Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas

Abstract

Criminal procedure is preoccupied with procedural values such as efficiency, accuracy, informed choice, and procedural fairness. This emphasis comes at the expense of the values of criminal procedure's sibling, substantive criminal law. This article examines Alford and nolo contendere pleas as case studies in how an obsession with these procedural values blinds courts and scholars to substantive values. Defendants can in effect plead guilty by entering Alford and nolo contendere pleas, even if they protest their innocence or refuse to admit guilt. These pleas risk not only convicting innocent defendants, but also impeding the reform, education, and condemnation of guilty defendants. These pleas leave psychological denial mechanisms in place, especially in the case of sex offenders. And regardless of how defendants respond, these pleas muddy the denunciation of the crime instead of vindicating victims and the community's moral norms (such as honesty and responsibility). Pleas should be reserved for those who confess. Trials are morality plays designed to acquit innocent defendants and teach lessons to guilty defendants who will not confess, their victims, and the community. This approach leads to a rethinking of plea procedures and the roles of lawyers, judges, and trials in our criminal justice system.

Keywords: Criminal procedure, guilty plea, plea bargain, Alford, nolo contendere, no contest, procedural, substantive

JEL Classification: K14