342
Thomas, J., dissenting
cluding Carter v. Kentucky, 450 U. S. 288 (1981), should be reexamined.
As Justice Scalia notes, the "illogic of the Griffin line is plain" and its historical "pedigree is equally dubious." Ante, at 332 (emphasis added). Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premise that comments about a defendant's silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614; Carter, supra, at 301. As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly "penalize" a defendant. See 380 U. S., at 620-621 (opinion of Stewart, J., joined by White, J.) ("Exactly what the penalty imposed consists of is not clear"); id., at 621 ("[T]he Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive"). Prosecutorial comments on a defendant's decision to remain silent at trial surely impose no greater "penalty" on a defendant than threats to indict him on more serious charges if he chooses not to enter into a plea bargain—a practice that this Court previously has validated. See, e. g., Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978) (finding no due process violation where plea negotiations "presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution"). Moreover, this so-called "penalty" lacks any constitutional significance, since the explicit constitutional guarantee has been fully honored—a defendant is not "compelled . . . to be a witness against himself," U. S. Const., Amdt. 5, merely because the jury has been told that it may draw an adverse inference from his failure to testify. See Griffin, supra, at 621 (Stewart, J., joined by White, J., dissenting) ("[C]omment by counsel and the court does not compel testimony by creating such an awareness" of a de-
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