(dissenting). I adhere to the opinion of this Court in State v. Forcella, 52 N. J. 263 (1968).
In Forcella, the majority of this Court in a comprehensive opinion declared that the view expressed by the United States Supreme Court in United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) did not render the death penalty provision of the Hew Jersey homicide statute unconstitutional. I believe our decision was sound and I see nothing either in the later summary and unexplained reversal of Forcella by that Court, 403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971), or the subsequent rejection of the Attorney GeneraPs plea for clarification, 404 U. S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971), which persuasively leads to a contrary result. In a case which had nationwide implications concerning the conviction and death sentence of almost 700 persons on death row throughout the country, one would expect a more definitive exposition from the tribunal which is invested with the final word on constitutional problems.
*85No one suggests that if our homicide act simply provided that any person indicted for murder shall have his guilt determined by a jury, which on finding guilt, shall fix the penalty at death or may in its discretion recommend life imprisonment, the Federal or State Constitution would be violated. Absence of any authorization for offer or acceptance of a guilty or non vult plea would not affect the Act’s validity. Jackson plainly indicates that a homicide statute which left the choice of death or life imprisonment in every case to the jury, regardless of how guilt was determined, would present no constitutional problem. United States v. Jackson, supra, 390 U. S. at 582, 88 S. Ct. at 1216, 20 L. Ed. 2d at 147. Likewise in North Carolina v. Alford, 400 U. S. 25, 39, 91 S. Ct. 160, 168, 27 L. Ed. 2d 162, 172 (1970), Mr. Justice White, speaking for the majority of the Court, in discussing the validity of a state law which required every person accused of murder to go to trial, said:
The States in their wisdom may take this course by statute or otherwise and may prohibit- the practice of accepting pleas to lesser included offenses under any circumstances. But this is not the mandate of the Fourteenth Amendment and the Bill of Bights.
But, indicated the Court in Jackson, if the Legislature for the purpose of ameliorating the harshness of a rule requiring every person indicted for murder to stand trial and face a possible death verdict, adds to the homicide act a provision under which such an accused may, if he wishes, voluntarily and intelligently and with a realization of the case against him-offer to admit his guilt and to accept a term of imprisonment, subject to acceptance or rejection of the plea by the trial court, such amendment changes the death penalty provision into an unconstitutional scheme. Never has such a humane legislative endeavor encountered such a cataclysmic rebuff or been converted to the accomplishment of a purpose wholly at odds with the legislative intention. In my judgment the view taken by the majority of our Court *86in Forcella as to the propriety and effect of the authorization of the non vult plea is compatible with the Federal and State Constitutions.
I realize that in our country’s judicial hierarchy, the United States Supreme Court is the final arbiter of controversies involving interpretation .and application of the Federal Constitution. Thus if the Funicello reversal signifies what the majority of this Court with obvious reluctance accepts it to mean, the ruling cannot be disregarded. But even if not privileged to disregard an interpretation of the Constitution by the United States Supreme Court, I am privileged to disagree, and to express that disagreement. I agree with the dissenting Justices in United States v. Jackson, supra, 390 U. S. at 591, 88 S. Ct. at 1221, 20 L. Ed. 2d at 152, White and Black, JJ., dissenting, and I also believe firmly that the opinion of this Court in Forcella represents a sound appraisal of the constitutionality of our homicide statute.
I
For me further analysis of the procedure which brought the Jackson problem to court intensifies the difficulty of understanding the significance of the final decision. Jackson was charged in one count of an indictment under the Federal Kidnaping Act, 18 U. S. C. A. § 1201(a), with kidnaping and not releasing the victim unharmed, an offense punishable by death, if the jury so recommended. Before, any plea was entered thereto, Jackson moved to dismiss the count on the ground that the portion of the statute on which it was predicated was unconstitutional. Since defendant had not yet entered any plea to the charge—not guilty, guilty, non vult or nolo contendere—obviously the only issue presented was whether the portion of the statute concerning jury trial was unconstitutional on its face. At one point in the opinion the majority seems to so hold:
*87Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert their right to contest their guilt before a jury. The inevitable effect of any such provision, is of course, 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. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional. 390 U. S. at 581, 88 S. Ct. at 1216, 20 L. Ed. 2d at 147. (Emphasis added.)
Additional comment gave the same impression when it indicated that the “chilling effect” of the death penalty provision on the exercise of a defendant’s Eifth and Sixth Amendments rights was “unnecessary and therefore excessive” Id. at 582, 88 S. Ct. at 1216, 20 L. Ed. 2d at 147. Thereafter, the opinion said that:
It is no answer to urge, as does the Government, that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus the fact that the Federal Kidnaping 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. The power to reject coerced guilty pleas and involuntary jury waivers might alleviate, but it cannot totally eliminate, the constitutional infirmity in the capital punishment provision of the Federal Kidnaping Act. 390 U. S. at 583, 88 S. Ct. at 1217, 20 L. Ed. 2d at 148.
The purport of this language is that in the hypothetical situation envisioned, a plea of guilty to a charge involving the death penalty under the Act would be valid constitutionally, if made voluntarily. Accepting that view, the Act could not be unconstitutional on its face, but only in its application in a given case. Consequently, it would seem that as a matter of sound and practical administration of the criminal law, the case before the Court should have been remanded to the trial court for the making of an *88adequate record, i. e., one that would permit a decision as to whether the Act was being applied against Jackson constitutionally. Eor example, if Jackson had been called upon to plead to the indictment, plea negotiations (which certainly have the blessing of the United States Supreme Court as “an essential component of the administration of justice,” Santobello v. New York, 404 U. S. 257, at 260, 92 S. Ct. 495, at 498, 30 L. Ed. 2d 427 (1971) )1 might have resulted in a voluntary offer by him and acceptance by the trial court of a guilty or nolo contendere plea. In that event there would have been no problem about the basic validity of the statute. It is plain to me that such is the view of the dissenting Justices in Jackson, supra. On the other hand, if Jackson chose “to contest his guilt” and was “ingenuous enough to seek a jury acquittal * * *” (390 U. S. at 573, 581, 88 S. Ct. at 1211, 1216, 20 L. Ed. 2d at 142, 148), the constitutional question arising from the unique statutory scheme (i. e., waiver of jury trial and trial of the guilt issue before a judge in which event a death penalty was impermissible, or demand for jury trial of the guilt issue, in which event a jury finding of guilt could result in a death sentence, if the jury so recommended), clearly would be open for consideration by the court.
Since Jackson neither pleaded innocent and sought a jury trial, nor offered to waive a jury and to be tried before a judge, (an offer which the trial court in its discretion could reject (Singer v. United States, 380 U. S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630; United States v. Jackson, supra, 390 U. S. at 584, 88 S. Ct. at 1217, 20 L. Ed. 2d at 148)) nor pleaded guilty, in whole or in part to avoid a possible death sentence, the majority opinion, in my judgment, possesses an internal inconsistency and ambiguity which could not help but puzzle State courts, and which probably would have been avoided by a proper record. The result gives force to the view of the *89dissenting Justices that the majority should heed the traditional policy of declining to reach out for a constitutional question if the statute involved is reasonably susceptible of an interpretation which will avoid such question. They said, and I think rightly so, that they “would not take the first step toward invalidation of statutes on their face because they arguably burden the right to jury trial.” United States v. Jackson, supra, 390 U. S. at 592, 88 S. Ct. at 1222, 20 L. Ed. 2d at 153. (Emphasis added.)
In Forcella Chief Justice Weintraub referred to a basic infirmity in the Federal Kidnaping Act which is not present in the New Jersey homicide statute. In the former, if a defendant who maintained his innocence offered to waive jury trial and to be tried by a judge, and an agreement was reached to that end, upon conviction by the judge, the death penalty could not be imposed. But if the offer to waive the jury was denied by the court and the issue of innocence thereupon necessarily tried by a jury, defendant was subject to the death penalty if the jury convicted him. It certainly is reasonable to hold that such a statutory framework unconstitutionally burdens the Sixth Amendment right of an accused to have his innocence decided by a jury. If, as the dissenters intimated, a proper record had been made in the trial court and presented to the Supreme Court, little criticism could be voiced against the Jackson advisory opinion. And, of additional significance, as far as the New Jersey Act is concerned, in no case can a defendant who asserts his innocence to a murder charge, obtain a trial by a court without a jury.
The later cases vindicated the judgment of the dissenters. In Brady v. United States, 397 U. S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747, and Parker v. North Carolina, 397 U. S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785, both decided on May 4, 1970 and North Carolina v. Alford, supra, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, decided November 23, 1970, a new majority, consisting in part of the Jackson dissenters, recognized that both the Federal Kidnaping Act and the *90North. Carolina homicide statute (which permitted a death sentence only if a jury after trial did not recommend life imprisonment), were not unconstitutional on their face. In spite of the statement of the majority of the Court in Jackson that the “inevitable effect” of such statute was to “needlessly encourage” guilty pleas in order to avoid the risk of the death penalty, it was held that a plea of guilty, even if made in material part to avoid exposure to the death penalty at a trial, was not constitutionally infirm, so long as it was voluntarily and intelligently made, upon advice of competent counsel, and with an understanding of the strength of the Government’s case against him. Moreover, in Alford the majority said that even if in offering the plea of guilty, the defendant maintained his innocence, the plea would be valid providing the trial court, after hearing the nature of the prosecution’s case and the statement of defense counsel and the defendant, was satisfied that the plea was voluntarily and understanding^ made.
It is apparent that in all three of the cited cases, Brady, Parker and Alford, following return of the murder indictments pro forma and perfunctory pleas of not guilty had been entered. Obviously, plea bargaining followed which resulted in an agreement between the parties that the State or Government would waive its right to seek the death penalty, and that in return the defendant, in full appreciation of the case against him and the possibility or probability of a death sentence at a trial, would plead guilty or non vult, and accept a sentence of imprisonment in place of the possibility of a death verdict on a jury trial. As Mr. Justice White said for the Court in Brady:
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. 397 U. S. at 753, 90 S. Ct. at 1471, 25 L. Ed. 2d at 759.
*91The Jaclcson opinion found the Federal Kidnaping Act deficient because it subjected to the risk of death any defendant who asserted his innocence and in order to pursue an acquittal demanded a jury trial. The Kew Jersey statute says that for murder in the first degree the punishment shall be death unless the jury .upon and after a consideration of all the evidence recommends life imprisonment. N. J. S. A. 2A:113-4. It provides also that in “no case” of an indictment for such a murder shall a plea of guilty be received upon arraignment, and if offered “it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the ease.” N. J. S. A. 2A:113-3. It is further provided that a plea of non vult may be offered and accepted in the discretion of the court, and if accepted the sentence shall be either imprisonment for life or the same as that imposed for second degree murder.2 Id. Thus, in Kew Jersey a defendant cannot waive a jury trial in a murder case and agree to be tried by a judge alone.
When an accused under a murder indictment is arraigned, a plea of not guilty is entered automatically, and without regard to whether he claims to be innocent. Under the statute there is no alternative. It is conceivable, although it would be a rarity because of the short time usually intervening between return of the indictment and arraignment, that the prosecutor and defense counsel, through negotiation, might arrive at an agreement under which on the day of arraignment, the prosecutor would waive trial and a demand for the death penalty, and the defendant would offer a plea of non vult to the court. That unlikely event aside, after the usual arraignment, the prosecutor and defense counsel would engage in plea bargaining (except possibly in the situation discussed hereafter). If agreement for a non-vult plea by de*92fendant were reached, it would be recommended to the court, which would accept it only after a thorough inquiry as to whether it was uneoerced and voluntarily made, and that the public interest would be served by its acceptance. See State v. Sullivan, 43 N. J. 209 (1964), cert. den. 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).
What the United States Supreme Court overlooked in the summary reversal of Funicello, supra, 403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971), as will appear more fully hereafter, is that the Legislature added the opportunity to plead non vult to our Act as a humanitarian gesture, and to make plain that plea bargaining was permissible and approved for those defendants who wished to acknowledge their wrongdoing and seek an opportunity to expiate it by rehabilitative confinement. If the amendment had not been made, can there be any doubt that plea bargaining would have been a proper practice, as it had been for many years in our State, and quite obviously, as it had been on the Eederal scene and that of our sister States? Compare Brady v. United States, Parker v. North Carolina, North Carolina v. Alford, all supra, and see The Challenge of Crime in a Free Society, Report of the President’s Commission on Law Enforcement and Administration of Justice 135 (1967); State v. Taylor, supra, fn. 1. To my mind, the transmutation of the Legislature’s public spirited intention and effort to ease the way for plea negotiation into an allegedly unconstitutional device to burden the right to jury trial and thus to render the death penalty provision invalid is, at best, an unjustified enlargement of the Constitution. As a result, to paraphrase Mr. Justice White’s dissent in Harrison v. United States, 392 U. S. 219, 235, 88 S. .Ct 2008, 2017, 20 L. Ed. 2d 1047, 1059 (1968), “[cjriminal trials will simply become less effective in protecting society against those who have made it impossible to live today in safety.”
Ordinarily after entry of the perfunctory not guilty plea to the murder indictment, the prosecutor decides whether the homicide is such a horrendous one and the defendant’s guilt *93so plain that in the public interest he should not engage in plea bargaining, but should go to jury trial (as the statute says) and seek the death penalty as punishment for the defendant and as a deterrent to others. If that decision is reached defense counsel is so advised and, with rare exceptions, the possibility of plea bargaining ends. Of course, the defendant may, over the prosecutor’s objection, offer a nonvult plea to the trial court, and the court may accept or reject it.
In two of the cases involved here, State v. Belton, 48 N. J. 432 (1967), and State v. Conklin, 54 N. J. 540 (1969), 'both of which resulted in death verdicts, the opinions of this Court reveal that over the prosecutor’s objection the defendants made formal offers to plead non vult. In each instance the offer was refused by the trial court because it believed that in view of the nature of the crime, the public interest would be better served by rejection of the plea and sending the case to the jury. At Belton’s trial, as this Court’s opinion notes, State v. Belton and Neil, 60 N. J. 103 (1972), he acknowledged the robbery and the killing and aimed his defense at obtaining a life recommendation from the jury. There never was a claim of innocence, and the testimony as to his guilt was “overwhelming.” And in Conklin this Court in sustaining the trial court’s rejection of the nonvull plea offer said “there was not only armed robbery with killings in the course thereof, but [as the State’s brief stresses,] evidence of ‘cold-blooded’ murder by the defendant and conduct on his part which was ‘savage beyond description.’ ” State v. Conklin, 54 N. J. at 547.3
*94In the other cases now under consideration, trial of the indictment resulted also because the prosecutor demanded the death penalty, as he was entitled to do, and thus the statutory mandate for a jury to decide that issue had to be followed.
Jury trial of the death penalty cases here did not arise because the defendants were “ingenuous” enough to demand such a trial. It arose because the statute prescribed that type of trial, and because the prosecutor sought the death penalty, the determination of which did not admit of any departure from a jury trial.
We know that in practice in our State, a prosecutor does not seek the death penalty unless he believes the killing is so horrendous and the defendant's guilt so plain that his duty to the public demands it, either as punishment or as a deterrent measure or both. Otherwise, the death penalty is waived as the prosecutor is authorized to do. It is a matter of common knowledge that such waiver is the rule, and that the State's demand for jury determination as to whether a death sentence is warranted occurs in a small percentage of murder cases. The jury returns a death sentence in about a third of these cases.
In the death sentence cases now before us, the prosecutor sought the death penalty, following the indictments and the automatic not guilty pleas. This meant under the statutory mandate that a jury had to be impaneled and the cases tried. N. J. S. A. 2A:113-3.4 In each case 12 conscientious citizens of the counties involved found not only that the mur*95der was so revolting, and the defendant’s gnilt so overwhelming bnt also such absence of mitigating circumstances, that the discharge of their obligation to society required them to impose the death penalty. Now, as the result of United States v. Jackson, supra, the majority of our Court feel required to vacate the death sentences which the various juries deemed necessary for the protection of society and the just administration of the criminal law. It follows also, as the Chief Justice’s concurring opinion in this case suggests, that all of the 20 persons who have accumulated on “death row” over the last eight years, because of delays caused by appellate and post-conviction review of the juries’ death sentences, must now be freed from those sentences. If the death penalty is capable of producing any deterrent effect in our present day society, and the Legislature must have thought so or it would not have been retained in our statute, the kind of administration of the criminal law described in the Chief Justice’s concurring opinion must dissipate any such effect.5
The question whether the death penalty is a deterrent is not the concern of the judicial department of the government — unless perhaps, a court is ready to decide that such penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment of the Eederal Constitution. The death penalty is a matter of legislative policy, and under our tripartite form of government the decision as to its existence is committed to the Legislature. No matter how I feel about its wisdom, I believe my duty as a judge is to serve the legislative policy which has sanctioned it unless it trans*96gresses the State and Federal Constitutions. Since I continue to hold to the view of the majority of our Court in State v. Forcella that our statute is constitutional, I cannot accept the contrary holding in this case.
II
Since the per curiam, majority opinion herein must be accepted as the law of this State, a decision is necessary as to its present and future impact on our homicide statute. Obviously the opinion means that all persons whose guilt of murder in the first degree has been established and who have been sentenced to death as the result of the refusal of the jury to recommend life imprisonment, must be relieved of that penalty and resentenced to life imprisonment. It follows also that no person who committed a homicide prior to the filing of our judgment in the cases now before us can be exposed to the death penalty at a trial.
But what should be the effect of the decision upon the homicide act for the future? The opinion says all future indictments for murder “shall be prosecuted on the basis that upon a jury’s verdict of murder in the first degree, the penalty shall be life imprisonment.” To the extent that future indictments emanate from murders committed prior to the judgment in this case, I agree that the punishment must be limited to life imprisonment. However, I dissent from the view that life imprisonment is the only available penalty under the statute for homicides committed thereafter.
We said in Forcella that if the effect of the legislative addition of an authorization to the trial court to accept or reject a non-vult plea to the murder indictment was to make the long standing death penalty provision violative of the Federal Constitution, then the authorization to offer and receive such a plea should be severed from the rest of the statute. State v. Forcella, 53 N. J. at 281-284. This was consistent with our unanimous earlier view in State v. Sullivan, supra, 43 N. J. at 243-247, which discussed at length *97the legislative history of our statute, and in State v. Reynolds, 43 N. J. 597, 603 (1965).
When the United States Supreme Court in Jackson de: Glared invalid the death penalty amendment to the Federal Kidnaping Act, it was faced with the need for. a, decision as to the effect thereof on the remainder of the Act. In resolving the, question, reference was made to the established rule that the unconstitutionality of part of a statute does not necessarily mean that its. remaining provisions must fall. If the remainder may stand and operate independently without conflict with the over-all basic purpose of the Legislature, it will be allowed to do so. “Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a .law.” United States v. Jackson, supra, 390 U. S. at 585, 88. S. Ct. at 1218, 20 L. Ed. 2d at 149. ; .
The. Federal Supreme Court pointed out that the Federal Kidnaping Act had been in existence since 1932. Originally the penalty for violation was imprisonment .for a term of years. It was then a wholly viable, fully integrated piece- of legislation. When the death penalty was added, in 1934, the statute was left substantially unchanged in eveyy other respect. On the basis of the Congressional history, the opinion said that clearly Congress “would have made interstate kidnaping a federal crime even if the death penalty provision had been ruled out from the beginning. It would be difficult to imagine a more compelling case for severability.” Id. at 589, 88 S. Ct. at 1220, 20 L. Ed. 2d at 151. Consequently only the death penalty was excised, and the remainder of the Act was continued in force.
Every factor which impelled the survival of all of the Federal Act except the death penalty provision, applies with equal force to the Kew Jersey homicide statute but calls for excision of the non-vult plea amendment. Prior to that amendment, the Act which included the death penalty was a fully operative, constitutionally viable enactment. See *98State v. Forcella, supra, 52 N. J. at 277-279; State v. Sullivan, supra, 43 N. J. 209, 242-247. However, its operation was harsh and most defendants indicted for murder were in serious danger of the death penalty. But no one claims that in its then existing form it transgressed the Constitution in the Jackson sense. In fact, as indicated above, the United States Supreme Court declared in Alford that a State may ban all pleas and require every defendant in a murder indictment to go to jury trial, with the jury deciding whether the crime warranted the death penalty or life imprisonment. In amending our statute, the non-vult plea was intended to benefit all murder defendants by permitting the court, where the facts so warranted, to accept a plea which would bar the death penalty. State v. Forcella, 52 N. J. at 278. If the incorporation of that beneficent purpose imposed an unintended unconstitutional cast on the pre-existing death penalty provision, in view of the fact that the legislative history shows beyond reasonable question that there was no intention to imperil the death penalty, the remedy must be excision of the amendment which caused the difficulty.
In order that our considered holding in Forcella be brought into proper perspective here it seems worthwhile to repeat what was said:
* * * We heretofore said that if the non vult plea involved a constitutional infirmity, the provision for the non vult plea would fall and a defendant who stood trial could claim no benefit from that infirmity. * * *
This must be so because we could not find the Legislature was so determined to have the non vult plea that it would prefer to scuttle capital punishment. * * *
Finding no conceivable basis for saying the legislators who voted for the 1893 act intended to abolish capital punishment if necessary to permit a non-vult plea, we must hold it would be the non-vult plea which died aborning, because of the constitutional impediment to its being.
In any event, it is crystal clear the Legislature could not have intended that a constitutional difficulty in the 1917 statute [which authorized a sentence of life imprisonment on .a non vult plea] should be resolved by eliminating the death penalty. O.n the contrary *99the Legislature had just rejected an attempt to abolish capital punishment, and had decided to go no further than to empower the jury to recommend life imprisonment.
The history of capital punishment in this State is well documented. In that light, we could hardly accept the extraordinary proposition that the 1893 act or the 1917 act, or any general revision of the laws, spelled out an intent that the death penalty should fall if the introduction of the non vult plea created a constitutional impasse. Capital punishment lies within the authority and the responsibility of the Legislature, and the Legislature has expressly and continuously dealt with the subject. There have been numerous efforts to abolish it. As recently as 1964 a study commission created by joint resolution of the Legislature recommended that the death penalty be retained. Report of New Jersey Commission to Study Capital Punishment. (Oct. 1964). It is not our responsibility, or authority, whatever our individual views on capital punishment, to impute to the Legislature a repeal it has consistently refused to enact during more than a century of agitation upon this subject.
It follows, then, that if Jackson is held to apply, the non vult plea will go. * * * 52 N. J. at 281-283.
I see no reason whatever for departing from the views sa expressed.
With the non-vuM plea out of the homicide act, here is the way the remaining pertinent sections will appear:
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.
N. J. S. A. 2A: 113-4.
Every person convicted of murder in the first degree, his aiders,, abettors, counselors and procurers, shall suffer death unless the jury-shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed.
Every person convicted of murder in the second degree shall suffer imprisonment for not more than 30 years.
Obviously, they are fully operative as a law without the non-vult plea provision, and may stand independently, as they stood for many years before the inclusion of that provision.
*100The result of excision of the non-vult provision is to re: quire every first degree murder defendant to be put to trial before a jury, -which will be called upon to decide guilt and death or life imprisonment. I agree that is a harsh result, but it follows inevitably from the United States Supreme Court fiat in JacTesorv.» However, the continued existence of the Act in that |oprv 'is a matter of policy for legislative and not for judicial; decision. The lawmakers have the undoubted authority 'to leave it in that posture, if they feel that the public interest is served thereby.6 We have noted in the past that a prosecutor may indict specifically for second degree murder in a proper case, thus eliminating the death penalty. State v. Sullivan, supra, 43 N. J. at 246. The majority of this Court has also said that he may waive the death penalty following- return of the usual form of murder indictment, if in his discretion the offense and the public interest do not require such consequences.
It is reasonable .to suppose that the Legislature in the discharge of its governmental function will take a conscientious look at the problem. A number of courses are open to. .it:
1. The death penalty.may be abolished, entirely;
2. The non-vult plea may be added again to the statute with the proviso that in first degree murder. cases, unless the prosecutor waives, the death penalty, the plea if offered shall be accepted and a jury impaneled to decide the punishment, i. e.j death or life imprisonment;
3. The choice between life imprisonment and capital punr ishment maybe left' to the jury in emery case—regardless of *101how the defendant’s guilt is determined. See, United States v. Jackson, supra, 390 U. S. at 582, 88 S. Ct. at 1216, 20 L. Ed. 2d at 147.
4. On a plea of guilty or non vult or a finding of guilt of first degree murder by a jury, the trial judge, as is the usual ease in criminal matters, shall impose the sentence up to the maximum authorized by the statute.
5. The Court in Jaclcson referred to the “availability” of other unspecified alternatives. Presumably the Legislature would search them out.
It is important, I think, for the judiciary to refrain from interfering in important policy matters, such as continued existence of the death penalty. The Forcella decision was on solid ground in holding that if Jaclcson applied to our statutes only the non-vult plea should fall. Such a holding is simply an interpretation of State law and does not in any way involve a question of Eederal Constitutional law. On matters of interpretation of State law the Eederal courts have -always regarded State courts’ interpretations as paramount. This being so, it is difficult to understand how the majority of our Court now abandons the view adopted in Forcella that the Jaclcson decision required'excision of the non-vult plea and not elimination of the death penalty from our statute. Nothing has happened since which justifies us in declaring that after the present death sentences have been reduced to life imprisonment, and the death penalty is barred as punishment for any homicide committed prior to the filing date of our judgment in this ease, the homicide act with the non-vult provision excluded cannot be continued in operation—at least until the Legislature decides upon the course it wishes followed.
0ur courts have long held the view that there is nothing- unholy about honest plea bargaining in criminal cases even where the death penalty is involved. State v. Taylor, 49 N. J. 440, 455 (1967).
In this connection, the extensive area for plea bargaining under the statute should be realized. Sentence for second degree murder can range from a very short term, to imprisonment up to 30 years, or even to probation. N. J. S. A. 2A :113-4, see e. g. State v. Bess, 53 N. J. 10, 18-19 (1968).
The same situation may be found in tbe record in every case referred to here. For example, in State v. Artis, 57 N. J. 24, 26 (1970), this Court described the killing as “this particularly gruesome homicide”; State v. Funicello, 49 N. J. 553 (1967) arose out of a brutal multiple stabbing in the perpetration of a robbery; a confession was made and received in evidence; the record “overwhelmingly” supported the guilty verdict; State v. Trantino, 44 N. J. 358 (1965), was a cold-blooded and sadistic murder of police officers and the proof of guilt was overwhelming; State v. Forcella, 35 N. J. 168 (1962) in *94wkick the proof of guilt was abundant, and it appeared that defendant had committed a previous murder for which after serving a term in iwison he had been released on parole.
Experience has taught that in such cases although the State is required formally to prove guilt with all the solemnity that ordinarily attends an actual contest on the subject, the defendant usually sits in court awaiting the opportunity to admit the killing and to present any circumstances which he hopes may induce the jury to recommend life imprisonment instead of death. Cf. State v. White, 27 N. J. 158, 186 (1958), (concurring opinion).
Ourrent reports do indicate a progressive rise in the crime rate. For example, the FBI’s Uniform Crime statistics show that for the first nine months of 1971 violent crimes rose 21% in the heavily populated Northeast, and 14% in the West. Nationwide, murder was up 10%, robbery up 12%, aggravated assault up 8%, and forcible rape up 7%. In New York City in the year 1971 there were 1625 homicides — more than ever before; 172 persons were slain in December, a record for a single month. New York Times, Jan. 1, 1972, p. 1, col. 6.
" 6 After Jaclcson, the North Carolina Legislature repealed the guilty plea authorization in its statute (which was nruch like our non-vult plea provision) and it is no longer possible to' plead guilty to a capital charge. The United States Supreme Court dictum in North Carolina v. Alford, supra, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, found ¡ no constitutional infirmity in the . change. It did note however that “it seemingly 'remains possible for a person charged with a capital offense to plead guilty to a lesser charge.’* 400 U. S. at 27 n. 1, 39 n. 12, 91 S. Ct. at 162, 27 L. Ed. 2d. at 165 n. 1, 172 n. 12.