McKune v. Lile, 536 U.S. 24, 42 (2002)

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Cite as: 536 U. S. 24 (2002)

Stevens, J., dissenting

ernment can extend a benefit in exchange for incriminating statements, see Woodard, 523 U. S., at 288 ("[T]his pressure to speak in the hope of improving [one's] chance of being granted clemency does not make the interview compelled"), but cannot threaten to take away privileges as the cost of invoking Fifth Amendment rights, see, e. g., Turley, 414 U. S., at 82; Spevack, 385 U. S., at 516. Based on this distinction, nothing that I say in this dissent calls into question the constitutionality of downward adjustments for acceptance of responsibility under the United States Sentencing Guidelines, ante, at 47. Although such a reduction in sentence creates a powerful incentive for defendants to confess, it completely avoids the constitutional issue that would be presented if the Guidelines operated like the scheme here and authorized an upward adjustment whenever a defendant refused to accept responsibility. Similarly, taking into account an attorney's acceptance of responsibility or contrition in deciding whether to reinstate his membership to the bar of this Court, see ante, at 40, is obviously different from dis-barring an attorney for invoking his privilege. By obscuring the distinction between penalties and incentives, it is the plurality that calls into question both the Guidelines and plea bargaining. See Corbitt v. New Jersey, 439 U. S. 212, 223- 224 (1978) ("Nor does this record indicate that he was being punished for exercising a constitutional right. . . . [H]omicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed").10

10 The plurality quotes a footnote in Roberts v. United States, 445 U. S. 552 (1980), for the proposition that a principled distinction cannot be drawn between enhancing punishment and denying leniency, ante, at 46. This quote is misleading because, as in Minnesota v. Murphy, 465 U. S. 420 (1984), see n. 7, supra, Roberts failed to assert his privilege against

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