The Alford Plea Turns Fifty: Why it Deserves Another Fifty Years

• Publication year: 2022

54 Creighton L. Rev. 1. THE ALFORD PLEA TURNS FIFTY: WHY IT DESERVES ANOTHER FIFTY YEARS

THE ALFORD PLEA TURNS FIFTY: WHY IT DESERVES ANOTHER FIFTY YEARS

Michael Conklin ^[D1]

I. INTRODUCTION

Fifty years ago, in North Carolina v. Alford, ^[1] the United States Supreme Court ruled that it does not violate due process for a judge to accept a guilty plea from a defendant who maintains his innocence. ^[2] Alford pleas are problematic to some, as they allow for the punishing of a defendant who has neither been adjudicated guilty nor admitted guilt. This essay critically evaluates the arguments against Alford pleas. It demonstrates that these anti-Alford plea arguments are largely a product of misunderstandings regarding innocence determinations, what constitutes coercion, and the impracticality of abolishing the practice. Furthermore, this essay discusses the overlooked benefits Alford pleas offer to defendants, victims, the criminal justice system, and society at large.

II. HISTORY OF THE ALFORD PLEA

The practice of negotiating a reduced punishment in return for a guilty plea dates back to the "confessions" of the thirteenth century. ^[3] Plea bargaining has been on a steady upward trajectory throughout United States history, closely linked to increases in criminalization. ^[4] In the eighteenth century, jury trials were predominantly "judge-dominated, lawyer-free procedures conducted so rapidly that plea bargaining was unnecessary." ^[5] In the nineteenth century, more complex rules of evidence and a more adversarial process resulted in increased caseloads and an accompanying increased incentive to plea bargain. ^[6] Courts would often invalidate plea agreements in post-Civil War America, allowing defendants to withdraw their pleas based on precedents prohibiting incentives in return for guilty pleas. ^[7] In the early twentieth century, increased criminalization and the accompanying increases in caseloads helped form our modern plea system. ^[8]

The percentage of convictions from guilty pleas in federal courts from 1908 to 1916 rose from 50% to 72%. ^[9] By 1925, almost 90% of criminal convictions were the result of guilty pleas. ^[10] In the 1970 case of Brady v. United States, ^[11] the United States Supreme Court reluctantly upheld the constitutionality of plea bargaining. ^[12] This case secured the modern, more lenient standard that plea agreements are only required to be "voluntary." ^[13] According to this new standard, as long as a plea is not the result of "actual or threatened physical harm or [made] by mental coercion overbearing the will of the defendant," ^[14] it is considered voluntary. The advent of DNA testing in the 1990s increased awareness of innocent defendants who had accepted guilty pleas. ^[15] But this awareness did little to stall the growth of plea bargaining, which continued on its upward trajectory to the present, where 97% of federal felony convictions are the result of a plea. ^[16]

The Supreme Court decided in Alford that it does not violate due process for a judge to accept a guilty plea from a defendant who maintains his innocence. ^[17] However, the Court also stipulated that acceptance of such a plea is left to the discretion of the trial court judge. ^[18] Therefore, Alford does not create a legal right for defendants to have their pleas accepted. ^[19]

Because Alford pleas are guilty pleas, ^[20] Federal Rule of Criminal Procedure 11 requires that they be made voluntarily, knowingly, and intelligently, "with sufficient awareness of the relevant circumstances and likely consequences." ^[21] One significant difference between traditional pleas and Alford pleas is that the defendant's admission of guilt in a traditional plea generally serves as the required "factual basis" for the judge's acceptance of the plea. ^[22] In an Alford plea, the judge must establish the factual basis for accepting the plea based on an independent assessment. ^[23]

The notion of punishing someone in the absence of an adjudication of guilt and without an admission of guilt may strike laypeople as problematic. ^[24] And some legal scholars are vehemently opposed to it, as demonstrated by the Albert W. Alschuler quote, "[i]f anything short of torture can shock your conscience, Alford pleas should." ^[25] Regardless, Alford pleas are recognized as necessary by criminal justice experts ^[26] and practiced in forty-seven states and the District of Columbia. ^[27]

III. REFUTING THE ARGUMENTS AGAINST ALFORD PLEAS

A. ARBITRARINESS

Because Alford pleas are at the discretion of prosecutors and judges, ^[28] they can be arbitrarily applied. Particular judges, ^[29] prosecutors, ^[30] and even defense attorneys ^[31] may not allow Alford pleas. Therefore, a defendant in one case may be afforded an Alford plea while another similarly situated defendant may not. ^[32] Furthermore, Indiana, Michigan, and New Jersey have complete bans on Alford pleas, thus creating an additional element of geographic arbitrariness. ^[33] This arbitrariness is not only unfair, but also damages the reputation of the legal system.

Response

In a limited sense, Alford pleas are somewhat arbitrary. ^[34] But it is unclear how pointing this out supports the abolishment of the practice. In the absence of Alford pleas, traditional plea bargaining would still be arbitrary. Meaning, similarly situated defendants may receive vastly disparate non Alford plea offers-or no plea offer at all based on numerous arbitrary factors. It is a peculiar proposal to deny one defendant the benefit of an Alford plea on the arbitrariness grounds that some other similarly situated defendant might not be offered an Alford plea. While abolishing the practice of Alford pleas does remove any arbitrariness involved, it is difficult to see who benefits from this course of action. The defendant who was not offered an Alford plea receives no benefit, while the defendant who would have been offered an Alford plea is worse off.

The focus on making the criminal justice system less arbitrary is somewhat misguided. Using this expansive definition of the word "arbitrary," many aspects of the criminal justice system would qualify. Variables such as the makeup of the jury, officer errors in gathering evidence, jurisdiction where the crime occurred, and quality of legal representation all affect legal outcomes. Even factors as trivial as how hungry the judge is, ^[35] the recent performance of a local sports team, ^[36] and the weather ^[37] affect trial outcomes.

B. COLLATERAL CONSEQUENCES

There are collateral consequences that defendants may not take into consideration when they decide to accept an Alford plea. These misunderstandings are not surprising given the amorphous nature by which Alford pleas allow defendants to assert their innocence while simultaneously entering a guilty plea. For example, a defendant may not be aware that the lack of remorse inherent in an Alford plea can be an aggravating factor that increases the harshness of sentencing. ^[38] Defendants may also find it more difficult to be released on parole for this same reason. ^[39] In sex offender cases, Alford pleas may add points to the assessment of defendants' level of risk posed to society due to their refusal to accept responsibility for their actions. ^[40]

Response

Ensuring that defendants are aware of the consequences of their legal decisions is a valid concern. Federal Rule of Criminal Procedure 11 requires that the defendant understand:

the nature of each charge to which the defendant is pleading; any maximum possible penalty, including imprisonment, fine, and term of supervised release; any mandatory minimum penalty; any applicable forfeiture; the court's authority to order restitution; the court's obligation to impose a special assessment; . . . the court's obligation to . . . appl[y] [the] Sentencing Guideline[s], and the court's discretion to depart from those guidelines under some circumstances. ^[41]

Furthermore, in Brady v. United States, ^[42] the United States Supreme Court held that in order for a guilty plea to be accepted, the defendant must be "fully aware" of the consequences. ^[43] It is true that taking away options defendants have-such as Alford pleas-would serve to limit the potential for defendants to be misinformed. But the more pragmatic course of action seems to be simply ensuring that defendants are informed regarding all potential consequences.

C. HINDERS REHABILITATION

Alford pleas hinder defendants' contrition, education, and reform. ^[44] In the absence of Alford pleas, defense attorneys would be incentivized to "persuade clients to face up to [their crimes]." ^[45] Only after defense attorneys "break down their clients' illusions and denials" ^[46] can the rehabilitation process begin.

Response

It is true that denial is detrimental to a criminal's treatment and reform, ^[47] especially for sex offenders. ^[48] But it is unclear that a coerced, one-time confession made in order to avoid the devastating consequences of a trial conviction really serves as an admission for purposes of contrition and long-term reform.

Defense attorneys often must convince delusional clients of the unlikely odds of success at trial. But that is very different from a duty to "provide moral as well as legal counsel, advising clients that it is right to admit their crime" ^[49] and should therefore try...