The relevant statutes are N. J. Stat. Ann. §§2A:113-1 to 2A:113-4 (West 1969 and Supp. 1978-1979):

“2A: 113-1. Murder

“If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, constable or other officer of justice, either civil or criminal, of this State, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder.

“2A: 113-2. Degrees of murder; designation in verdict

“Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, or which is perpetrated in the course or for the purpose of resisting, avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, or murder of a police or other law enforcement officer acting in the execution of his duty or of a person assisting any such officer so acting, is murder in the first degree. Any other kind of murder is murder in the secon,d degree. A jury finding a person guilty of murder shall designate by their verdict whether it be murder in the first degree or in the second degree.”

“2A: 113-3. Murder; plea of guilty not to be received; plea of non vult or nolo contendere and sentence thereon

“In no case shall the plea of guilty be received upon any indictment for *215murder, 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.

“2A: 113-4. Murder; punishment

“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.”

Manslaughter is separately defined in §2A: 113-5 (West 1969).

The provision for the death penalty in §2A: 113-4 was invalidated in Funicello v. New Jersey, 403 U. S. 948 (1971). On remand, the New Jersey Supreme Court held the death penalty provision severable from the statute and ruled that life imprisonment was to be imposed upon all defendants convicted by a jury of first-degree murder, State v. Funicello, 60 N. J. 60, 286 A. 2d 55, cert. denied sub nom. New Jersey v. Presha, 408 U. S. 942 (1972).

N. J. Stat. Ann. § 2A: 113-3 (West 1969). As the statute suggests, the trial judge has complete discretion to refuse to accept the plea. See State v. Sullivan, 43 N. J. 209, 246, 203 A. 2d 117, 196 (1964). He may not, however, accept a plea if the defendant maintains his innocence, *216stands mute, or refuses to admit facts that establish guilt. State v. Reali, 26 N. J. 222, 139 A. 2d 300 (1958); State v. Sands, 138 N. J. Super. 103, 109-112, 350 A. 2d 274, 277-279 (App. Div. 1975); State v. Rhein, 117 N. J. Super. 112, 283 A. 2d 759 (App. Div. 1971).

Corbitt was indicted on two counts of arson and one count of murder. The State presented its case on a felony-murder basis. He was found guilty on one count of arson and on the murder count. Sentences of life imprisonment for felony murder and a concurrent term for arson were imposed. Because the arson conviction was deemed merged into the murder conviction, the separate sentence for arson was set aside on appeal.

New Jersey Stat. Ann. § 2A: 113-2 (West 1969) directs a jury finding a defendant guilty of murder to “designate by their verdict whether it be murder in the first degree or in the second degree.” It thus appears that in appropriate cases the jury would be instructed on both first- and second-degree murder. In this ease, however, the State proceeded on a felony-murder basis; the judge considered it to be a first-degree felony-murder case; and there were no instructions on second-degree murder or manslaughter. As far as the record before us reveals, Corbitt did not request or object to the absence of instructions on lesser crimes.

Under New Jersey law, the plea is to be directed to the indictment, which may charge murder generally. The trial court accepting a plea does not hold a hearing for the purpose of determining the degree of guilt or make any such determination. State v. Williams, 39 N. J. 471, 479, 189 A. 2d 193, 197 (1963); State v. Walker, 33 N. J. 580, 588-589, 166 A. 2d 567, 571-572 (1960).

If the plea is accepted, the sentencing judge would appear to have discretion not only to impose up to 30 years on facts that might have warranted a first-degree murder verdict by a jury but also to impose a life term where the facts indicate a second-degree murder verdict.

For example, in Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183 (1971), we upheld Ohio’s procedure whereby the jury determines both guilt and punishment in a single trial and in a single verdict. Crampton argued that the unitary procedure impaired his Fifth and Fourteenth Amendment right against compelled self-incrimination because he could remain silent on the issue of guilt only at the cost of *219surrendering any chance to plead his case on the issue of punishment. As we stated there, in rejecting his argument:

“The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments’ as to which course to follow. McMann v. Richardson, 397 U. S., at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Id., at 213.

See also Brady v. United States, 397 U. S. 742, 750 (1970).

In United States v. Nobles, 422 U. S. 225 (1975), we held that a District Court could condition the admissibility of impeachment testimony by a defense witness upon production of an investigative report prepared by the witness, rejecting Nobles’ contention that to do so would violate his Sixth Amendment right to compulsory process and cross-examination.

The Court intimated as much in Jackson itself: “[T]he 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. Decisions after Jackson sustained practices that, although encouraging guilty pleas, were not “needless.” In the first of these cases, Brady v. United States, supra, the petitioner had pleaded guilty and was sentenced to 50 years’ imprisonment after being indicted under the same statute, the Federal Kidnaping Act, at issue in Jackson. Brady claimed that his guilty plea had been involuntary, relying on our holding in Jackson that the death penalty provision of the Federal Kidnaping Act served to encourage guilty pleas needlessly. In effect, Brady argued that Jackson required the invalidation of every guilty plea entered under the Federal Kidnaping Act prior to Jackson. We concluded that he had “read 'far too much into the Jackson opinion.” 397 U. S., at 746. Jackson had in no way altered the test of Boykin v. Alabama, 395 U. S. 238, 242 (1969), that guilty pleas are valid if knowing, voluntary, and intelligent.

Subsequent decisions reaffirmed the permissibility of plea bargaining even though “every such circumstance has a discouraging effect on the defendant’s assertion of his trial rights,” because the “imposition of these difficult choices [is the] inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, 412 U. S. 17, 31 (1973). See McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970); North *220Carolina v. Alford, 400 U. S. 25 (1970); Santobello v. New York, 404 U. S. 257 (1971); Bordenkircher v. Hayes, 434 U. S. 357 (1978).

In Ludwig v. Massachusetts, 427 U. S. 618 (1976), the appellant challenged the Massachusetts system for disposition of certain state crimes in which the defendant is first tried without a jury. If convicted, he may appeal and obtain a jury trial de novo. Although the range of penalties was the same at each tier, Ludwig suffered a harsher sentence when he appealed and was found guilty by a jury. Recognizing the interest of the State in efficient criminal procedure, we rejected a claim based on Jackson that the system discouraged the assertion of the right to a jury trial by imposing harsher sentences upon those that exercised that right. 427 ü. S., at 627-628, n. 4.

In Bordenkircher, the original indictment did not include the habitual criminal count, which was added when the defendant was reindicted following his refusal to plead. This escalation of the charges after the failure of plea bargaining, which to the dissenters in this Court demonstrated impermissible vindictiveness, is not present here; and we need not rely on this aspect of the Bordenkircher decision. The rationale of that case would a fortiori govern a case where the original indictment contains a habitual criminal count and conviction on that count follows the defendant’s decision not to plead to a lesser charge.

New Jersey expressly authorizes plea bargaining. N. J. Court Rule 3:9-3 (a). Any agreement reached is “placed on the record in open court at the time the plea is entered.” Rule 3:9-3 (b). The New Jersey Rules also permit disclosure of the tentative agreement to the judge to secure advance approval. Rule 3:9-3 (c). In any event, if the judge “determines that the interest of justice would not be served by effectuating the agreement,” he must permit the defendant to withdraw the plea. Rule 3:9-3 (e).

The Court has several times recognized the benefits of plea bargaining to the defendant as well as to the State. In Blackledge v. Allison, 431 U. S. 63, 71 (1977), we said:

“Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.” (Footnote omitted.)

See also Santobello v. New York, supra, at 260-261; Brady v. United States, 397 U. S., at 751-752. There is thus much more to be derived from plea bargaining than simply conserving scarce prosecutorial resources, and those benefits accrue equally where the plea bargaining occurs within a statutory framework.

The dissent’s suggestion, post, at 229-230, that New Jersey concedes that its statutes have both the purpose and effect of penalizing the assertion of the right not to plead guilty is untenable, see Brief for Appellee 28-31, and seems inconsistent with the later description of the State’s position, post, at 230.

The dissent appears to question any system that subjects the defendant who stands trial to a substantial risk of greater punishment than the defendant who pleads guilty. But in the next breath, the dissent appears to embrace plea bargaining, although the plea-bargaining systems operating in a majority of the jurisdictions throughout the country inherently extend to defendants who plead guilty the probability or the certainty of leniency that will not be available if they go to trial.

The dissent asserts that the attack here is on the statutory scheme rather than upon the system of plea bargaining, which is said to individualize defendants and does not mandate a different standard of punishment depending solely on whether or not a plea is entered. The distinction is without substance for the purposes of this case. In the first place, plea bargaining by state prosecutors operates by virtue of state law, here by virtue, of the formal rules of the Supreme Court of New Jersey. That system permits a proper amount of leniency in return for pleas, leniency that is denied if one goes to trial. In this sense, the standard of punishment is necessarily different for those who plead and for those who go to trial. For those who plead, that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury. Second, under the New Jersey statutes, pleas may be rejected even if tendered; there must, for example, be a factual basis for the plea. Even if a plea is accepted, there is discretion to impose life imprisonment. The statute leaves much to the judge and to the prosecutor and does not mandate lesser punishment for those pleading non vult than is imposed on those who go to trial. It is also true that under normal circumstances, juries in New Jersey may find a defendant guilty of second-degree murder rather than first.

Third, we cannot hold that a prosecutor may charge a person with a crime carrying a mandatory punishment and secure a valid conviction, despite his power to offer leniency to those who plead — including dismissal of the mandatory count in return for a plea — and yet hold that the legislature may not openly provide for the possibility of leniency in return for a plea. This is particularly true where it is contemplated that plea bargaining will in any event go forward within the limits set by the legislature.

We do not suggest that every conceivable statutory sentencing structure, plea-bargaining system, or particular plea bargain would be constitutional. We hold only that a State may make due allowance for pleas in its sentencing decisions and that New Jersey has not exceeded its powers in this respect by its statutory provision extending the possibility of leniency to those who plead non vult in homicide cases.

Indeed, despite the appellant’s claim that the statute coerces or encourages guilty pleas, the appellant himself pleaded not guilty, went to trial and was convicted. The petitioner in United States v. Jackson, by contrast, brought a facial attack on the constitutionality of the statute by way of a motion to dismiss the indictment. See 390 U. S., at 571.

“[T]he plea is not evidence. Nor is it testimonial. It is not under oath. Nor is it subject to cross-examination. When it is 'not guilty,’ it has no effect as testimony or evidence .... The function of that plea is to put the Government to its proof and to preserve the right to defend. . . .

“If the plea were testimonial or evidentiary, the court would have no power to demand it. . . . But if, having used its power to extract the plea for its proper purpose, it can go further and over the defendant’s objection convert or pervert it into evidence, in substance if not in form it compels the defendant to testify in his own case. That it has no power to do.” Wood v. United States, 75 U. S. App. D. C. 274, 282-283, 128 F. 2d 265, 273-274 (1942) (Rutledge, J.).

See also Sorrells v. United States, 287 U. S. 435, 452 (not-guilty plea is not inconsistent with entrapment defense even though latter implies admission that the offense was committed); State v. Valentina, 71 N. J. L. 552, 556, 60 A. 177, 179 (1905) (not-guilty plea and confession of guilt are not inconsistent).

Among the implications of the Fifth Amendment privilege against self-incrimination is that “[g] overaments, state and federal, [may be] constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Malloy v. Hogan, 378 U. S. 1, 7-8. As expressed by Dean Wigmore, the Fifth Amendment gives the individual the right to “requir[e] the government in its contest with the individual to shoulder the entire load.” 8 J. Wigmore, Evidence § 2251, p. 317 (McNaughten rev. ed. 1961), quoted in Murphy v. Waterfront Comm’n, 378 U. S. 52, 55.

“Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty.” Davis v. United States, 160 U. S. 469, 485-486. See Byrd v. United States, 119 U. S. App. D. C. *229360, 362, 342 F. 2d 939, 941 (1965); United States v. Mayfield, 59 F. 118, 119 (ED La. 1893).

Long before the incorporation of the Fifth Amendment into the Fourteenth, the States had firmly enforced these principles:

“[A] plea of not guilty, to a criminal charge, at once calls to the defense of defendant the presumption of innocence, denies the credibility of evidence for the State, and casts upon the State the burden of establishing guilt beyond a reasonable doubt. . . . These words are not mere formalities, but express vital principles of our criminal jurisprudence and criminal procedure. These principles ought not to be readily abandoned, or worn away by invasion.” State v. Hardy, 189 N. C. 799, 80-L-805, 128 S. E. 152, 155 (1925).

“Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the 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.” United States v. Jackson, 390 U. S., at 581 (footnote omitted).

This conclusion was the predicate for the Court’s holding in Lindsey v. Washington, 301 U. S. 397. In that case the Court held that a change in statutory sentencing provisions for burglary could not be applied retroactively even though the new provisions did not increase the 15-year maximum sentence, but only made it mandatory:

“The effect of the new statute is to make mandatory what was before only the maximum sentence. . . .

“Removal of the possibility of a sentence of less than fifteen years . . . operates to [defendants’] detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old.” Id., at 400-401.

Accord, Dobbert v. Florida, 432 U. S. 282, 300 (“[0]ne is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous *231than that which he might have received under the old”). See also Lockett v. Ohio, 438 U. S. 586, 619 (Blackmun, J., concurring in judgment) (A statutory sentencing scheme under which “a defendant can plead not guilty only by enduring a semimandatory [death-penalty provision], rather than [the] purely discretionary, capital-sentencing provision” applicable to defendants who plead guilty creates a “disparity between a defendant’s prospects under the two sentencing alternatives [that] is . . . too great to survive under Jackson”).

Mr. Justice Stone’s opinion for the unanimous Court in Lindsey also disposes of appellee’s argument that the statute here is distinguishable from the one in Jackson because it does not make death the consequence of a “false” not-guilty plea: When “a punishment for murder of life imprisonment or death [is] changed to death alone,” it is “only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and a minimum punishment by making the maximum compulsory.” 301 U. S., at 401. In either case, “[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive” less than the maximum. Id., at 402-403. See also Brady v. United States, 397 U. S. 742, 747-752, holding that a defendant who pleads guilty to avoid the death penalty is entitled to no different treatment from one who pleads guilty to avoid any other “maximum sentence authorized by law.”

In one important respect, the statute invalidatedin Jackson was less onerous than the New Jersey statute involved in this case. The Jackson defendant could avoid the more severe penalty by merely forgoing his Sixth Amendment right to a jury and trying the case to the court alone. Here, however, the price of avoiding the statutory penalty for an incorrect plea of not guilty is the waiver not only of the right to a jury but also the right to put the government to its proof, to confront one’s accusers, and to present a defense. See Boykin v. Alabama, 395 U. S. 238, 243.

See North Carolina v. Pearce, 395 U. S. 711, 723. Whenever this flexibility and individualization has given way to prosecutorial or judicial vindictiveness against those who assert their rights, the Court has condemned the practice. Id., at 725. The message of Pearce, as well as Jackson; Brady v. United States, supra; Chaffin v. Stynchcombe, 412 U. S. 17; and Bordenkircher v. Hayes, 434 U. S. 357, is that where the legislature, prosecutor, judge, or all three “deliberately employ their charging and sentencing powers to induce [a] defendant to tender a plea of guilty/' Brady, supra, at 751 n. 8, and where they do so with the “objective [of] penalizing] a person’s reliance on his legal rights, [such action] is 'patently unconstitutional.’ ” Bordenkircher, supra, at 363, quoting Chaffin, supra, at 32-33, n. 20.

This point was made most forcefully in Brady v. United States. In that case, the Court upheld a conviction under the same statute challenged in Jackson. However, petitioner in Brady, unlike respondent in Jackson, had not received a higher sentence as “the price of a jury trial.” 397 U. S., at 746. Instead, he had knowingly and voluntarily pleaded guilty and brought himself within the lower range of penalties provided for those who did not insist upon trial. The Court affirmed the conviction because the plea-bargaining process, even when buttressed by the invalid statute, was not “inherently coercive of guilty pleas.” Ibid.

See Bordenkircher v. Hayes, supra, at 364.

See Coker v. Georgia, 433 U. S. 584, 594. Cf. United States v. Hudson and Goodwin, 7 Cranch 32.

“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes, supra, at 363.

United States v. Hare, 26 P. Cas. 148 (No. 15,304) (CC Md. 1818); United States v. Gibert, 25 F. Cas. 1287 (No. 15,204) (CC Mass. 1834) (Story, J.). The days have long since passed when a refusal to plead qualified as an admission of guilt or an invitation for the extraction of a plea through torture or piene forte et dure. See McPhaul v. United States, 364 U. S. 372, 386-387 (Douglas, J., dissenting); In re Smith, 13 F. 25 (CC Mass. 1882). Today, it is universally accepted that silence at arraignment is equivalent to a plea of not guilty. See United States v. Beadon, 49 F. 2d 164 (CA2 1931), cert. denied, 284 U. S. 625.