EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 10, 2018

Are Legal Fiction Pleas Constitutional and/or Desirable?

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?


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This is a tough question, primarily due to the difficulty in getting legislatures to approve meaningful reform to criminal code. I think the proper approach would be that no guilty plea can be accepted without some independent factual basis other than a defendant’s willingness to admit guilt. While not exactly the same, it seems sufficiently similar to alleged confessions by defendants prior to trial: if you don’t have corroborating evidence besides an alleged confession, that should not be sufficient to render a conviction. The fact that a defendant may voluntarily chose to plead guilty to a crime he/she didn’t commit to avoid a trial and risk of worse doesn’t change the situation, in my view. By way of example, it is not uncommon for law enforcement personnel to have people with mental health issues confess to things they didn’t do (and, I’ll note, few of these people, if they had actually committed a crime, would be considered “insane” under the law to avoid criminal responsibility). Just because such a person confesses, we should allow prosecutors to accept a guilty plea just to get them off the street?

Rather, I think the prosecution (which has full discretion on what to charge) should be limited to accepting guilty pleas on lesser included offenses only. I think accepting a plea on an unrelated crime to which the defendant could not have committed avoids putting responsibility on the legislature to fix problems with the criminal code. Prosecutors can have considerable influence on driving criminal justice reform if they believe they are being forced to either dismiss charges entirely, or to charge a defendant with something that leaves little or no possibility of a plea bargain and is disproportionate to the circumstances of the case.

All that said, despite all the efforts for criminal justice reform, such as seeking to eliminate mandatory minimums for non-violent offenses, there has been little real progress on this issue (I had hoped we had turned the corner on this, but given the current administration and attorney general’s view on such matters, meaningful reform seems distant, at least at the federal level). This does place both defendants and prosecutors in a position where individual plea agreements, including those involving legal fiction pleas, may be the most flexible way to achieve the goal of a just outcome in many cases. My remaining concern is how a prosecutor, acting in bad faith, might abuse this discretion.

Posted by: FormerAgent | Aug 11, 2018 8:18:10 AM

Pleas outside of one given at trial (guilty of not guilty) are a problem in my opinion in a systemic, generalized sense. They have become a crutch on both sides that sometimes prevents innocent defendants from being exonerated later on in exchange for freedom from prison (e.g. The West Memphis Three and Kerry Max Cook) and also are used by prosecutors when they think they can’t win at trial, or want something more from a defendant in exchange for a lesser charge (e.g. Chester Holman III - although in this case it was a worthless offer since Chester knows nothing about the crime in question. His lawyer even offered he should give ANY name!). All of that is a part of how our system is broken. Using pleas as a pressure tactic to get a certain result regardless of veracity and avoid possible consequences after the fact is abhorrent. We need MORE consequences for prosecutors and police who use lies and pleas to pressure a suspect since that very often results in a lie that’s perpetuated at trial.

Posted by: Megan Pawlak | Aug 11, 2018 8:38:17 AM

Marijuana is a schedule I drug... not sure if that was a typo.

Schedule 1 but also legal in nine states but yeah... go figure

Posted by: Paul | Aug 11, 2018 1:29:45 PM

FormerAgent +1

Posted by: Paul | Aug 11, 2018 1:33:28 PM

I would never have guessed that stratagems--in which all parties agree that the defendant is not guilty of the crime being pled to—were legal or enforceable. And the must also be prone to misuse or worse. Do these strategies promoted by mandatory minimum legislation and or a decline of judicial sentencing discretion? Or is the practice mostly a time “honored” commonality of plea bargaining practices. That said. as a lay observer I mostly agree with Former Agent, especially as he finally agrees that these strategies, which certainly diminish respect for legal processes, may reduce inappropriate/unjust sentencing until judtice reform is achieved. But at what cost!

Posted by: Hal | Aug 12, 2018 12:12:05 PM

at the time the bill of rights was passed, a committal hearing or grand jury was required to establish probable cause before the case could go forwsrd, at least for felonies.by definition a fictitious plea has 0 probability. So its clear it fails probable cause so its unconstitutional. expediency is another matter.

Posted by: Eliot J CLingman | Aug 13, 2018 2:05:58 AM

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