source: Caselaw Access Project

author:
Mr. Chief Justice Burger
      Mr. Justice Brennan,

license: Public Domain

text:
    ROWAN, dba AMERICAN BOOK SERVICE, et al. v. UNITED STATES POST OFFICE DEPARTMENT et al.
    No. 399.
    Argued January 22, 1970
    Decided May 4, 1970

      Joseph Taback argued the cause and filed a brief for appellants.

      Assistant Attorney General Ruckelshaus argued the cause for appellees. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Robert V. Zener, and Donald L. Horowitz.

      Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Lloyd G. Milliken filed a brief for the Attorney General of New York as amicus curiae urging affirmance. David E. McGiffert filed a brief for the Direct Mail Advertising Association, Inc., as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39 U. S. C. §4009 (1964 ed., Supp. IY), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.

A brief description of the statutory framework will facilitate our analysis of the questions raised in this appeal. Section 4009 is entitled “Prohibition of pandering advertisements in the mails.” It provides a procedure whereby any householder may insulate himself from advertisements that offer for sale “matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.” 39 U. S. C. § 4009 (a) (1964 ed., Supp. IV).

Subsection (b) mandates the Postmaster General, upon receipt of a notice from the addressee specifying that he has received advertisements found by him to be within the statutory category, to issue on the addressee's request an order directing the sender and his agents or assigns to refrain from further mailings to the named addressee. Additionally, subsection (c) requires the Postmaster General to order the affected sender to delete the name of the designated addressee from all mailing lists owned or controlled by the sender and prohibits the sale, rental, exchange, or other transactions involving mailing lists bearing the name of the designated addressee.

If the Postmaster General has reason to believe that an order issued under this section has been violated, subsection (d) authorizes him to notify the sender by registered or certified mail of his belief and the reasons therefor, and grant him an opportunity to respond and have a hearing on whether a violation has occurred.

If the Postmaster General thereafter determines that the order has been or is being violated, he is authorized to request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants to the district court jurisdiction to issue a compliance order upon application of the Attorney General.

Appellants initiated an action in the United States District Court for the Central District of California upon a complaint and petition for declaratory relief on the ground that 39 U. S. C. §4009 (1964 ed., Supp. IV) is unconstitutional. They alleged that they had received numerous prohibitory orders pursuant to the provisions of the statute. Appellants contended that the section violates their rights of free speech and due process guaranteed by the First and Fifth Amendments to the United States Constitution. Additionally, appellants argued that the section is unconstitutionally vague, without standards, and ambiguous.

A three-judge court was convened pursuant to 28 U. S. C. § 2284 and it determined that the section was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee. 300 F. Supp. 1036.

The District Court construed subsections (b) and (c) to prohibit “advertisements similar” to those initially mailed to the addressee. Future mailings, in the view of the District Court, “are to be measured by the objectionable material of such first mailing.” 300 F. Supp., at 1041. In our view Congress did not intend so restrictive a scope to those provisions.

I. Background and Congressional Objectives

Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not seek and did not want it. Use of mailing lists of youth organizations was part of the mode of doing business. At the congressional hearings it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony of child psychology specialists and psychiatrists before the House Committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.

To accomplish these objectives Congress provided in subsection (a) that the mailer is subject to an order "to refrain from further mailings of such materials to designated addressees.” Subsection (b) states that the Postmaster General shall direct the sender to refrain from “further mailings to the named addressees.” Subsection (c) in describing the Postmaster’s order states that it shall “expressly prohibit the sender . . . from making any further mailings to the designated addressees . . . .” Subsection (c) also requires the sender to delete the addressee’s name “from all mailing lists” and prohibits the sale, transfer, and exchange of lists bearing the addressee’s name.

There are three plausible constructions of the statute, with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressees, all future mailings of advertising material to the addressees, or all future mailings of similar materials.

The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was initially proposed. The section as originally reported by the House Committee prohibited “further mailings of such pandering advertisements,” § 4009 (a), “further mailings of such matter,” § 4009 (b), and “any further mailings of pandering advertisements,” § 4009 (c). H. R. Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, “as that term is used in the Ginzburg case.” Id., at 69.

The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove “the right of the Government to involve itself in any determination of the content and nature of these objectionable materials . . . .” 113 Cong. Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee’s name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment Congressman Waldie stated:

“So I have said in my amendment that if you receive literature in your household that you consider objectionable . . . you can inform the Postmaster General to have your name stricken from that mailer’s mailing list.” 113 Cong. Rec. 28660.

The Senate Committee Report on the bill contained similar language:

“If a person receives an advertisement which . . . he . . . believes to be erotically arousing ... he may notify the Postmaster General of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind to such person.” S. Rep. No. 801, 9fith Cong., 1st Sess., 38.

Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows:

“With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address . . . .” 113 Cong. Rec. 34231 (1967).

The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General “shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.” 39 U. S. C. § 4009 (c) (1964 ed., Supp. IV).

It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee’s name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. See n. 6, infra. The impact of this aspect of the statute is on the mailer, not the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open to at least two criticisms: (a) it would expose the householder to further burdens of scrutinizing the mail for objectionable material and possible harassment, and (b) it would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship. It is difficult to see how the Postmaster General could decide whether the materials were “similar” or possessing touting or pandering characteristics without an evaluation suspiciously like censorship. Additionally, such an interpretation would be incompatible with the unequivocal language in subsection (c).

II. First Amendment Contentions

The essence of appellants’ argument is that the statute violates their constitutional right to communicate. One sentence in appellants’ brief perhaps characterizes their entire position:

“The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever is imperative to a free and sane society.” Brief for Appellants 15.

Without doubt the public postal system, is an indispensable adjunct of every civilized society and communication is imperative to a healthy social order. But the right of every person “to be let alone” must be placed in the scales with the right of others to communicate. *

In today’s complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today’s merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman’s mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.

In Martin v. Struthers, 319 U. S. 141 (1943), Mr. Justice Black, for the Court, while supporting the “[fjreedom to distribute information to every citizen,” id., at 146, acknowledged a limitation in terms of leaving “with the homeowner himself” the power to decide “whether distributors of literature may lawfully call at a home.” Id., at 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.

The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra; cf. Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U. S. 875 (1948). In this case the mailer’s right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.

To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that “a man’s home is his castle” into which “not even the king may enter” has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U. S. 523 (1967).

Both the absoluteness of the citizen’s right under § 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents — or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.

In effect, Congress has erected a wall — or more accurately permits a citizen to erect a wall — that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped.

We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good” ideas on an unwilling recipient. That we are often “captives” outside the sanctuary of the home and subject to objectionable speech and other sound does, not mean we must be captives everywhere. See Public Utilities Comm’n v. Pollak, 343 U. S. 451 (1952). The asserted right of a mailer, we repeat, stops at the outer boundary of every person’s domain.

The statutory scheme at issue accords to the sender an “opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944). It thus comports with the Due Process Clause of the Fifth Amendment. The statutory scheme accomplishes this by providing that the Postmaster General shall issue a prohibitory order to the sender on the request of the complaining addressee. Only if the sender violates the terms of the order is the Postmaster General authorized to serve a complaint on the sender, who is then allowed 15 days to respond. The sender can then secure an administrative hearing. The sender may question whether the initial material mailed to the addressee was an advertisement and whether he sent any subsequent mailings. If the Postmaster General thereafter determines that the prohibitory order has been violated, he is authorized to request the Attorney General to make application in a United States District Court for a compliance order; a second hearing is required if an order is to be entered.

The only administrative action not preceded by a full hearing is the initial issuance of the prohibitory order. Since the sender risks no immediate sanction by failing to comply with that order — it is only a predicate for later steps — it cannot be said that this aspect of the procedure denies due process. It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U. S. 393, 396 (1934).

The appellants also contend that the requirement that the sender remove the addressee’s name from all mailing lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressees from the lists and cease all mailings to those persons.

Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of the names are prohibitive. We agree with the conclusion of the District Court that the “burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises.” 300 F. Supp., at 1041. See California State Auto Ins. Bureau v. Maloney, 341 U. S. 105 (1951).

There is no merit to the appellants’ allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff, 344 U. S. 174, 176 (1952). Here the appellants know precisely what they must do on receipt of a prohibitory order. The complainants’ names must be removed from the sender’s mailing lists and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation.

For the reasons stated, the judgment appealed from is affirmed.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Douglas joins,

concurring.

I join the Court’s opinion but add a few words. I agree that 39 U. S. C. § 4009 (1964 ed., Supp. IV) is constitutional insofar as it permits an addressee to require a mailer to remove his name from its mailing lists and to stop all future mailings to the addressee. As the Court notes, however, subsection (g) of § 4009 also allows an addressee to request the Postmaster General to include in any prohibitory order “the names of any of his minor children who have not attained their nineteenth birthday, and who reside with the addressee.” In light of the broad interpretation that the Court assigns to §4009, and see ante, at 738, the possibility exists that parents could prevent their children, even if they are 18 years old, from receiving political, religious, or other materials that the parents find offensive. In my view, a statute so construed and applied is not without constitutional difficulties. Cf. Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); Ginsberg v. New York, 390 U. S. 629 (1968). In this case, however, there is no particularized attack upon the constitutionality of subsection (g), nor, indeed, is there any indication on this record that under § 4009 (g) children in their late teens have been unwillingly deprived of the opportunity to receive materials. In these circumstances, I understand the Court to leave open the question of the right of older children to receive materials through the mail without governmental interference and also the more specific question whether § 4009 (g) may constitutionally be applied with respect to all materials and to all children under 19.

       Subsection (g) provides that upon the addressee’s request the order shall include the names of the addressee’s minor children who reside with him and who have not attained their nineteenth birthday.

       Judge Hufstedler, concurring specially but without dissent, would require the District Court prior to issuing a compliance order to determine de novo whether the sender is a person who has mailed or has caused to be mailed any pandering advertisements.

       Senator Hruska spoke similarly: “Title III would allow the recipient of obscene mail to return it to the Postmaster General with a request that the Postmaster General notify the sender to stop mailings to, the addressee 113 Cong. Rec. 34232 (1967).

       Subsection (d) vests the Postmaster General with the duty to determine whether the sender has violated the order. This determination was intended to be primarily a ministerial one involving an adjudication whether the initial material was an advertisement and whether the sender mailed materials to the addressee more than 30 days after the receipt of the prohibitory order. An interpreta.tion which requires the Postmaster General to determine whether the subsequent material was pandering and/or similar would tend to place him “astride the flow of mail . . . .” Lamont v. Postmaster General, 381 U. S. 301, 306 (1965).

       Although subsection (h) specifically excludes the pre-complaint hearing from the provisions of the Administrative Procedure Act, 5 U. S. C. § 554 et seq. (1964 ed., Supp. IV), the Post Office Department has promulgated regulations setting forth procedures governing the departmental administrative hearings. 39 CFR pt. 916.

       The function of the district court is similar to that of the Postmaster General. It is to determine whether the initial mailing included advertising material and whether there was a mailing by the sender to the addressee more than 30 days after receipt of the order. We reject the suggestions that the section should be read to require the district judge to make a determination of the addressee’s good faith, or to conduct an independent adjudication of the pandering nature of the material. The statute was intended to entrust unreviewable discretion to the addressee to determine whether or not the advertisement was "erotically arousing or sexually provocative.” “[T]he sole determination as to whether the literature you receive is objectionable or not is within your discretion and you are not second-guessed on that discretion.” 113 Cong. Rec. 28660 (1967) (remarks of Congressman Waldie).


author: Mr. Justice White

text:
    BRADY v. UNITED STATES
    No. 270.
    Argued November 18, 1969
    Decided May 4, 1970

      Peter J. Adang, by appointment of the Court, 396 U. S. 809, argued the cause and filed a brief for petitioner.

      Joseph J. Connolly argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Marshall Tamor Golding.

   Mr. Justice White

delivered the opinion of the Court.

In 1959, petitioner was charged with kidnaping in violation of 18 U. S. C. § 1201 (a). Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea. Petitioner was sentenced to 50 years’ imprisonment, later reduced to 30.

In 1967, petitioner sought relief under 28 TJ. S. C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201 (a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.

After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner’s counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201 (a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty “by reason of other matters and not by reason of the statute” or because of any acts of the trial judge. The court concluded that “the plea was voluntarily and knowingly made.”

The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court’s findings were supported by substantial evidence and specifically approving the finding that petitioner’s plea of guilty was voluntary. 404 F. 2d 601 (1968). We granted certiorari, 395 U. S. 976 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court’s decision in United States v. Jackson, 390 U. S. 570 (1968). We affirm.

I

In United States v. Jackson, supra, the defendants were indicted under § 1201 (a). The District Court dismissed the § 1201 (a) count of the indictment, holding the statute unconstitutional because it permitted imposition of the death sentence only upon a jury’s recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court “that the death penalty provision . . . imposes an impermissible burden upon the exercise of a constitutional right . . . 390 U. S., at 572. The problem was to determine “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.” 390 U. S., at 581. The inevitable effect of the provision was said to be 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. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision “needlessly penalize [d] the assertion of a constitutional right,” 390 U. S., at 583, and was therefore unconstitutional.

Since the “inevitable effect” of the death penalty provision of § 1201 (a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.

The Court made it clear in Jackson that it was not holding § 1201 (a) inherently coercive of guilty pleas: “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.” 390 U. S., at 583. Cited in support of this statement, 390 U. S., at 583 n. 25, was Laboy v. New Jersey, 266 F. Supp. 581 (D. C. N. J. 1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.

Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201 (a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, “however clear [the defendants’] guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.” “[T]hat jury waivers and guilty pleas may occasionally be rejected” was no ground for automatically rejecting all guilty pleas under the statute, for such a rule “would rob the criminal process of much of its flexibility.” 390 U. S., at 584.

Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201 (a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both “voluntary” and “intelligent.” See Boykin v. Alabama, 395 U. S. 238, 242 (1969).

That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. On neither score was Brady’s plea of guilty invalid.

II

The trial judge in 1959 found the plea voluntary-before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady’s guilty plea.

The voluntariness of Brady’s plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U. S. 503, 513 (1963); Leyra v. Denno, 347 U. S. 556, 558 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty. But even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a “but for” cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.

The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State’s law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State’s responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.

Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady’s claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.

Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations, as in Brady’s case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty., We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.

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 the 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.

Bram v. United States, 168 U. S. 532 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be “ ‘freN and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” 168 U. S., at 542-543. More recently, Malloy v. Hogan, 378 U. S. 1 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.

Bram is not inconsistent with our holding that Brady’s plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U. S. 436 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.

Brady’s situation bears no resemblance to Bram’s. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. Brady’s plea, unlike Bram’s confession, was voluntary.

The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:

“ ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).’ 242 F. 2d at page 115.”

Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.

Ill

The record before us also supports the conclusion that Brady’s plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.

It is true that Brady’s counsel advised him that § 1201 (a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady’s conviction.

Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U. S. 708 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.

This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continúe to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants’ admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady’s plea or suggests that his admissions in open court were anything but the truth.

Although Brady’s plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.

Affirmed.

Mr. Justice Black, while adhering to his belief that United States v. Jackson, 390 U. S. 570, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.

[For opinion of Mr. Justice Brennan, concurring in the result, see post, p. 799.]

       “Whoever knowingly transports in interstate or foreign commerce, any person who has been unlarviully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.”

       Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:
      “THE COURT: . . . Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?
      “DEFENDANT BRADY: I want to let that plea stand, sir.
      “THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
      “DEFENDANT BRADY: Yes, your Honor.
      “THE COURT: And you do do that?
      “DEFENDANT BRADY: Yes, I do.
      “THE COURT: You plead guilty to the charge?
      “DEFENDANT BRADY: Yes, I do.” App. 29-30.

       When petitioner pleaded guilty, Rule 11 read as follows:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty."
      Rule 11 was amended in 1966 and now reads as follows:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
      In McCarthy v. United States, 394 U. S. 459 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U. S. 831 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.

       The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.

        Machibroda v. United States, 368 U. S. 487, 493 (1962); Waley v. Johnston, 316 U. S. 101, 104 (1942); Walker v. Johnston, 312 U. S. 275, 286 (1941); Chambers v. Florida, 309 U. S. 227 (1940); Kercheval v. United States, 274 U. S. 220, 223 (1927).

       See Brookhart v. Janis, 384 U. S. 1 (1966); Adams v. United States ex rel. McCann, 317 U. S. 269, 275 (1942); Johnson v. Zerbst, 304 U. S. 458, 464 (1938); Patton v. United States, 281 U. S. 276, 312 (1930).
      Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956); Von Moltke v. Gillies, 332 U. S. 708 and 727 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U. S. 471 (1945). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968).
      The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U. S. 238 (1969). See nn. 3 and 4, supra.

       Such a possibility seems to have been rejected by the District Court in the §2255 proceedings. That court found that “the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute . . . .”

       We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady’s case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.

       For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37-52 (Approved Draft 1968). of all

       It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).

        Malloy v. Hogan, 378 U. S. 1, 7 (1964). See also Haynes v. Washington, 373 U. S. 503, 513 (1963); Lynumn v. Illinois, 372 U. S. 528 (1963); Wilson v. United States, 162 ü. S. 613, 622-623 (1896).

       “The presence of counsel, in all the eases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against compelled self-incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” Miranda v. Arizona, 384 U. S. 436, 466 (1966).

        Shelton v. United States, 246 F. 2d 571, 572 n. 2 (C. A. 5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U. S. 26 (1958).

       Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F. 2d 457 (C. A. 2d Cir. 1970); United States v. Thomas, 415 F. 2d 1216 (C. A. 9th Cir. 1969); Pindell v. United States, 296 F. Supp. 751 (D. C. Conn. 1969); McFarland v. United States, 284 F. Supp. 969 (D. C. Md. 1968), aff’d, No. 13,146 (C. A. 4th Cir., May 1, 1969), cert. denied, post, p. 1077; Laboy v. New Jersey, 266 F. Supp. 581 (D. C. N. J. 1967); Gilmore v. California, 364 F. 2d 916 (C. A. 9th Cir. 1966); Busby v. Holman, 356 F. 2d 75 (C. A. 5th Cir. 1966); Cooper v. Holman, 356 F. 2d 82 (C. A. 5th Cir.), cert. denied, 385 U. S. 855 (1966); Godlock v. Ross, 259 F. Supp. 659 (D. C. E. D. N. C. 1966); United States ex rel. Robinson v. Fay, 348 F. 2d 705 (C. A. 2d Cir. 1965), cert. denied, 382 U. S. 997 (1966); Overman v. United States, 281 F. 2d 497 (C. A. 6th Cir. 1960), cert. denied, 368 U. S. 993 (1962); Martin v. United States, 256 F. 2d 345 (C. A. 5th Cir.), cert. denied, 358 U. S. 921 (1958). But see Shaw v. United States, 299 F. Supp. 824 (D. C. S. D. Ga. 1969); Alford v. North Carolina, 405 F. 2d 340 (C. A. 4th Cir. 1968), prob. juris, noted, 394 U. S. 956 (1969), restored to calendar for reargument, post, p. 1060.