Friday, August 10, 2018
I just e-mailed this to the Criminal Law Professor listserv. I'd be interested to hear if readers have any thoughts on the issue:
On July 20, 2018, a judge on the Fairfax County Circuit Court in Virginia approved of what he labeled a "legal fiction plea," i.e., a plea where both the prosecution and defense agree that the defendant is not guilty of the crime charged:
In the case at hand, (1) the defendant possessed marijuana; (2) the defendant pleaded guilty to a crime with a two year mandatory minimum that involved possession of a Schedule I or II drug (marijuana is not a Schedule I or II drug); and (3) the prosecutor claimed that she could have gotten a conviction against the defendant for a marijuana-related crime with a five year mandatory minimum.
The judge first attempted an analogy to the concept of "nonexistent crime pleas," in which a defendant pleads guilty to a crime that doesn't exist (e.g., attempted manslaughter), but found this analogy untenable. But the judge then found that legal fiction pleas are defensible on the same grounds as Alford pleas. The judge also proposed a colloquy that judges should use before accepting legal fiction pleas:
“Do you realize you are pleading guilty to a crime that you factually did not commit and that, absent your guilty plea, you could not otherwise be convicted of it? Are you doing this because you do not want to take the risk that you will be found guilty beyond a reasonable doubt of a worse crime?”
I'm not sure that I buy the analogy to Alford pleas, where there is evidence that the defendant is guilty of the crime charged and the defendant acknowledges that evidence. But I'm also not sure whether there are grounds for holding legal fiction pleas unconstitutional or whether we should want them deemed unconstitutional. Does anyone have any thoughts on either constitutionality or desirability?