent execution of the waiver form at police headquarters, which he excluded on Mallory grounds. He attached particular weight to the uncontroverted fact that appellant voluntarily walked into the stationhouse for the purpose of informing the police of the homicide and surrendering himself,14 a circumstance other tribunals as well have considered significant in the determination as to waiver.15 His ruling on the motion embraced the conclusion that Miranda as well as Mallory requirements had been observed.
Thus the Miranda facets urged here were fully explored in a hearing, and the trial judge’s conclusion that Miranda, demands were met draws ready support from the evidence. The intensity of the litigation over warnings and the trial judge’s sensitivity to the matter of waiver demonstrate satisfactorily that his ruling encompassed the factual conclusions which suffice to sustain the Government’s position. Certainly for the future, after the experience in this case, it is the better part of wisdom for trial judges to rule expressly on waiver and to delineate on the record the reasons inducing whatever decision is reached. Here, however, the judge’s statement so far explicated his treatment as to afford a reliable basis for acceptance of the ruling as embracing intrinsically the findings vital to the problems of warnings and waiver.
Before BAZELON, Chief Judge, WRIGHT, McGOWAN, TAMM, LEV-*660ENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, in Chambers.
ORDER
Per Curiam.On consideration of appellant’s suggestion for rehearing en banc, it is
Ordered by the Court en banc that appellant’s aforesaid suggestion is denied.
Statement of Chief Judge Bazelon as to why he would grant rehearing en banc.
BAZELON, Chief Judge:Indicted for first-degree murder, appellant attempted before trial and with the full consent of the government to withdraw his plea of not guilty to the charge and plead guilty to second-degree murder. During the course of questioning to determine the validity of the plea, the following colloquy occurred:
THE COURT: All right. What is it you want to say? You want to say something and I do not want to take your plea unless you tell me what is on your mind.
DEFENDANT: It is nothing anyone else has done. It is the time over at the jail. I have been there about 14 months.
THE COURT: Since when?
DEFENDANT: About 14 months.
THE COURT: Are you .tired of being over there?
DEFENDANT: Yes, sir.
THE COURT: Is that why you are pleading?
DEFENDANT: Yes, sir.
THE COURT: I will not take your plea. All right. Thank you very much. I am sorry, Mr. [Defense Counsel].
DEFENSE COUNSEL: Yes, Your
Honor.
Subsequently, the defendant was tried and convicted of first-degree murder and sentenced to life imprisonment.1
We are therefore faced with a difficult but important question concerning the standards to be used by the District Courts in accepting or rejecting bar-. gained pleas of guilty.2 It seems clear that appellant’s attempt to plead guilty to second-degree murder was, in fact, a bargained plea. Yet it also seems likely that, had the District Court accepted his plea without further inquiry, it would have been open to collateral attack on the grounds of involuntariness.3 This last statement might seem to support the result in this case. But if it does, we have established a doctrine that defendants free on bail may avail themselves of the substantial benefits4 of plea bargaining, whereas those who have theretofore been subjected to the inhuman conditions all too common in detention facilities5 may not, unless they *661are willing to lie to the trial judge and say that these conditions have played no part in their decision to plead guilty.
I do not believe that we are faced with a problem impossible of resolution, although I do believe that resolution will not be easy. In the context of the present case, at least two possibilities present themselves:
1. The plea here was properly rejected because allowing a defendant to plead guilty to second-degree murder in return for dismissal of the charge of first-degree is an unnecessary and therefore unconstitutional6 encouragement of guilty pleas and their attendant waivers of the rights to trial, to trial by jury, and against self-incrimination; or
2. The practice mentioned above is constitutional, and the plea was improperly rejected because the trial judge should have continued inquiring into the circumstances surrounding the tendered quilty plea to determine whether the defendant’s desire to plead guilty had a basis independent of his apparent desire simply to be transferred to an institution other than the D.C. jail.7
I.
The practice of plea bargaining has been widely discussed, praised and damned.8 It is -vulnerable to at least two lines of constitutional attack. The first of these would focus upon the individual defendant. A plea of guilty operates as a waiver of the right to trial by jury, the right to confront and cross-examine one’s accusers, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L. Ed.2d 274 (1969). To be effective, any waiver of these rights must be “voluntary and knowing.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
A plea of guilty is “more than a confession which admits that the accused did various acts.” Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. at 1711.9 If this is so, then at the very least those standards developed to test the voluntariness of confessions should apply to guilty pleas. In this field, classical coercion theory has developed a rigorous test: “the constitutional inquiry is * * * whether the confession was ‘free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). Therefore, any plea of guilty that was in fact induced by promises of *662leniency would be vulnerable to attack as an involuntary confession.10 This approach is in essence the one taken by the Fourth Circuit in Bailey v. MaeDougall,11 and by the two dissenting judges in Shelton v. United States.12
United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), is the starting point for a second line of attack on plea bargaining. The Court there was dealing with a provision of the Federal Kidnapping Act that allowed only defendants who insisted on trial by jury to be sentenced to death. Rather than considering the effect of the statute on a particular defendant who had waived his rights,13 the Court examined the system as a whole. It held that
the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.
390 U.S. at 583, 88 S.Ct. at 1217 (emphasis in original). It can hardly be denied that offering defendants shorter sentences (or, as in the case before us, a guaranteed escape from the death penalty) 14 in exchange for pleas of guilty “encourages” such pleas. Under Jackson, then, the practice of plea bargaining can be constitutionally justified only on grounds of necessity.15
II.
If plea bargaining is constitutional, it should not go unsupervised.16 Yet the present state of the law places even the most conscientious trial judge in a difficult position. As I have already noted, the trial judge in this case was almost certainly correct in not accepting the plea on the basis of the evidence before him.17 The problem is that by remaining silent on the constitutionality of plea bargaining, we do not provide any indication that further inquiry might have validated the plea. If we are to uphold bargained pleas, I think we must also delineate the power and the duty of trial courts, faced with a situation such as the present one, to conduct a further inquiry.
*663Of course, Rule 11 already requires an inquiry into the circumstances surrounding a guilty plea to make certain that the bargain, if any, is fully spread upon the record.18 When it appears that a proffered guilty plea is the result of a bargain,19 particular care must be exercised not only in accepting it,20 but in rejecting it as well. If the bargain it-, self is not a factor that vitiates the plea, it should not be rejected simply because other, impermissible factors may have been acting upon the defendant as well. Particularly when a plea is to a lesser offense than the one charged,21 we should be slow to deny both the defendant and the government the disposition that both believe to be in their best interests.22
Plea bargaining should not be held constitutional sub silentio. If it is permissible, defendants should not be deprived of its benefits either arbitrarily or through governmental misconduct. It is one thing to say that extended incarceration, or despicable prison conditions, may void a plea of guilty and allow a defendant subsequently to demand a trial. It is quite another for us to hold that incarceration or despicable conditions may prevent a defendant from availing himself of the benefits of a system available to defendants who are more comfortable, either because they are out on bail or because they are in a better prison.
A full examination of appellant’s reasons for pleading guilty might well have established that the plea was voluntary and should have been accepted. By terminating the inquiry, we simply punish appellant for his lengthy imprisonment in the D.C. Jail.
. Compare Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Mitchell, 322 U.S. 65, 69-70, 64 S.Ct. 896, 88 L.Ed. 1140 (1944).
. Miranda v. Arizona, supra note 1.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. Frazier v. United States, 136 U.S.App. D.C.-, 419 F.2d 1161, 1166 (March 14, 1969).
. United States v. Mitchell, supra note 1, 322 U.S. at 70, 64 S.Ct. 896, 88 L.Ed. 1140; Mathies v. United States, 126 U.S. App.D.C. 98, 101, 374 F.2d 312, 315 (1967); Coor v. United States, 119 U.S. App.D.C. 259, 260, 340 F.2d 784, 785 (1964), cert. denied 382 U.S. 1013, 86 S. Ct. 621, 15 L.Ed.2d 527 (1966); Bailey v. United States, 117 U.S.App.D.C. 241, 244, 328 F.2d 542, 544-545, cert. denied 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964).
. Appellant does not contend that the warnings written on the card did not satisfy Miranda exactions as to content.
. Not before the District Court at the suppression hearing, nor apparently at any time during the trial, was the report of a psychological examination of appellant conducted within a month of his trial. Appellant tendered that report for our consideration, to which the Government has no objection. The report discloses, inter alia, an evaluation “of low average to average intelligence” without “any serious defects in attention, memory, general knowledge or knowledge of social norms and culturally prescribed behavior.”
. The most that can be found in appellant’s favor on this score is Sergeant Crooke’s statement that appellant seemed to be “a little depressed,” a reaction quite normal after what had happened.
. Such a conclusion is hardly suggested by appellant’s refusal to reveal his difficulties with the deceased or to sign a written confession of the events he had orally related to Sergeant Crooke. In the light of his willingness to delineate how and where he committed the homicide, his unwillingness to explain why he did it logically indicates merely that the topic was painful for reasons other than the impending legal consequences of talking about it. The refusal to sign a written statement came only after appellant had completed his oral version to Sergeant Crooke, on which the sergeant took notes without protest by appellant, and the discussion with appellant terminated immediately upon the refusal. Cf. Miranda v. Arizona, supra note 1, 384 U.S. at 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694. Moreover, the reason appellant gave for declining to sign was simply that “I already told you about it and you wrote it down.” Significantly, when at police headquarters appellant again refused to sign a written statement —once more for the stated reason, related by Sergeant Crooke, that “I already had his statement and that he had already told me what had happened * * * ”— he nevertheless signed a waiver form containing the Miranda warnings that he had been given at the stationhouse. These circumstances distinguish our remand in Frazier v. United States, supra note 4, where the accused refused to permit note-taking on his narrative and we had neither evidence nor findings to dissipate the potential of that development as an indication that he misunderstood the legal efficacy of an oral confession. See id. at 10-13.
. A finding of knowledgeable and intelligent waiver rests properly on “the particular facts and circumstances surrounding [the] case, including the background, ex-erienee, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See also United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), cert. denied 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968); Narro v. United States, 370 F. 2d 329 (5th Cir. 1966), cert. denied 387 U.S. 946, 87 S.Ct. 2081, 18 L.Ed.2d 1334 (1967).
There was little contest at the hearing specifically on the issue of comprehension. Appellant’s claim was not that the warnings were misunderstood but that they were not forthcoming at all, and his *659evidentiary presentation was concentrated on that claim. The trial judge expressly declined to credit the testimony of a friend of appellant that he had smoked a cigarette containing some kind of “dope” on some undefined date during the month on which the homicide occurred.
. Miranda v. Arizona, supra note 1, 384 U.S. at 475, 479, 86 S.Ct. 1602, 16 L.Ed. 2d 694.
. Id. at 475, 86 S.Ct. 1602.
. Frazier v. United States, supra note 4, 136 U.S.App.D.C. at -, 419 F.2d 1168 n. 31.
. “[H]ow any information at all with respect to this defendant first came to the attention of the police authorities,” said the judge, “has a bearing with respect to the defendant’s state of mind, and as that state of mind continued throughout whatever period of questioning, interrogation, was undertaken on the morning of his arrest.”
. “Of prime importance in determining whether there was an effective waiver of these rights is the fact that appellant, apparently acting under some parental guidance, voluntarily surrendered himself to police with the intention of telling them ‘what had happened.’ That he did so tell the police within a very short time after the interrogation had begun is likewise significant. In considering the conduct of the appellant, therefore, as it bears on the question of waiver, we think it manifest that he was not a person, such as contemplated by the Miranda decision, who, by reason of the custodial interrogation, is suddenly placed under a compulsion to speak where he might not otherwise do so.” Brown v. State, 3 Md.App. 313, 239 A.2d 761, 762, 766 (1968). Compare Davidson v. United States, 371 F.2d 994, 996 (10th Cir. 1966).
. It does not appear from the transcript that the plea was invalid except insofar as the statements quoted in text may indicate.
. See Griffin v. United States, 132 U.S. App.D.C. 108, 405 F.2d 1378 (1968); McCoy v. United States, 124 U.S.App. D.C. 177, 363 F.2d 306 (1966). For a different aspect of the same problem, see Scott v. United States, 135 U.S.App.D.C. -, at ---, 419 F.2d 264 (Feb. 13, 1969).
. In at least one case, the Solicitor General based his conclusion that a plea of guilty was improperly obtained at least partly on the fact that the defendant had been in jail for 18 months and his insistence on trial was likely to result in further incarceration in “county jails” pending trial. Memorandum for the United States at 13, Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
. See A. Amsterdam, B. Segal, & M. Miller, Trial Manual for the Defense of Criminal Cases §§ 206-219 (1967).
. Speaking of long-term detention facilities, the President’s Commission on Law Enforcement and the Administration of Justice concluded that “ [ojvercrowding and idleness are the salient features of some, brutality and corruption of a few others.” It then added that “local jails [in which most pretrial incarceration takes place] are generally the most inadequate in every way.” Task Force Report; Corrections 4 (1967).
. See United States v. Jackson, 390 U.S. 570, 582-585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). Of course this would support the result in the present case; but if this is the ground for decision, it should certainly be made explicit.
. The result in the present case could also be supported on the ground that counsel waived his client’s right not to have his guilty plea rejected by failing (a) to object to the rejection at the time it was made, (b) to renew the motion to plead guilty at the commencement of trial, and (c) to renew the motion at the close of the government’s case. While dubious about the validity of any such argument, I note here only that if that is the ground for decision the bar should be told.
. See D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966) (extensive empirical study) ; Note, Official Inducements to Plead Guilty: Suggested Morals for a Marketplace, 32 U.Chi.L.Rev. 167 (1964) (practice constitutional and proper absent judicial participation); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964) (practice proper and limited judicial participation encouraged) ; Note, Another Look at Unconstitutional Conditions, 117 U.Pa.L.Rev. 144 (1968) (practice unconstitutional).
. See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed. 2d 473 (1963) ; Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
. That a guilty plea was made subsequent to a promise of leniency would, under this approach, not necessarily imply that it was the product of the promise, and therefore tainted. See United States v. Jackson, 390 U.S. 570, 583, 88 S.Ct. 1209 (1968). But if the plea was influenced by the promise, it would be involuntary.
. 392 F.2d 155 (4th Cir. 1968).
. 242 F.2d 101 (5th Cir.), reversed en banc, 246 F.2d 571 (5th Cir. 1957), reversed on confession of error by the Solicitor General, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). Admitting that in his view the plea was tainted, the Solicitor General relied on petitioner’s long confinement and on the government’s at lpast arguably improper conduct (aside from the mere bargain itself). Memorandum for the United States, at 13-14.
For a more extensive discussion of these cases, see Scott v. United States, supra note 2, at 135 U.S.App.D.C. at ---. 419 F.2d 264 at 272-274.
. “[T]he fact that the Federal Kidnapping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.” 390 U.S. at 583, 88 S.Ct. at 1217.
. A defendant who pleads guilty to second-degree murder in exchange for dismissal of first-degree murder charges escapes all possibility of being put to death and is subject to precisely the pressures condemned in Jackson.
. The briefs in Jackson devoted considerable space to a discussion of the possible impact of the decision on the practice of plea bargaining. See Note, Another Look at Unconstitutional Conditions, 117 U.Pa. L.Rev. 144, 179-180 (1968). Although the Court in Jackson took some pains to emphasize the importance of guilty pleas to the criminal process, it did not mention plea bargaining. 390 U.S. at 584-585, 88 S.Ct. 1209.
. See Scott v. United States, supra note 2, 135 U.S.App.D.C. at ---, 419 F. 2d at 264; id. at 274-278, 419 F.2d 264 at 279-281 (concurring opinion of Judge Wright).
. See pp. 1-2 supra.
. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed. 2d 418 (1969) : “Rule [11] is intended to produce a complete record at the time the plea is entered of the factors relevant to [the] voluntariness determination.” (emphasis added). See also Scott v. United States, supra note 2, 135 U.S.App. D.C. — at — - —, —, 419 F.2d 264, at 274-275, 279.
. This should not be a difficult determination, since it appears that most plea bargaining in the District of Columbia involves a plea of guilty to a lesser offense than the one charged. See Scott v. United States, supra note 2.
. This is so because the line between permissible and impermissible bargains may be a fine one. See pp. 661-662 supra and cases there cited.
. If a plea is sought to be entered only to the offense charged, its rejection will have far less serious consequences for the defendant. Although he will be forced to the uncertainty and expense of trial, he will not he liable to punishment greater than could have been imposed upon his guilty plea, and even judges who normally impose a greater sentence upon defendants who insist on trial would seem unlikely to apply the same sentencing differential to defendants whose plea of guilty was rejected.
. Courts normally shy away from anything deemed to be an interference with prosecutorial discretion, except in the most extreme cases. See the cases collected in Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 922-925 (1968); United States v. Foster, 226 A.2d 164 (D.C.Mun.App.1967), and cases cited. If judges are free to reject bargained pleas, the result is that judicial control of prosecutorial discretion is minimal when it is exercised to an individual’s detriment, but substantial when exercised in his favor.