(dissenting): In the field of federal constitutional law, the decisions of the United States Supreme Court are of course binding upon all state courts. Our clear responsibility is to apply those decisions with due regard for their tenor, principles and goals in analogous situations with the aim of determining a matter as we con*295scientiously believe that Court would if the case were before it. Roadway Express, Inc., et al. v. Director, Div. of Taxation, 50 N. J. 471, 475 (1967), appeal dismissed, 390 U. S. 745, 88 S. Ct. 1443, 20 L. Ed. 2d 276 (1968). See Schlemm v. Schlemm, 31 N. J. 557, 571 (1960); G. P. Putnam’s Sons v. Calissi, 50 N. J. 397, 398 (1967). On that approach we have no hesitancy in concluding that N. J. S. 2A :113-3 and N. J. S. 2A :113-4 may not constitutionally stand in their present form under the recent holdings in United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) and Pope v. United States, 392 U. S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317.
In Jackson the Court struck the death penalty in the Federal Kidnaping Act which provided for such punishment “if the verdict of the jury shall so recommend,” and for imprisonment for a term of life “if the death penalty is not imposed.” 18 U. S. C. § 1201(a). Under the statute a defendant could forego his fifth amendment right not to incriminate himself by tendering a plea of guilty which, if accepted by the trial judge (F. R. C. P. 11; Lynch v. Overholser, 369 U. S. 705, 719, 82 S. Ct. 1063, 8 L. Ed. 2d 211, 220 (1962)), would avoid the possibility of the death penalty. Or he could forego his sixth amendment right by tendering a waiver of jury trial which, if approved by the trial judge and consented to by the Government (F. R. C. P. 23 (a); Singer v. United States, 380 U. S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965)), would result in nonjury trial without the possibility of the death penalty. Under either alternative, he was placed under extraordinary inducement to forego a constitutional right, for that was the only way he could insure himself against the awesome consequence. As forcefully expressed by Justice Stewart for the Court in Jackson, the inevitable and unconstitutional effect of the statutory arrangement was “to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” 390 U. S., at p. 570, 88 S. Ct., at p. 1216, 20 L. Ed. 2d, at p. 147.
*296In. the course of its argument in Jaclcson, the Government noted that Congress could have made capital punishment mandatory in all cases and that its selective death penalty procedure might therefore favorably be viewed as “ameliorating.” Cf. State v. Sullivan, 43 N. J. 209, 245 (1964), certiorari denied, 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed: 2d 477 (1966). Assuming all that, Justice Stewart pointed out that the congressional goal could be achieved “without penalizing those defendants who plead not guilty and demand jury trial” and without needlessly chilling “the exercise of basic constitutional rights.” 390 U. S., at p. 582, 88 S. Ct., at p. 1216, 20 L. Ed. 2d, at 147. In response to the suggestion that the trial judges might be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial, he stressed that the evil in the federal statute was “not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.” And he noted: “the fact that the Pederal Kidnaping Act tends to discourage deefndants 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 p. 583, 88 S. Ct., at p. 1217, 20 L. Ed. 2d, at p. 148.
In Pope v. United States, supra, the defendant was convicted by a jury and was sentenced to death under the Pederal Bank Robbery Act. That statute provided that a person found guilty shall be imprisoned for not less than ten years “or punished by death if the verdict of the jury shall so direct.” 18 U. S. C. A. § 2113(e). The Government conceded that under Jaclcson the Bank Robbery Act was unconstitutional and the Supreme Court, in the light of the concession “and upon an independent examination of the record” vacated the judgment and remanded, apparently “for resentencing.” 88 S. Ct., at p. 2145. In Spillers v. State, Nev. 436 P. 2d 18 (1968), cited in Jackson (390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d, at p. 147), the Nevada Supreme Court struck its statute which authorized a death penalty where the *297defendant was tried by a jury but not where he pleaded guilty or waived jury trial. In the course of his opinion for the court, Justice Zenoff referred to the possibility of death as the “terrible price” payable under the statute for excercise of the right to jury trial and he noted that “in some instances the compelling force may be so great as to cause one who is not guilty to plead guilty, or at least to attempt to place his case before the court at trial without a jury.” 436 P. 2d, at p. 22.
In Laboy v. State of New Jersey, 266 F. Supp. 581 (D. N. J. 1967), Judge Lane found no significant difference between New Jersey’s statutory arrangement and the Federal Kidnaping Act, though he disagreed with the lower court’s declaration of unconstitutionality in Jackson. 266 F. Supp., at p. 585. See also 22 Rutgers L. Rev. 167, 175 (1967) where the author, discussing the lower court opinion in Jackson, stated that “legislation such as the New Jersey homicide statute (which expressly precludes infliction of the death penalty if a defendant pleads non vult) would be clearly unconstitutional under the Jackson holding.” Indeed, even the brief submitted to this Court by the Bergen County Prosecutor acknowledged unequivocally that “the rationale of United States v. Jackson applies to the New Jersey statutory scheme.” Nonetheless, the majority opinion embraces a different point of view although its differentiations do not appear to us to be at all meaningful in the present context.
The opinion in Jackson makes it clear that the unconstitutionally operative effect of New Jersey’s legislative scheme may not be disregarded simply because its motivation was to benefit murder defendants; and it makes it equally clear that the power to reject the plea (a power seldom exercised where the prosecutor has recommended its acceptance) presents no significant factor. 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d, at pp. 147-148. It is true that unlike the federal practice, New Jersey omits the possibility of the non jury trial. But that omission may well aggravate rather than mitigate the constitutional infirmity found in Jackson.
*298If a New Jersey defendant indicted for murder seeks to avoid the possibility of the death penalty, his only option is to tender a non vult plea, thereby waiving both his constitutional right not to incriminate himself and his constitutional right to a jury trial. In a sense his plight is even more desperate, and the burdens on his exercise of constitutional rights even more significant, than under the Federal Kidnaping Act where the defendant may seek to avoid the possibility of the death penalty by waiving his sixth amendment right while still retaining his fifth amendment right not to incriminate himself.
The encouragement to a New Jersey murder defendant to waive his constitutional rights is not only needless, since as pointed out in Jaclcson other constitutional avenues are readily available (390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d, at p. 147), but is markedly strong. As Judge Forman aptly put it in Application of Cicenia, 148 F. Supp. 98 (D. N. J. 1956), affirmed, 240 F. 2d 844 (3 Cir. 1957), affirmed, Cicenia v. La Gay, 357 U. S. 504, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958), the difference between “pleading non vult and fighting on the merits is the difference between insuring life and risking death” (148 F. Supp., at p. 101) and consequently “in capital cases in New Jersey there is an extraordinary encouragement to the accused to offer a plea of non vult if the court will accept it.” 148 F. Supp., at p. 102.
In Spillers the Nevada court indicated that the inducement might be so compelling as to cause one who is not guilty to plead guilty. 436 P. 2d, at p. 22. To that may be added the high danger in our own State that, in order to avoid the possibility of the death penalty, one guilty only of a lesser included offense would be induced to plead non vult unrestrictedly to the charge of murder. Indeed, under New Jersey practice, the non vult plea must be unrestricted and to the indictment itself, thereby effectively precluding a defendant from legally establishing that the offense was second degree murder or manslaughter or even *299lesser in nature. See State v. Williams, 39 N. J. 471, 479, certiorari denied, 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). It seems hardly necessary to reiterate at this point that, under New Jersey’s present statutory scheme, such a defendant in particular is being unnecessarily deterred from exercising his rights of nonincrimination and jury trial and is needlessly being penalized for the assertion of such constitutional rights, all within the declared proscriptions of Jackson 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d, at pp. 147-148.
Assuming that Jackson applies, the majority opinion holds that the non vult plea must go. This of course defeats the legislative policy which, ever since 1893 (L. 1893, c. 36), has declared that a murder defendant shall have the right to tender a non vult plea which, if accepted, will preclude the possibility of the death penalty. This policy was reasserted in the 1951 revision of the statutes. N. J. S. 2A: 113-3. It is of course true that the Legislature has also expressed a policy in favor of the continuation of the death penalty when imposed by the jury (N. J. S. 2A :113 — 4) but under Jackson it is no longer possible to fulfill both of the legislative policies and a choice must now be made. We agree with the majority that retrogression to the pre-1893 mandatory death penalty would be unthinkable. We also agree that it is the Legislature’s responsibility to choose for the future what policies should be followed, provided they are consistent with Jackson. But it appears to us that, pending such future legislation, the striking of the death penalty rather than the non vult plea would, in the light of modern-day movements and considerations, be the more satisfactory course, more nearly comport with legislative wishes, and more clearly conform to the tenor and rationale of Jackson.
In Jackson the Government had suggested that the federal act could be sustained by judicial elimination of all guilty pleas and waivers. Justice Stewart noted that this would require full-dress jury trials in all cases and, “apart *300from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt,” would “rob the criminal process of much of its flexibility.” 390 U. S., at p. 584, 88 S. Ct., at p. 1218, 20 L. Ed. 2d, at p. 148. That course would not conform with the. congressional wishes; nor is it likely to conform with the legislative wishes for the unfairness to the individuals concerned would be gross and patent and the resulting burden on the judicial system would be overwhelming.
In Jaclcson the death penalty was struck while the remaining portions of the statute were permitted to stand. The Court expressed the view that Congress would undoubtedly have enacted the statute without the death penalty if it had then been informed that it could not be included; it outlined the history of the statute, noting that it confirmed “what common sense alone would suggest.” 390 U. S., at p. 586, 88 S. Ct., at p. 1219, 20 L. Ed. 2d, at p. 149. However, in Pope, the opinion striking the death penalty in the Bank Eobbery Act made no mention at all of its history. Similarly in Spillers the court, in eliminating the death penalty provision in its rape statute, made no reference to its history or to the possibility that pleas and waivers might be stricken and the death penalty retained; such striking would involve great expansion of the use of the death penalty at a time in history when it is everywhere under attack and is being restricted more and more. In Spillers the death penalty fixed by the jury was vacated and the defendant was sentenced to a term of years. 436 P. 2d, at pp. 22-24. See State v. Laws, 53 N. J. 494 (1968).
The majority suggests that striking of the death penalty might still leave a "Jaclcson-type difficulty” in that a defendant who pleads non null would receive life or a term of years whereas a defendant found guilty by a jury of first degree murder would necessarily receive life. But the jury might return a lesser verdict and, in any event, the inducement here would be insignificant when compared to the death penalty stricken in Jaclcson. The law has always *301been administered with pragmatic recognition of the fact that the difference between the death penalty and imprisonment entails more than matters of logic and degree. See State v. Laws, supra, 51 N. J. 494; cf. Meszaros v. Gransamer, 33 N. J. 179, 188 (1957); State v. Wolf, 46 N. J. 301, 308 (1966). Jackson was concerned solely with the grisly choice between a plea or waiver with an assurance of no death penalty, and a jury trial with the danger of a death penalty; it was not at all concerned with and did not mention the lesser inducements incident to the ordinary, though nonetheless troublesome, “plea bargaining.” See Arnold, Law Enforcement — An Attempt at Social Dissection, 63 Yale L. J. 1 (1932); Note, Guilty Plea Bargaining, 113 U. Pa. L. Rev. 865, 878 (1964).
The urgent need for legislative restudy of New Jersey’s murder laws is evidenced not only by Jackson but also by the tenor of other Supreme Court opinions such as Witherspoon v. State of Illinois, 391 U. S. 510, 88 S. Ct. 1770, 30 L. Ed. 2d 776 (June 3, 1968), There the Court upset an Illinois statute which provided for the exclusion in murder trials of jurors who stated that they had conscientious scruples against capital punishment or stated that they were opposed to it. Its opinion pointed to increased disfavor of the death penalty (88 S. Ct. 1771, fns. 17-19) and left open issues (88 S. Ct. 1771, fns. 10, 11, 18) which will undoubtedly be among those pressed in the future by legal representatives of the growing number of Americans who, abhorred by the State’s taking of life and disturbed by the baneful effect of capital punishment on the administration of criminal justice, seek replacement of the death penalty by life imprisonment. Additional issues such as bifurcation and standards, though dealt with by the majority, may nonetheless appropriately be given further consideration in the course of legislative restudy. It also seems to us that a most unfortunate aspect of the majority opinion, which disserves the public greatly, is that it reaches out to sanction completely the status quo thereby jeopardizing impending murder *302proceedings and lending itself to legislative inaction in a field which cries out for early action.
In A-147 and A-164 we would vacate the death sentences and direct that the defendants be imprisoned for life; in A-148 and A-163 we would direct that the death penalty be eliminated from the forthcoming trials of the indictments.
For affirmance — Chief Justice Weinteaub and Justices Eraístcis, Proctor, Sohettino and Hanemaet — 5.
For modification — Justices Jacobs and Hall — 3.