Monroe Brown, an inmate of the Nebraska Penal and Correctional Complex, appeals from the district court's1 denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Brown was convicted of robbery after a jury trial in the district court of Douglas County, Nebraska. Upon the state's motion, Brown was found to be an habitual criminal pursuant to Nebraska's habitual criminal statute,2 and received an enhanced sentence of ten years imprisonment. The Supreme Court of Nebraska affirmed Brown's conviction. State v. Brown, No. 38942, Supreme Court of Nebraska.

Having exhausted his state remedies, Brown sought habeas corpus relief in the United States District Court for the District of Nebraska. He alleged that the Nebraska habitual criminal statute under which he was sentenced was unconstitutional because it constituted cruel and unusual punishment. After an evidentiary hearing and the submission of the state court record, the district court rejected Brown's contentions and dismissed his petition for a writ of habeas corpus. Brown v. Parratt, 419 F. Supp. 44 (D.Neb.1976). Brown appeals that decision.

The sole issue on this appeal is whether the Nebraska habitual criminal statute constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. First, Brown contends that because the prosecuting attorney has unlimited discretion to prosecute under the habitual criminal statute, the resulting sentence is cruel and unusual punishment. Brown's argument in this regard is identical to the argument raised in Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977).3 In Martin, the petitioner contended that such unfettered discretion amounted to such arbitrariness and capriciousness as to constitute cruel and unusual punishment. This court rejected that contention. Martin v. Parratt, supra, 549 F.2d at 52. See also Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 2937, 49 L. Ed. 2d 859 (1976). Opportunities for discretionary action are inherent in the prosecution of criminal cases. The district court noted that "Other recidivist offenders may have legitimately avoided enhanced penalties by the decision of state authorities to afford mercy or by plea bargaining, both of which are unquestionably constitutional forms of prosecutorial discretion." Brown v. Parratt, supra, 419 F.Supp. at 48 (footnote omitted). Accordingly, we find Brown's first argument unpersuasive. Second, Brown contends that the application of the Nebraska habitual criminal statute during the relevant time period was so infrequent and arbitrary as to be "freakish" within the meaning of Gregg v. Georgia, supra, and Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). According to Brown, the statute is unconstitutional as applied to him because such "freakish" application of the statute constitutes cruel and unusual punishment. He bases this argument on statistics for 1970-72 in Douglas County, which show that 104 defendants were eligible to be charged as habitual criminals, 14 were actually charged, and 3 were deemed habitual criminals.

The Eighth Amendment's proscription of cruel and unusual punishment is not limited to the death penalty. However, the freakishness rationale which implicates the Eighth Amendment has been discussed only in the context of the death penalty. See Gregg v. Georgia, supra, and Furman v. Georgia, supra. The question then becomes whether the standard of freakishness should be applied in non-death penalty cases, such as the instant case.

We conclude that the Furman rationale of freakishness is limited primarily to cases involving the death penalty. The following language indicates that Furman was based, at least in part, on the uniquely grave nature of the death penalty:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. * * * (T)he petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. * * * I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Furman v. Georgia, supra, 408 U.S. at 306, 309-10, 92 S. Ct. at 2760, 2762-2763 (footnote omitted) (Stewart, J., concurring). Our conclusion is further supported by Gregg :

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. * * *

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Gregg v. Georgia, supra, 96 S.Ct. at 2932 (emphasis added). Consequently, an infrequent application of the Nebraska habitual criminal statute does not render the statute unconstitutional as cruel and unusual punishment. We therefore need not reach the question of whether it was so infrequently imposed in Douglas County, Nebraska, that it could be deemed "freakish." Accordingly, we find the statute was not violative of the Eighth Amendment as applied to Brown.

Affirmed.

In Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977), this Court held that the Nebraska habitual criminal statute does not "(give) the prosecutor unreviewable discretion to control petitioner's sentencing, thereby denying him (the defendant) due process and equal protection of the laws in violation of the fourteenth amendment." In my judgment, Martin was incorrectly decided and should be reversed by this Court. I recognize that this panel must adhere to the decision in Martin but the Court en banc should change that result when the opportunity arises.1

The Habitual Criminal Statute of Nebraska2 provides that anyone charged and convicted as a habitual criminal must be sentenced to a minimum term of ten years. This result obtains even when the trial court feels, as it did here, that the sentence is grossly disproportionate to the seriousness of the triggering offense.3 The trial court may place the convicted defendant on probation but it must impose the minimum required by the statute.

Nebraska is the only state in the Eighth Circuit which vests such broad sentencing discretion in its prosecuting attorneys.4 Arkansas,5 South Dakota6 and Minnesota7 authorize, but do not require, the trial court to impose additional penalties for habitual felony violators. Iowa mandates an additional sentence for habitual criminals but permits the Court to determine the length of the sentence.8 Missouri leaves the trial courts with considerable discretion.9 While the Supreme Court has considered a number of cases involving the constitutionality of recidivist statutes, it has not decided the question of whether such statutes are unlawful because they give virtually unreviewable sentencing discretion to prosecuting attorneys.

Professor Kenneth Culp Davis has noted in his commentary Discretionary Justice: A Preliminary Inquiry (1969):

(J)udicial intrusion into the prosecuting function is contrary to the settled judicial tradition. But why is it? Is it because the tradition became settled during the nineteenth century when courts were generally assuming that judicial intrusion into any administration would be unfortunate? Is it because the tradition became settled while the Supreme Court was actuated by its 1840 remark that "The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief"? Is it because the tradition became settled before the courts made the twentieth-century discovery that the courts can interfere with executive action to protect against abuses but at the same time can avoid taking over the executive function? Is it because the tradition became settled before the successes of the modern system of limited judicial review became fully recognized?

On the basis of what the courts know today about leaving administration to administrators but at the same time providing an effective check to protect against abuses, should the courts not take a fresh look at the tradition that prevents them from reviewing the prosecuting function? Throughout the governmental system, courts have found that other administrative or executive functions are in need of a judicial check, with a limited scope of review. The reasons for a judicial check of prosecutors' discretion are stronger than for such a check of other administrative discretion that is now traditionally reviewable. Important interests are at stake. Abuses are common. The questions involved are appropriate for judicial determination. And much injustice could be corrected.

Id. at 211-212 (emphasis included and footnotes omitted).

This commentary is consistent with the dissent in Berra v. United States, 351 U.S. 131, 138, 140, 76 S. Ct. 685, 690, 691, 100 L. Ed. 1013 (1956) (Black and Douglas, JJ., dissenting). The dissenters said:

I think we should construe these sections so as not to place control over the liberty of citizens in the unreviewable discretion of one individual a result which seems to me wholly incompatible with our system of justice. * * * Of course it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual. * * * No such protections are thrown around decisions by a prosecuting attorney. Substitution of the prosecutor's caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command.

Discretionary Justice, supra at n.38, 214.

Professor Davis's admonition is not inconsistent with the majority's statement in Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962), that "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." (Emphasis added.) Here, the selectivity is unrestrained.10

Steps to curb prosecutorial discretion in a limited manner would give substance to the American Bar Association's standards relating to the administration of criminal justice,11 to the recommendations embodied in § 7.03 of the Model Penal Code,12 and would discourage abuse of prosecutorial discretion.

In summary, then, I believe the Nebraska Habitual Criminal Statute vests unreviewable sentencing authority in the prosecuting attorney in violation of the due process clause of the Fourteenth Amendment. In my judgment, Martin was incorrectly decided and ought to be reversed.

After carefully reviewing the record, I have serious doubts about the constitutionality of the plea bargaining process in this case and the use of the habitual criminal statute as part of that process. In his first amended petition for habeas corpus, Brown argued that the Nebraska Habitual Criminal Statute was unconstitutional as applied because it can be used to chill the exercise of a defendant's right to trial by jury and because it induces involuntary guilty pleas. It does not appear from the record before us that this issue was raised before the Nebraska Supreme Court. For this reason the District Court should not have considered it as part of Brown's habeas motion and, in my view, he remains free to raise the issue in state court. If he is denied relief there, he may raise it again in federal court.

In ruling on this issue, the District Court held that Brown could not raise the claim because he did not plead guilty. In my judgment, the District Court misperceived the issue and the standing considerations involved; and because of this misperception, I feel compelled to express my views.

Brown claims that initially he was charged with robbery and asked to plead guilty to that offense. He refused. Subsequently, the information was amended to include a larceny charge. Brown alleges that he was told the robbery charge would be dismissed if he pled guilty to the larceny charge. Again, he refused the offer. At this point, he claims he was told that unless he pled guilty to the larceny charge, that charge would be withdrawn and he would be charged as a habitual criminal. He refused this offer and was so charged.

The issue, as I view it, is not whether the statute was used to coerce a guilty plea but whether it was employed, and can be employed in similar situations, to chill the defendant's exercise of his right to trial before an impartial fact finder.

Plea bargaining is well established in the administration of criminal justice. Properly conducted and fairly negotiated, plea bargaining serves a useful purpose for society, the prisoner and the quality of justice in those cases which must be tried. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); see also Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). However, the considerations which support the plea bargaining process do not authorize a prosecutor to threaten defendants with additional charges if they insist on rights guaranteed by the Constitution. United States v. DeMarco, 401 F. Supp. 505, 511 (D.C.Cal.1975). See generally Griffith v. Wyrick, 527 F.2d 109 (8th Cir. 1975); United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S. Ct. 1613, 40 L. Ed. 2d 112 (1974). Prosecutors may charge a defendant with each and every violation authorized by statute for the offense committed. A defendant so charged is not coerced in constitutional terms to forego his right to trial by an impartial fact finder when he agrees to plead guilty to one of the charges with the understanding that the others will be dropped. This process merely enables the defendant to accept the certainty of a lesser penalty rather than face a wide range of possibilities ranging from acquittal to conviction on each of the several charges. Brady v. United States, supra. Because the defendant is charged initially with each of the various offenses, there is no implication that the more severe charges are added for vindictive or threatening purposes. Here, however, it is alleged that the habitual criminal charge was included in response to Brown's refusal to plea to a lesser charge and his persistence in demanding a trial of the issues.

On several occasions, the Supreme Court and various appellate courts have registered their disapproval of practices involving the escalation of sentences or charges filed in response to a defendant's insistence on asserting constitutional rights. In North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the defendant's initial conviction was reversed on constitutional grounds. Subsequently, he was retried, convicted and sentenced to a harsher term than first imposed. In affirming the reversal of his second sentence on due process grounds, the Court noted the chilling effect which the threat of an increased sentence on retrial could have on a defendant's willingness to exercise his right of appeal. North Carolina v. Pearce, supra at 724-726, 89 S. Ct. 2072. See also Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

In United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973), the district judge advised the defendant prior to trial that if he pled guilty to one count, he would receive a three-year sentence, but if he chose to stand trial and was convicted, he would receive a five- to seven-year sentence for the same offense. The defendant pled not guilty, was convicted and sentenced to seven years. The Court of Appeals reversed the sentence holding that the defendant could not be punished with a longer sentence for electing to stand trial. See also United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974).

Finally, in United States v. DeMarco, 401 F. Supp. 505 (C.D.Cal.1975), an indictment was dismissed when it was learned that the charges contained therein were filed in retaliation for the defendant's insistence on asserting his right to have the venue of the original trial changed. See also United States v. Anderson, 468 F.2d 440 (5th Cir. 1972); Lassiter v. Turner, 423 F.2d 897 (4th Cir. 1970). Contra, Peterson v. State of Missouri, 355 F. Supp. 1371 (W.D.Mo.1973); Ford v. United States, 295 F. Supp. 1180 (E.D.Mo.1969). I believe the principles enunciated in these cases control the outcome in ours if Brown can prove the facts he alleges.

Finally, the issue of standing must be addressed. Apparently, the District Court felt that because the alleged inducement was unsuccessful (i. e., Brown refused to plead guilty and proceeded to trial), Brown lacked standing to assert that the statute and the plea bargaining process were unconstitutional as applied to him. I disagree with that holding for two reasons. First, the court in DeMarco dismissed the retaliatory indictment even though the defendant successfully asserted his change of venue motion. The fact that the indictment was brought for a retaliatory purpose was sufficient to warrant its dismissal even though its intended purpose, to discourage the venue motion, was not accomplished. Similarly, I think the fact that the habitual criminal charge was brought for an unlawful purpose is sufficient to permit Brown to argue its constitutionality.

Second, I believe that this case presents the type of constitutional question which courts have traditionally heard even though it may be argued that the party raising the claim was not injured thereby. In my opinion, the threat offered in this case is one that may be repeated in the future and oftentimes will not succeed. Thus, it is clearly one that is "capable of repetition, yet evading review". Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911). In such circumstances, courts have traditionally relaxed barriers to review on the merits. I would do so here.