Bringing Moral Values into a Flawed Plea Bargaining System

Abstract

In a forthcoming article in the Cornell Law Review, I advocate abolishing Alford and nolo contendere pleas. These "guilty-but-not-guilty" pleas allow defendants to plead guilty without admitting guilt. Offenders who avoid admitting guilt remain in denial and are more likely to recidivate, and the justice system sends equivocal moral messages to victims and the public. In a response in the same issue, Professor Albert Alschuler supports these pleas as a lesser evil and criticizes my proposal as window-dressing for an irredeemably flawed plea bargaining system.

This Reply responds to Alschuler's criticisms. Part I points out that even in our flawed system, pleas carry meaning and send messages. The equivocal messages of Alford and nolo contendere pleas harm defendants, victims, and the public. Part II critiques Alschuler's exaggerated comparison of plea bargaining to coercion at gunpoint. Plea bargaining rests on lawful sentence differentials. Offenders who are in denial merit heavier sentences to deter, incapacitate likely recidivists, inflict retribution, teach lessons, and vindicate victims. Part III stresses the need to impede guilty pleas by innocent defendants and send a consistent message of concern for the innocent. Part IV notes that while some proposals for rehabilitation have involved unconscionable methods, my proposal uses the traditional jury trial as a morality play to teach lessons and send messages. It also notes that while defense counsel must represent their clients' interests, counsel can also serve a therapeutic role and offer moral advice. The Reply concludes that Professor Alschuler's loathing of plea bargaining stands in the way of realistic, incremental reform of a system that is here to stay. In the real world of guilty pleas, abolishing Alford and nolo contendere pleas is a realistic first step toward sending more honest, consistent moral messages to defendants, victims, and the public.

Keywords: Plea bargaining, guilty plea, Alford, nolo contendere, no contest, criminal procedure, Alschuler, therapeutic jurisprudence

JEL Classification: K14, K41