Beyond the Bar
| Publication year | 2022 |
| Pages | 24 |
Sailing Between Scilla and Charybdis: Nolo-Contendere and Alford Pleas
By Warren Moise
(An updated version of a column published 16 years ago, back in 2006.)
I was a fresh fish, right out of law school many, many decades ago, standing before the Honorable Judge Jackson Gregory with my client at a plea hearing. The defendant was living in a dream world and claimed that he was innocent of the crime for which he was indicted. The facts were squarely against him. Nonetheless, my client was angry ("shocked, shocked I tell you") because another defendant had gotten a better plea deal. So, having flipped sooner, my guy would not plead guilty. As we stood there, the assistant solicitor, hovering nearby, shlepped up to offer a suggestion:
"How 'bout an Offered plea?" the assistant solicitor said. "Hmm," I said. "What's an Offered plea?"
"Well, it allows a guilty plea to be entered in your client's name, but the defendant can still claim he was not guilty."
"Judge, may I step into that empty jury room and have a word with my client?" I asked. "Sure," Judge Gregory said.
After a brief recess, we resolved the matter and stood before Judge Gregory who accepted my client's plea. As I recall, Judge Gregory took charge and explained to the Defendant that he was about to enter an Alford plea, more specifically a plea under North Carolina v. Alford. Up to that point, I thought it was an "Offered" Plea, a rude awakening, but rough justice was done.
Ever feel like it's impossible to navigate a difficult plea through uncertain and dangerous seas? Welcome to nolo-contendere and Alford pleas. Called a "foolish concept" by Judge Learned Hand, nolo pleas (meaning "I do not wish to contend") have always been available in the federal courts. Nolo pleas, once known as pleas non vult contendere, might have originated in early medieval times from a procedure whereby a defendant hoping to avoid imprisonment tried to end the prosecution [finem facere] by offering to pay money to the king. 2 F. Pollock & F. Maitland, The History of English Law 517 (2d ed. 1909). English courts, however, tossed the plea into the procedural trash can over three centuries ago, which was a good idea.
The idea for allowing nolo pleas under modern American law is to encourage more cases to plead so courts won't be overwhelmed with trials.
In contrast, Alford pleas are newborn babies, arising from North Carolina v. Alford, 400 U.S. 25 (1970), an appeal decided 52 years ago out of the Fourth Circuit. In an Alford plea, the accused essentially says, "Hey, I'm not guilty but it's a cinch that prosecutor'll convict me anyways. So, I'm going to plead." Some courts call it a "best interest" plea. No mystery there.
Neither nolo nor Alford pleas involve an...
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