(concurring). Judicial management is high among present priorities. The courts being unable to meet the demands upon them, it is understandable that among the solvents would be a proposal that the judiciary borrow rudimentary principles from the business world. The first rule of good management must be that management shall manage. A work force cannot be effective if it cannot know how it is to function. I can think of no area in which guidance is more vital than the area of criminal law, for it is an area of intense activity, touching every citizen. The case before us dramatizes the failure to provide direction and suggests the Eederal and State judiciaries cannot meet their responsibilities unless some rules are changed.
Let us look for a moment at our basic constitutional scheme from which the management problem has emerged. Thirteen uneasy States agreed upon a federal plan under which the big States could not swallow the little ones. The federal government received an assigned role, all else being reserved to the States. The responsibilities of the judicial systems reflect that division. As to federal issues the Eederal Supreme Court is supreme and the State Supreme Court is subordinate, while as to all other matters the State Supreme Court is supreme and the Eederal Supreme Court is subordinate. The Eederal Supreme Court and the State Supreme Court may thus be thought to be equally unequal, but there is a rub, for the Eederal Supreme Court has the last word with respect to what the federal jurisdiction includes. Thus the two judiciaries are unequally unequal. And the line between the jurisdictions of the judiciaries being quite imprecise, the power to say where the line lies is the more meaningful on that account.
*70The area of final responsibility reserved to the State Supreme Court vastly exceeds, the area delegated to the Federal Supreme Court. One need but compare the calendars in the trial courts and the numbers of trial judges to appreciate the respective demands upon the two systems. Among the first demands upon the State is the protection of the citizen from criminal attack in his home, in his work, and in the streets. The citizen looks to the State judiciary for fair and effective prosecution of violators of the criminal law. Yet, although the State Supreme Court is thus charged with the responsibility for that result, its power to lay down the rules has been shifted to the Federal Supreme Court by a run of its decisions over the past 12 years or so. Those decisions were not at all compelled by “my copy” of the Constitution or its history. Surely the Federal Supreme Court would not have been derelict if it had left the final power where it had reposed for almost 200 years.
This shift of power is inherently abrasive. To an ardent advocate of “State’s rights,” the shift of power is of course irritating. To one who is not at all excited in those terms, the shift of power may be no less disturbing, for he wants the power to reside where it can better serve the citizens and he questions the ability of the Federal Supreme Court 'to manage the additional area it has allocated to itself. If Mr. Justice Holmes was correct when he said the life of the law is experience and not logic, it is understandable that State judges do not believe their federal counterparts are better informed to make value judgments in this area of intense State experience. Indeed, a lack of realism is the persistent criticism of the federal decisions to which I have referred. But apart from all of this, the shift of power has separated the responsibility for the result from the power to lay down the rules. It is this separation which has led to unfortunate friction between the judiciaries. Many citizens, unaware of the significance of this shift of power, continue to charge the State judiciary with the shortcomings in this critical area, while the State judiciary chafes because it is *71unable to do what it believes ought to be done, and to boot, it cannot find out in some expeditious way precisely what the Federal Supreme Court wants it to do.
The problem is aggravated by the fact that the Federal Supreme Court does not have the options available to the State Supreme Court. Whereas the State Supreme Court can make new law at a nonconstitutional level, thus leaving the Legislature free to disagree and the Court itself free to change its mind more comfortably if experience should reveal it erred, the Federal Supreme Court cannot itself lay down a rule without attributing it to some constitutional command. It might have been more serviceable merely to have found a federal interest in a subject justifying congressional action rather than to attribute some final solution to the Constitution itself. But that is not the course the Federal Supreme Court pursued. Rather the Court fashioned its own rules and said the Constitution made it do so.
In that process the Federal Supreme Court had to read the Constitution to embrace subjects never thought to be within the Constitution’s reach. Indeed the outside limits of the process are not yet visible. After all, good law is a matter of “fairness,” and one need but insist that a given rule is “fundamentally” unfair to call upon the Constitution to establish his view. The tendency is thus to claim “constitutional” moment in matters which, in my appraisal, are quite minimal in a scheme of values. The more the Constitution is found to be intolerant of disagreement upon arguable issues, the deadlier becomes the grip upon the genius of men. The price of such intolerance may be sterility. It is true that on occasions, the Federal Supreme Court suggests a new constitutional rule will not deny the States an opportunity to devise another approach. See Ker v. California, 374 U. S. 23, 33-34, 83 S. Ct. 1623, 1629-1630, 10 L. Ed. 2d 726, 738' (1963), as to arrests, searches and seizures; Miranda v. Arizona, 384 U. S. 436, 444, 467, 86 S. Ct. 1602, 1612, 1624, 16 L. Ed. 2d 694, 706, 719-720 (1966), as to confessions; and United States v. Wade, 388 U. S. 218, 239, *7287 S. Ct. 1926, 1938, 18 L. Ed. 2d 1149, 1164 (1967), as to line-ups. But no one seems to have found elbow room.
And when it is discovered that the Constitution itself commands a rule, the problem of retroactive application arises, for it sounds horrendous to refuse thus to apply a rule which, by hypothesis, however fictional, the Constitution itself has always demanded. There is no such compulsion when a State Supreme Court makes law at a nonconstitutional level.
The impact of the expansion of the reach of the Constitution in this area is heightened by some further doctrines the Federal Supreme Court has developed. One is that a “constitutional” right is not lost unless it is “waived.” Although the Constitution of course secures constitutional rights against legislative impairment, the Constitution nowhere suggests that such rights, unlike rights resting in the common law or in statute, are thrust upon the individual and can be lost only if he elects by some positive decision to forego them. But the Federal Supreme Court has introduced _ a doctrine of waiver, calling for a relinquishment which must not only be voluntary but also “intelligent,” a concept of uncertain meaning in this area. See State v. McKnight, 52 N. J. 35 (1968). Another doctrine entitles a State defendant to seek post-conviction relief without limit until he has exhausted every conceivable “constitutional” claim by proceedings first in the State courts if they will take the issue and then in the federal courts, no matter how belatedly the claim is raised, so long as he did not voluntarily and intelligently “waive” it. Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). A case can become a shuttlecock passing between the Federal and State judiciaries for years.
Nor does the foregoing tell the whole story. Commonly a constitutional question involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience *73of the one who judges. Federal trial judges are thus asked to “review” the judgments of the State Court by no more than a substitution of their factual evaluations for those of the State Court. Hence it may come to pass that a dozen or more years after a conviction is upheld by the State Supreme Court, a man may come to a federal bench who will pit his experienced or sometimes inexperienced assessment against the seasoned evaluations of a host of State judges, and will thereby undo the State court judgment without so much as an intimation of a shadow of a. shadow of a doubt as to the truth of the conviction. The public is understandably confused and may wonder how the State judiciary could be so grievously unjust, although all that is involved is the disagreement of one man, who, if he sat in the State judiciary would have been reversed unanimously or if he sat in the State Supreme Court would have been a lone dissenter. To say he would thus have fared as a member of the State judiciary does not prove he was wrong, but it does put the matter in perspective. I of course intend no broadside against the judges who sit in the United States District Court. I know them very well. They are good men, doing what they conceive the Federal Supreme Court expects them to do. Indeed they may be as unhappy as I with the present scene. My point is that the doctrines of the Federal Supreme Court have led to an impossible situation. There is more than enough work for both judicial systems. Good management calls for husbanding of their energies and the elimination of conflicting judgments which really do little if anything to advance justice.
The case now before us serves to illustrate the difficulties a State judiciary experiences because of the shift to the Federal Supreme Court of the power to lay down the rules in an area of State responsibility.
United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), involved the federal kidnapping statute. The majority of the Supreme Court construed the statute to mean the death penalty could be imposed only by *74a jury so that a defendant who contested his guilt before a judge without a jury would experience no greater penalty than life imprisonment. The statute being so construed, it had to follow that the Sixth Amendment right to trial by jury was impaired since a price was obviously exacted for asserting that right. The majority opinion, however, found also an invasion of the Fifth Amendment, on the theme that there was coercion to plead guilty. I could not understand, and still do not, how the Fifth Amendment was involved, for a defendant did not have to plead guilty to avoid the threat of the death sentence. The coercion ran only to the choice of a trial with or without a jury; it had nothing to do with the question whether to defend or not to defend. Indeeed the majority opinion itself acknowledged that its interpretation of the kidnapping statute “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, 20 L. Ed. 2d at 148. Rather, the opinion says, the statute “needlessly encourages" a guilty plea, although how that can be when a defendant can plead not guilty and be tried by a judge is not explained.1 Ordinarily the Federal Supreme Court avoids an avoidable constitutional question. If Jackson had rested upon the Sixth Amendment alone, the decision would have been complete. That the Court reached for a Fifth Amendment issue was foreboding, but I could not be sure as to what.
It was evident that our homicide statute would be involved if Jachson meant to lay down a rule that a statute will violate the Fifth Amendment if the death penalty cannot be imposed upon a plea of guilty. Our statute would be involved because it provides that if a plea of non vult to the indictment is accepted, the penalty shall be life imprisonment or the punishment which may be imposed on a convic*75tion for murder in the second degree. N. J. S. A. 2A:113-3. Although I was not familiar with the statutory schemes in all the other States which had capital punishment, it was inconceivable that there was not some equivalent method in each whereby a defendant could avoid the death penalty, whether by a plea of guilty to murder in the first degree or by a plea to a lesser included charge. Whatever the technique, the issue would be the same, unless mere form or words could be triumphant. And it seemed to me that there was also implicated the widespread practice known by the unpleasant label “plea bargaining”; for whatever may be the offense charged in the indictment, the same ethics are involved in the acceptance of a plea of guilty to the charge or to some lesser one upon an agreement for more lenient treatment. To say the death penalty is singularly different and to insist that every defendant shall run the risk of death, is to me regressive, for it holds the inevitable promise of a higher incidence of executions. Yet, if the Federal Supreme Court found that intent in the Constitution of the United States, it would be my plain obligation to accept that view and enforce it.
Had the Supreme Court of Hew Jersey handed down an opinion like Jaclcson, one of the assignment judges responsible for judicial administration in the several vicinages of the State, would have immediately telephoned the Chief Justice, as administrative head of the judiciary, and asked quite bluntly for some guidance as to what was expected. Specifically, the question would be whether the State Supreme Court intended to declare the homicide statute unconstitutional, and if so, whether the death penalty or the non vult plea survived. That guidance would be imperative, for the trial bench must know what to do with murder indictments. But there is no established line of communication between the State Supreme Court and the Federal Supreme Court whereby such information, so obviously needed for intelligent management of judicial biisiness, can be had. All that we could do was to invite the immediate presentation *76of the question whether Jaclcson wiped out the death penalty in our State. We did so, with the hope that on an appeal from our decision the Federal Supreme Court would quickly provide essential administrative direction.
Jaclcson was decided on April 8, 1968. The issue was argued before us on June 3, 1968, and our opinion was filed on July 3, 1968. State v. Forcella, et al., 52 N. J. 263. We set forth at length why we thought Jaclcson did not apply to our homicide statute, and to avoid further delay in this urgent area, we dealt with the question whether, if Jaclcson did apply, it would be the death penalty or the non vult plea which would fall. That issue we conceived to be one of State law as to which our view would bind the Federal Supreme Court. Upon an examination of the history of our homicide statute we concluded that if Jaclcson applied, it was the non vult plea that would fall.
Forcella, and also Funicello, another defendant in those proceedings, promptly sought review by the Federal Supreme Court. Forcella died of natural causes and his proceeding was dismissed. On June 28, 1971, three years after our decision, the Supreme Court reversed the death penalty in the Funicello matter in a summary way to which I will refer later on. In the intervening three years we and no doubt most other jurisdictions handled murder cases on the assumption that our respective statutes were valid.
During that three-year period, we were led to believe that our statute was not controlled by Jaclcson, not only because the Federal Supreme Court did not act upon Funicello but also because of other opinions it handed down during that period. They were Brady v. United States, 397 U. S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (May 4, 1970) ; Parker v. North Carolina, 397 U. S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (May 4, 1970); and North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (Nov. 23, 1970). In each of those cases, the defendant sought unsuccessfully to attack his guilty plea, on the basis that the death penalty was unconstitutional under Jackson and hence that his plea *77was induced by or coerced by his mistaken belief that the death penalty was a risk he faced. Brady involved the federal statute found invalid as to the death penalty in Jaclcson. Parker and Alford involved a State statute which the defendants argued to be within Jackson.
Brady held that the guilty plea was nonetheless voluntarily and intelligently made. In the course of the discussion, the majority opinion dealt broadly with the subject of plea bargaining, saying (397 U. S. at 751-753, 90 S. Ct. at 1471, 25 L. Ed. 2d at 758-759):
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious—■ his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.
A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of *78the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.
The discourse just quoted, appearing in a case involving a statute authorizing a death penalty, seemed to me to say that capital punishment and plea bargaining were compatible.
In Parker, decided the same day as Brady, the North Carolina statute at the time of defendant’s plea provided for the death penalty unless the jury recommended life imprisonment, and for life imprisonment if a plea of guilty were accepted. We thought it significant that while the dissenting opinion said that Jackson applied, the majority studiously avoided a decision upon that question, saying only that “It may be that under United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed in North Carolina at the time of Parker’s plea.” 397 U. S. at 794-795, 90 S. Ct. at 1461, 25 L. Ed. 2d at 790-791. Of moment too was the dissenting opinion’s response to the discussion of plea bargaining in Brady (397 U. S. at 808-809, 90 S. Ct. at 1479, 1480, 25 L. Ed. 2d at 798-799) :
The principal flaw in the Court’s discourse on plea bargaining, however, is that it is, at best, only marginally relevant to the precise issues before us. There are critical distinctions between plea bargaining as commonly practiced and the situation presently under consideration—distinctions which, in constitutional terms, make a difference. Thus, whatever the merit, if any, of the constitutional objections to plea bargaining generally, those issues are not presently before us.
We are dealing here with the legislative imposition of a markedly more severe penalty if a defendant asserts his right to a jury trial and a concomitant legislative promise of leniency if he pleads guilty. This is very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power. No such flexibility is built into the capital penalty scheme where the government’s harsh terms with respect to punishment are stated in unalterable form.
*79Still speaking of pleas of guilty, the dissent said in its footnote 16 that “I do not consider the case of a death penalty scheme that is not unconstitutional under Jaclcson.” The import was that the death penalty could be imposed constitutionally even though there was an opportunity for lesser punishment on a plea. The dissent added that the threat of the death penalty was “a factor to be given considerable weight in determining whether a defendant has deliberately waived his constitutional rights” (397 U. S. at 810, 90 S. Ct. at 1480, 25 L. Ed. 2d at 799), thus again seeming to agree with the majority’s statement in Brady with respect to the need and justice of plea bargaining even though capital punishment is involved.
What the dissent appeared to find objectionable was the fact that there was a “legislative imposition” of the death penalty and a “legislative promise of leniency if he pleads guilty.” But that is always the case when the bargained result is a plea to less than all charges or to a lesser included offense. The legislature fixes the maximum for all offenses. If a defendant charged with armed robbery pleads to larceny, he thereby avoids one legislatively prescribed maximum and knows he can get no more than the legislatively imposed maximum for the lesser offense. Would the North Carolina statute have fared better if instead of a guilty plea to murder in the first degree, the plea was entered to murder in the second degree? If that is what the turmoil is about, we would need but delete a few words to make our statute match that concept.2 It cannot be that the Constitution is that interested in mere form.
*80Alford involved a plea of guilty to murder in the second degree entered by a defendant indicted for murder in the first degree. Again the majority eschewed a denunciation of the State statute, saying only that “In reaching its conclusion, the Court of Appeals relied heavily on United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), which the court read to require invalidation of the North Carolina statutory framework for the imposition of the death penalty because North Carolina statutes encouraged defendants to waive constitutional rights by the promise of no more than life imprisonment if a guilty plea was offered and accepted.” 400 U. S. at 30, 91 S. Ct. at 163, 164, 27 L. Ed. 2d at 167. The dissenters again found the North Carolina statute held an unconstitutional threat, but made no further mention of plea bargaining.3
Upon the foregoing analysis of Brady, Parker and Alford, I was persuaded the majority refused to say Jackson applied to a statute such as ours and indeed affirmatively recognized the Constitution did not deny in a capital case the advantages of a reduced penalty on a plea. The dissenters, too, seemed to recognize the death penalty could be mitigated under a plea, advancing at most a formalistic criticism which, in my view, would not survive realistic reconsideration. If the death penalty and a plea bargain could coexist, I could see no substantial issue under our statute.
This was the setting when, on June 28, 1971, three years after we decided Funicello, the Federal Court handed down this memorandum, 403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859:
On petition for writ of certiorari to the Supreme Court of New Jersey. Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted. Judgment, insofar as it imposes *81the death sentence, reversed and case remanded to the Supreme Court of New Jersey for further proceedings. Witherspoon v. Illinois, 391 U. S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) ; Boulden v. Holman, 394 U. S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969) ; Maxwell v. Bishop, 398 U. S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970) ; and United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). Mr. Justice Black dissents.
This was indeed puzzling. The Jacicson issue was of course involved in Funicello; we had decided that issue to the end that the mist might be lifted by a prompt appeal. But Funicello did not involve the Witherspoon issue (52 N. J. at 292), and hence I could not understand the reference to Wither-spoon, Boulden and Maxwell, all of which dealt.with the qualification of jurors in a capital case. And even if Wither-spoon were involved, why talk about how a jury is selected in a capital case if because of Jacicson there is no death penalty? And of course I was surprised that the Court would dispose of so important an issue without argument, oral or written (we are told that no answer was filed to Eunicello’s petition for certiorari).
And puzzling, too, was the silence which followed the Funicello disposition. Here was a decision which, if our per curiam today is correct, not only empties the death house in our State but should do the same in every State if my further assumption is accurate that every State with capital punishment has some technique, formalized or not, whereby a defendant can avoid the risk of death by pleading guilty to some charge. Yet not a single news service detected the vast implications of that little note. Even victorious counsel, who usually greet success effusively, were strangely silent, as if they could not believe what they read.
We immediately informed the Attorney General of the State that we would want his views upon the Funicello memorandum in further proceedings on the remand. The Attorney General promptly moved before the Eederal Supreme Court for rehearing and for clarification. The applications were denied without comment. 404 U. S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971). Thereupon we ordered further *82argument before us. Extensive briefs were filed, and virtually a full day was devoted to the hearing, both as to what Funicello meant and what Funicello would permit.
I regret to say that the Federal Supreme Court’s handling of this important subject is not my idea of effective judicial administration. An appeal to the highest authority, Federal or State, should be more rewarding than a trip to Delphi. When Jaclcson was decided, the Court must have known of the possible implications of that case on capital punishment within the 50 States if the Fifth Amendment question was accepted. The States should have been invited to participate, not only to give them a hearing, but also so that the Court could profit from the practical experience of State authorities charged with enforcement of the criminal laws. And surely it is not too much to expect a sentence or two, articulating a constitutional finding in plain, unequivocal words.
At this further argument before us, the Attorney General and the prosecutors took the position that Funicello meant that Jaclcson applied to our statute and invalidated the death penalty. I think the Funicello memorandum must be so interpreted. But I will continue to marvel that the Fifth Amendment was found to harbor the grisly proposition that every defendant, must risk death, that his privilege against self-incrimination is a noose around his neck. This, to me, is the Constitution “standing on its head.”
But my concern at the moment is with judicial management. There has been a suspension of capital punishment in this country for a number of years —• since 1963 in our State. The reason is that the Federal Supreme Court has not reached for and resolved known issues as to the constitutionality of capital punishment. The failure to do so has effectively ended capital punishment with respect to every defendant sentenced to death before the Federal Supreme Court lays the issues to rest. There are now almost 700 men on death row in the nation. It is inconceivable that so many could be executed in one fell swoop. Executive clemency is inevitable. Meanwhile the drain upon the time and energy of *83the State judiciaries is tremendous. Whatever one’s view upon the merits of capital punishment, he cannot say this is an example of businesslike management.
The management problem is not all confined to capital punishment. The judicial process in the entire area of criminal law is a mess. A school boy, if he knew what we do, would stop and wonder. Changes must be made if the judiciaries, State and Federal, are to serve their common employer.
It would be well to reunite the power to lay down the rules with the responsibility for the end result. Perhaps the concept of two separate judicial systems is anachronistic. Perhaps the federal courts should try all State crimes; surely the State courts would still have more than enough to do. I appreciate that some of the new constitutional precepts reflect a purpose to protect minorities from discrimination. Ko one can quarrel with that objective; a constitution can have no role more vital. Perhaps it would have been better to have gone directly to that end by removing to the federal court for trial any case in which the possibility of such injustice might be feared.
In any event, there must be some effective channel of communication if we are to overcome the problem generated by the shift of constitutional authority to the Federal Supreme Court. The case-by-case method of making law is intolerably inefficient. We are not dealing with some sometime issue. The criminal law teems with activity which every day touches the safety of more than two hundred million people. The police, the prosecutors, and the judges must know promptly what may and may not be done. A system offers no prospect of management when after ten years with Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), the Federal Supreme Court had to acknowledge it had not achieved a serviceable set of guidelines. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). See State v. Bisaccia, 58 N. J. 586 (1971). I believe the case method should be replaced by a rule-making process in which *84the Federal Supreme Court can meet regularly with representatives of State Supreme Courts, to become aware of their problems, to benefit from their experience, and to adopt rules of prospective application. Without some such approach, neither the Federal Supreme Court nor the State Supreme Courts can be equal to their responsibilities.
There has been an upsurge in violent crime in the past decade. Everybody blames someone else. There is enough blame to go around, and I think the judiciaries cannot escape a considerable share.
Mr. Justice Proctor and Mr. Justice Schettino join in this concurring opinion. Subject to his dissenting opinion, Mr. Justice Francis also joins herein.
Jacobs and Hall, JJ., concur in result for reasons fully set forth by them in their dissent to State v. Forcella et als., 52 N. J. 263, 294-302 (1968).
lf the Court had in mind that a judge might refuse to hear a case without a jury, the trouble would reside in the judge’s refusal rather than the statute. It could not be said it is the statute which “encourages” the guilty plea.
The italicized words could be eliminated from N. J. S. A. 2A :113-3:
In no case shall the plea of guilty be received upon any indictment for murder, and if, upon arraignment, such plea is offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the case.
Nothing herein contained shall prevent the accused from pleading non vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree.
We add that in Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), the Court unanimously agreed that plea bargaining was virtuous. The death penalty was not involved, but none of the opinions suggested it would call for a different answer.