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The divorce of procedure from substance manifests itself, for
example, in guilty plea procedures. (I use the terms substance
and substantive criminal law to distinguish the body of law that
defines crimes from the procedures used to enforce them. My focus is
not on the actus reus and mens rea elements of particular
crimes, but rather on the justifications for punishment that underlie
these crimes.) The standard defense of plea bargaining is that guilty
pleas save time and money, reduce uncertainty, and empower parties by
promoting freedom of choice.2 These values are procedural values,
focusing on the choices and costs parties face in court. The standard
critique of plea bargaining is that guilty pleas undercut proof beyond a
reasonable doubt, adversary hearings, and other procedural safeguards.
Once again, most of these objections rest on process values rather than
the values of the substantive criminal law. In this article, I do not
wade into the broader debate over the desirability of plea bargaining.
Instead, I take as a given that guilty pleas and plea bargaining will
persist for the foreseeable future. I use the plea-bargaining
literature to illustrate the foci of the proceduralists on both sides:
efficiency and autonomous choice versus accuracy and fairness.
This article challenges the proceduralist approach to criminal
procedure, using two subsets of pleas as case studies. First, the law
has long allowed defendants to plead nolo contendere. This means that
they refuse to admit guilt but accept punishment as if guilty. More
recently, the Supreme Court has approved so-called Alford pleas,
in which defendants plead guilty while simultaneously protesting their
innocence.3 Far from criticizing these practices, Judge Frank
Easterbrook and most other scholars praise these pleas as efficient,
constitutional means of resolving cases.4 Even Albert Alschuler, a
leading critic of plea bargaining generally, supports Alford
pleas. He views them as a lesser evil, a way to empower defendants
within a flawed system. As long as we have plea bargaining, he
maintains, innocent defendants should be free to use these pleas to
enter advantageous plea bargains without lying. And guilty defendants
who are in denial should be empowered to use these pleas instead of
being forced to stand trial.5 Once again, the terms of the debate are
proceduralist: efficiency and autonomy versus accuracy and fairness.
I dispute this conventional wisdom. Alford and nolo
contendere pleas, I contend, are unwise and should be abolished. These
procedures may be constitutional and efficient, but they undermine key
values served by admissions of guilt in open court. They undermine the
procedural values of accuracy and public confidence in accuracy and
fairness, by convicting innocent defendants and creating the perception
that innocent defendants are being pressured into pleading guilty. More
basically, they allow guilty defendants to avoid accepting
responsibility for their wrongs. Guilty defendants' refusals to admit
guilt impede their repentance, education, and reform, as well as healing
of victims. In addition, pleas without confessions muddy the criminal
law's moral message. Both kinds of pleas, but especially Alford
pleas, equivocate: one might call them guilty-but-not-guilty pleas. 6
They permit equivocation and ambiguity where clarity is essential. This
equivocation undermines denunciation of the defendant and vindication of
the victim and the community's moral norms. Sacrificing these
substantive goals of the criminal law is too high a price for an
efficient plea procedure. (There is little point in having procedures
that undercut substance, as the point of procedure is to serve
substance. Yet substantive values are, for the most part, not even on
the proceduralists' radar screens.)7 Thus, guilty pleas should be
reserved for those who confess.8 Jury trials should serve not only to
acquit innocent defendants, but also as morality plays to teach guilty
defendants and vindicate their victims and the community's moral norms.
The criminal law's norms include honesty and responsibility for one's
actions, so criminal procedure should not let guilty defendants
dishonestly dodge responsibility and the truth.
Consider this prominent example, which illustrates why unequivocal
guilty-plea confessions serve these values better than equivocal
Alford and nolo pleas: In the 1970's, Kathleen Soliah belonged
to the Symbionese Liberation Army, a radical San Francisco group
that kidnapped Patricia Hearst and tried to kill government officials.
Soliah fled to Minnesota and changed her name to Sara Jane Olson. For
years, she denied belonging to the Symbionese Liberation Army or taking
part in trying to bomb two police cars in 1975. Her lawyer expressed
interest in negotiating an Alford or nolo contendere plea, but
the judge and prosecutors said they would not countenance such a
plea.9 Here, Olson's judge exercised his discretion in refusing to accept
an Alford or nolo contendere plea, but judges elsewhere often
allow such pleas. See infra Part II.C. If a different judge had
had the case and allowed an Alford plea, the outcome would have
been very different, as the text goes on to explain. So, on October 31,
2001, Olson clearly and unequivocally pleaded guilty to attempting to
bomb the two cars. Immediately afterwards, however, Olson told
reporters that she had pleaded guilty to crimes of which she was
innocent. Prosecutors speculated that Olson had changed her story to
please her friends and family who had maintained her innocence.10
Olson's judge refused to countenance this express and instantaneous
contradiction, noting that "the integrity of the criminal justice system
is at stake."11 He called Olson in for another hearing and asked her
whether she wanted her plea to stand. At that hearing, the judge
confronted Olson and asked her, clearly and explicitly, if she was in
fact guilty. She twice said yes and reaffirmed her plea.12 Eight days
later, Olson again publicly disputed her guilt and moved to withdraw her
plea.13 At the next court hearing, the judge noted that Olson found it
psychologically very difficult to admit her crime to herself, her
family, and her supporters. Relying on her previous admissions and
pleas of guilt, the judge denied Olson's motion to withdraw her plea. 14
Only after this final ruling did Olson tremble with emotion and say she
was sorry for harming others.15
An Alford or nolo plea in this case would have undercut
important procedural and substantive values and norms. If Olson had
entered an Alford plea and never admitted guilt, it would have
been wrong to punish her despite her protestations of innocence without
an authoritative trial verdict. Instead of eventually apologizing, she
might well have persisted in her denials to herself and to others.
Continued denials would have led her friends and family and the public
to doubt the justice of the system. Punishment in these circumstances
would have undercut the norm of punishing only those known to be
blameworthy. In addition, consistent protestations of innocence would
have hindered closure for victims and the community. Here, in contrast,
Olson made clear admissions of guilt in court, so her later denials were
less credible. The public could more easily believe that she had
falsely protested her innocence to save face. The court was able to
justify its ruling by pointing to Olson's earlier admissions in open
court on the advice of counsel. Here, the court's action vindicated the
norm of not going back on one's word. And, after the judge confronted
her with her earlier admissions in court, Olson took the first steps
toward apology and reconciliation. In short, Olson' admissions of guilt
in open court were much firmer bases for conviction, repentance, and
closure than an Alford or nolo plea would have been.
The remainder of this article consists of four parts. Part I
summarizes the academic debate over plea bargaining, showing how it
embodies criminal procedure's emphasis on procedural values. Part II
reviews the doctrines that allow Alford and nolo contendere pleas
and the scholarly articles supporting these doctrines, most of which
support these pleas on proceduralist grounds. It also discusses how,
when, and why lawyers and clients use these pleas to avoid admissions of
guilt. In Part III, I object that these procedures risk convicting
innocent defendants and create the perception that innocent defendants
are being convicted. The analysis rests on the conventional procedural
values of accuracy and perceived accuracy, but it looks at them through
a moral lens. This kind of moral argument is almost unheard of in
proceduralist literature, a clue that procedure is adrift from the moral
moorings of the substantive criminal law.
Part IV moves beyond Part III's conventional procedural values to
substantive-criminal-law values. In particular, it critiques
Alford and nolo contendere pleas from a moral, didactic
perspective. Even if these pleas were perfectly accurate and were so
viewed, they would undercut reform, moral education, and vindication of
victims and the community's moral norms. Many guilty defendants are in
denial and find it hard to admit their crimes to others or even to
themselves. For them, Alford and nolo contendere pleas are easy
ways to remain in denial and avoid the painful processes of confession
or trial. Trials, though less efficient and swift, are better at
breaking through these denials and beginning the process of reform and
healing. And regardless of how defendants respond, convictions after
trial vindicate victims, express outrage, and drive home the
wrongfulness of crimes to defendants. In other words, the social
meaning of a jury verdict or guilty plea is much stronger and clearer
than an Alford or nolo plea's muddy message. Thus, legislatures
should abolish Alford and nolo contendere pleas. Until they do
so, prosecutors should oppose them and judges should exercise their
discretion to reject them. This article concludes with thoughts on
restructuring plea procedures and lawyers' and judges' roles to serve
the norms and values of the substantive criminal law.
I. THE PROCEDURALIST APPROACH TO PLEAS
The dominant approach to guilty pleas and plea bargaining focuses on
procedural values such as speed, cost, efficiency, autonomy, accuracy,
and certainty. This proceduralist focus largely ignores substantive
values such as reform, education, retribution, and vindication of
victims and social norms. My purpose here is not to take on all pleas
and bargains; I take these as given. Rather, my aim is to illustrate
how proceduralists' emphasis on procedural values comes at the expense
of substantive-criminal-law values. As Part II explains, this
proceduralist approach to pleas and bargains in general carries over to
Alford and nolo contendere pleas in particular.
The Supreme Court, for example, has endorsed guilty pleas because
they save time and money and confer advantages upon both prosecutors and
defendants.16 The Court's sole concern is to ensure procedural safeguards
such as adequate counsel, knowing and voluntary waivers of rights, and
sufficient factual bases.17 Similarly, the criminal bench and bar like
plea bargaining because it saves time and money, caps defendants'
sentences, expedites inevitable convictions, and disposes of large
caseloads.18 Of course, this generalization does not hold true of every
single lawyer. A few take criminal court appointments precisely because
they want trial experience. Others may prefer to work more hours so
that they can claim larger fees (when fees are computed on an hourly
basis). See United States v. Diaz, 802 F. Supp. 304, 312 (C.D.
Cal. 1992) (complaining about this practice of "fee churning"). These
approaches, however, are not the norm. Though pleas may incidentally
serve substantive values (such as quicker incapacitation or
rehabilitation), the emphasis is on saving time and money and allowing
the parties to choose.
Scholars who support plea bargaining likewise do so because pleas
promote procedural values such as speed, cost, efficiency, and free
choice. Judge Frank Easterbrook, one leading proponent, views criminal
justice as a market system that lets parties sell procedural rights in
exchange for advantageous concessions.19 According to Easterbrook, Robert
Scott, and William Stuntz, these sales of rights promote autonomy and
efficiency, reduce uncertainty, and save time and money.20 Scott and
Stuntz's concerns are primarily procedural ones: they recognize the need
for special procedural safeguards to prevent duress, mistake,
unconscionable pressures, and uninformed decisions.21 In other words,
they view the role of plea procedures as giving defendants the
information and freedom they need to further their own interests and
desires. One might call this the autonomy model: it takes defendants'
current desires as a given instead of seeking to reshape or trump those
desires.
Critics of plea bargaining focus on classic procedural values such as
accuracy and procedural fairness. Albert Alschuler's and Stephen
Schulhofer's objections are numerous, but most fall into two categories:
First, plea bargaining undermines structural safeguards by letting
prosecutors usurp the neutral judicial role, letting defense counsel cut
corners, and avoiding public trials.22 One might call this the
institutional or adversarial perspective. Second, bargaining undercuts
accuracy, equal treatment, fairness, and perceptions of fairness, by
subverting proof beyond a reasonable doubt and other rights, putting
innocent defendants at risk.23 One might call this the defendants'-rights
perspective.
To be sure, a few cases and commentators have suggested in passing
that plea bargaining might serve or hinder values of the substantive
criminal law. With the notable exception of one Alschuler article,
none of these discussions of substantive values occupies more than a few
pages.24 All in all, these sporadic references to deterrence,
incapacitation, retribution, and rehabilitation are peripheral to the
academic and judicial debate.
In short, the recent plea-bargaining debate illustrates the
proceduralist methodology that pervades criminal procedure. Most
recent considerations of plea bargaining stand or fall on procedural
values: the autonomy, accuracy, efficiency, fairness, and perceived
fairness of the process.25 They pay little heed to rehabilitation,
reform, education, and other substantive-criminal-law values. As Part
II explains, this proceduralist approach to pleas in general
carries over to Alford and nolo contendere pleas in
particular.
II. THE STATUS QUO ON ALFORD AND NOLO
The proceduralist approach to pleas and bargains pervades discussions
of Alford and nolo contendere pleas. Recall that these pleas are
the functional equivalent of guilty pleas, except that defendants do not
admit guilt and (in nolo pleas) are not estopped by their pleas in later
litigation. Most courts and commentators support these pleas, stressing
their efficiency and speed and the desirability of letting defendants
choose to protect their privacy and dignity. The few critics who
discuss these pleas in passing generally emphasize the danger that
innocent defendants may falsely plead guilty. This emphasis on choice,
efficiency, and accuracy exemplifies the classic proceduralist
justifications for plea bargains discussed in Part I. Section A
summarizes the law governing these types of pleas. Section B surveys
the generally favorable academic commentary on these pleas. Section C
looks at how often defendants use these pleas, in what kinds of cases,
and why. It also contrasts academics' generally favorable reaction to
these pleas with notes of skepticism expressed by judges and prosecutors
about these pleas.
A. The Law of Nolo Contendere and Alford Pleas
At common law, a defendant could ask the court to impose a merciful
sentence without confessing guilt and without estopping himself from
later pleading not guilty on the same facts.26 In modern times, this
became the formal plea of nolo contendere, which admits guilt for
purposes of the present case but creates no estoppel.27 Today, the
Federal Rules of Criminal Procedure allow defendants to plead nolo
contendere with the permission of the court.28 Most states likewise allow
nolo contendere pleas (sometimes called no contest), though in many
states these pleas require the court's consent.29
Defendants now have another way to plead guilty without admitting
guilt: the Alford plea. Henry Alford was charged with
first-degree murder, a capital crime, and faced strong evidence of
guilt. Rather than going to trial, he pleaded guilty to second-degree
murder, a non-capital crime, while protesting his innocence.30 In
North Carolina v. Alford, the Supreme Court held that defendants
may knowingly and voluntarily plead guilty even while protesting their
innocence. The Court noted that judges must find a sufficient factual
basis before accepting these pleas, but the State provided one here. It
put on two incriminating witnesses, who testified that Alford had left
his house with a gun saying he would kill the victim and had returned
saying he had killed the victim. The Court also noted that Alford's
plea was like a plea of nolo contendere. If defendants can plead nolo
contendere while refusing to admit guilt, the Court saw no reason to bar
Alford from pleading guilty while protesting his innocence. The Court
also suggested that Alford's decision to plead was a reasonable choice
to cap his maximum sentence and that courts should honor this choice.
While these pleas are not forbidden by the Constitution, neither are
they required. Because defendants have no right to plead guilty, judges
may refuse to accept Alford pleas, or states may forbid them by
statute or rule.31 Most states have followed suit and permitted
Alford pleas (sometimes called best-interests pleas).32
Note that there are two main differences between Alford and
nolo contendere pleas: First, nolo contendere pleas avoid estoppel in
later civil litigation, while Alford pleas do not. Second,
defendants who plead nolo contendere refuse to admit guilt, while
Alford pleas involve affirmative protestations of innocence. By
and large, however, Alford is simply a new extension of the
age-old nolo plea.33 The timing of this expansion of the law three
decades ago may be no coincidence. Alford fit well with the
modern liberal emphasis on freedom of contract, autonomy, and informed
choice.
B. The Scholarly Literature
Those commentators who have considered Alford and nolo
contendere pleas have endorsed them for varying reasons. Probably the
most common argument in favor of them is that they are a tool for
resolving cases efficiently and cheaply.34 Judge Frank Easterbrook and
others support these pleas because they further the interests of
defendants (even innocent defendants) who want to avoid worse outcomes
at trial.35 In other words, these pleas promote autonomy: they give
defendants another, easier choice, one that may benefit their interests.
Others state that these pleas protect defendants' dignity, privacy, and
autonomy by obviating humiliating public admissions of guilt.36 Another
argument is that nolo pleas protect "the respectable citizen" who is
"technically guilty" but does not deserve civil disabilities (such as
losing the rights to vote and hold office).37 And some commentators claim
that Alford pleas foster openness between lawyer and client. If
there were no Alford pleas, they claim, innocent defendants would
lie about their guilt to their lawyers in order to reap the benefits of
pleading guilty.38
Even one prominent critic of plea bargaining endorses Alford
pleas. Albert Alschuler, as mentioned above, would prefer to abolish
plea bargaining entirely. But given that plea bargaining exists,
Alschuler reluctantly endorses Alford pleas.39 Many defendants are
unwilling to admit guilt because "`psychological obstacles,'" egos, and
shame get in the way.40 Yet it is in their interests to plead guilty.
For these defendants, the Alford plea is a necessary
psychological "crutch."41 Even innocent defendants, he argues, should be
able to choose Alford pleas if they decide that pleading is in
their best interests.42 He notes that even after Alford, many
defense lawyers and judges refuse to permit Alford pleas.43 He
claims that if lawyers and judges insist on admissions of guilt,
defendants will lie to their lawyers and the court, and defense counsel
will pressure clients to confess or lie. Though he finds Alford
pleas distasteful and offensive, he nonetheless supports them as more
honest and fair and less hypocritical. They keep defendants from
having to lie, keep defense lawyers from coercing confessions, and avoid
forcing defendants into disadvantageous trials.44
The few critics of Alford pleas rest their criticisms
primarily on proceduralist grounds. John Langbein and others argue that
Alford pleas undercut proof beyond a reasonable doubt and risk
allowing innocent defendants to plead guilty.45 Another proceduralist
objection is that Alford pleas risk being involuntary, as
reluctant defendants are likely caving in to coercive pressures to
plead.4
There is, however, a different criticism in the writings of David
Wexler and Bruce Winick. Wexler and Winick suggest that Alford
and nolo pleas to sex offenses are undesirable because they allow
offenders to remain in denial. Instead, judges should refuse to accept
these pleas, which would in turn force defense lawyers to confront their
clients with the facts and break down their illusions and denials.
Wexler and Winick focus on rehabilitation of offenders, but they do not
discuss other substantive values nor the effect of these pleas on
victims or the public.47
C. Who Uses These Pleas, When, and Why?
The only statistics on nolo contendere pleas come from federal cases.
In the year ending September 30, 2000, 0.5% of all federal defendants
pleaded nolo contendere.48 These pleas tended to cluster in certain
categories of cases. For example, 6% of those charged with drunk
driving and other traffic offenses pleaded nolo contendere.49 Nolo
contendere pleas were also more likely to be used for white-collar
crimes such as fraud, counterfeiting, food and drug, and environmental
laws.50 Nolo contendere pleas were used in about 5% of federal sex
offenses.51 Anecdotal evidence suggests that nolo contendere pleas are
popular in antitrust cases.52
Of course, federal numbers risk being unrepresentative because most
cases and types of crimes are handled primarily at the state level.
Because no state statistics are available, I conducted a series of
Westlaw searches for cases involving nolo contendere pleas. This survey
revealed that nolo contendere pleas are even more common than these
federal numbers suggest. This survey found more than 18,500 cases
involving nolo contendere pleas. Of the relevant search results in a
random sample, 26% involved drug crimes, 25% involved property crimes
(including embezzlements), 23% involved violent crimes, 21% involved sex
crimes, and 14% involved white-collar crimes.53 Note that the figures in
the text add up to more than 100% because some cases involved nolo
contendere pleas to multiple types of charges.
Since the Court decided Alford, Alford pleas have
become quite common, especially in sex-offense cases. There are no
statistics on Alford pleas, so I conducted a series of Westlaw
searches. These searches found almost 2500 cases that involved
Alford pleas. Of the relevant search results in a random sample,
27% of Alford pleas involved sex offenses, 27% involved other
violent offenses, and 12% involved white-collar offenses.54
To get a sense of when and why lawyers and defendants use these
pleas, I interviewed thirty-four veteran prosecutors, public and private
defense lawyers, and judges. I used Westlaw searches to pick states
that appear to use Alford or nolo pleas frequently (Louisiana,
Michigan, Missouri, Pennsylvania, and Ohio). I contrasted these states
with states that forbid both kinds of pleas (Indiana and New Jersey). I
followed no scientific method, and of course my sample size was far too
small to generate statistically significant results. My methodology was
journalistic and impressionistic; it replicated on a much smaller scale
the surveys on which Albert Alschuler built his famous articles on plea
bargaining.55
According to the defense lawyers interviewed, many if not most
defendants are initially reluctant to admit guilt. Defense counsel work
with defendants, confront them with the evidence, and bring most around
to where they will admit guilt. A small minority of clients remain
unwilling to admit guilt even when it would be in their interests to do
so. Some go to trial, but others enter Alford or nolo pleas.
Lawyers estimated that a few percent of cases were resolved by one of
these pleas.
When I asked defense counsel, prosecutors, and judges why they
thought these defendants would not admit guilt, their answers tended to
converge. The number one barrier to a classic guilty plea is fear of
embarrassment and shame before a defendant's family, friends, and
others. Many of these defendants can admit guilt to their lawyers but
are too ashamed to do so in front of their family. Defense lawyers work
hard to convince families that their children should plead, and do all
they can to reduce the shame of pleading. One defense lawyer even
schedules pleas for late Friday afternoons and misleads clients'
families about plea dates, so that his clients can plead more easily in
empty courtrooms. Even these shame-reducing measures, however, are not
enough for some defendants.
After shame, the reason cited most frequently is psychological
denial. Some defendants are in denial and refuse to admit guilt to
themselves. Some lawyers mentioned collateral consequences: An
admission of guilt may hurt in a later child-custody battle. Admissions
may also scare off prospective employers, whereas Alford and nolo
contendere pleas make it easier to reassure employers by denying guilt.
And nolo pleas avert estoppel in collateral civil litigation (especially
in automobile accidents). Also, defendants may have been intoxicated
and unable to remember the facts. Several lawyers opined, however, that
most claims of lost memory or fear of collateral consequences are fig
leaves to justify these pleas.56 The real, hidden reason is more often
feelings of shame or guilt. Almost all interviewees agreed that
completely innocent defendants use these pleas infrequently: their
descriptions ranged from "occasionally" to "extremely uncommon" to
"[in]significant" to "very rare."57 For example, one long-time public
defender estimated that he had seen no more than five to ten innocent
defendants use these pleas over the last sixteen years. A few defense
lawyers did suggest that some defendants enter Alford or nolo
pleas to crimes more serious than the ones they committed.
Opinions differed on the kinds of cases in which defendants use these
pleas. A few interviewees said that they could not generalize, as they
use Alford and nolo contendere pleas in a variety of cases. But
most thought certain kinds of cases were most likely to involve
Alford and nolo pleas. By far the largest category of cases is
sex offenses. Sex offenders are often in denial and fear shame,
rejection by families and girlfriends, and violence by other prisoners. 58
A second category is crimes against children or the elderly, especially
sex crimes. These include child molestation, incest, and rape, but also
non-sexual child abuse and neglect. Others mentioned heinous murders,
domestic assaults, batteries, crimes of dishonesty, drunk driving,
drugs, and auto accidents (to avoid estoppel in tort suits).
Every defense lawyer whom I interviewed approved of these pleas.
They use them infrequently, as a last resort, a tool for difficult
defendants who simply will not admit guilt. Defense lawyers reported
that most but not all prosecutors are amenable to Alford and nolo
pleas, but that judges vary widely and many will not accept them. (They
reported that Alford and nolo pleas require judges' consent, as
well as prosecutors' consent if the pleas are part of plea bargains.)
In other words, prosecutors and judges are more ambivalent. On the one
hand, many see these pleas as efficient ways to dispose of cases and
reduce staggering dockets. Reducing dockets is, for many, the top
priority. On the other hand, they fear that pleas without admissions of
guilt are more vulnerable to appeal or collateral attack, which
undercuts finality. Some prosecutors and especially judges dislike the
message that these pleas send. Some judges view criminal justice as a
morality play in which defendants should confess and apologize, so that
victims see justice done and begin to heal. Pleas without confessions,
on this view, leave victims frustrated and defendants defiant and
resistant to treatment. Two defense lawyers suggested that victims or
their families sometimes press prosecutors to oppose Alford
pleas, because they want admissions of guilt and apologies. And some
prosecutors and judges worry that pleas by defendants who deny or
equivocate undermine public confidence. Defendants can deny guilt out
of court (the Sara Jane Olson maneuver), leading family, friends, and
the public to suspect injustice. As one jurist put it, unequivocal
pleas and trials "suppor[t] public trust in the institutions" by
impeding later denials.59 In short, prosecutors and judges sometimes
oppose Alford and nolo pleas on both consequentialist and
other moral grounds.
What happens when the law forbids Alford and nolo pleas, or
judges refuse to allow them, or prosecutors refuse to enter plea
bargains without admissions of guilt? Though some of these cases go to
trial, many defendants come around and eventually admit guilt (as Sara
Jane Olson did). Judges and counsel in states that forbid these pleas
agreed on this point: A majority if not most defendants who deny guilt
at plea hearings, when required to admit guilt or go to trial, in the
end admit guilt.60 Statistics, though not definitive, suggest that
rejection of these pleas does not create a huge number of trials. A
National Center for State Courts report collected criminal
case-processing statistics for 22 states in the year 2000. It found
that on average 3.3% of cases were resolved at trial, 57.2% were
resolved by pleas, 23.3% were resolved by dismissals or nolle
prosequis, and 16.2% had other unspecified dispositions. The two
jurisdictions that forbid Alford and nolo contendere pleas had
comparable figures, with trial rates only slightly higher than average.
In New Jersey, 3.9% of criminal cases went to trial, 68.4% pleaded,
15.2% were dismissed or nolled, and 12.4% had other dispositions.
In Indiana, 4.3% of criminal cases went to trial, 57.3% pleaded, 35.5%
were dismissed or nolled, and 3.0% had other dispositions. Nat'l
Center for State Courts, Examining the Work of State Courts, 2001, at 63
(2001). One judge estimated that while he has balked at no-contest
pleas for ten years, only one or two defendants have gone to trial
rather than admit guilt. For example, when a judge refused to let two
prostitution defendants plead nolo contendere, they went down the hall,
came back a few minutes later, and pleaded guilty. In another case,
when a prostitute's customer refused to admit guilt and the judge
refused to accept his guilty plea, the defense lawyer conferred with his
client and he later admitted guilt.
Other evidence corroborates my finding that prosecutors and
judges are deeply ambivalent about Alford and nolo contendere
pleas. For example, even though federal law permits Alford
pleas, U.S. Department of Justice policy discourages them. Because the
public may not understand how a defendant who claims innocence can plead
guilty, the public may suspect prosecutorial overreaching. Thus,
federal prosecutors may not agree to Alford pleas absent approval
by the main Department of Justice in Washington. If defendants try to
enter Alford pleas without prosecutorial approval to less than
all counts, federal prosecutors must discourage them by refusing to
dismiss the remaining counts.61 Indeed, the Antitrust and Tax Divisions
go further and oppose all Alford and nolo contendere pleas. The
Tax Division's explanation is that such pleas undercut collateral
estoppel and mislead the public into thinking that the Government's case
is weak.62 Perhaps these central policies are high-level efforts to send
public messages and enforce consistency by riding herd on line
prosecutors. Line prosecutors are tempted to lighten their own
workloads by using every tool available to secure pleas, because the
long-term impact of any one plea is slight. In contrast, high-level
policymakers are more likely to consider systemic, long-term
ramifications. Other prosecutors likewise disfavor Alford and
nolo pleas.63 Defendants may nonetheless be able to enter Alford
and nolo pleas over the Government's objections.64
Several state courts have followed suit and forbidden Alford
pleas. The Supreme Court of Indiana has held that judges may not accept
guilty pleas accompanied by protestations of innocence.65 The court
suggested that Alford pleas risk being unintelligent,
involuntary, and inaccurate.66 Another reason for the Indiana rule is
that Alford pleas undercut public respect for the justice system.67
Michigan and New Jersey courts agree and also forbid Alford
pleas.68 Arizona permits Alford pleas but disfavors them, for fear
that innocent defendants will plead guilty or that the public will lose
confidence in the justice system.69 Individual judges in other states
disfavor Alford pleas as well.70 And Alschuler found (contrary to
my finding) that many defense lawyers refuse to allow clients to plead
guilty if they claim innocence.71
This reluctance to accept speedy Alford and nolo contendere
pleas suggests that they are deeply troubling. Though these pleas are
efficient, they disregard other important values--both procedural values
(such as accuracy) and substantive values (such as reform, education,
and expressive condemnation). Parts III and IV develop these arguments
further.
III. ACCURACY AND PERCEIVED ACCURACY
Efficiency is a value in criminal procedure, but it is not the only
nor even the most important value. More important is the accuracy of
the system's results, and in particular its accuracy in freeing innocent
defendants. Yet while our system goes to great lengths to protect
innocent defendants at trial, it perversely makes it too easy for them
to plead guilty by allowing Alford and nolo contendere pleas.
Innocent defendants whose scruples might otherwise prevent them from
pleading guilty can use these pleas to do so more easily. Even if
innocent defendants want to plead guilty, the law should not go out of
its way to promote these unjust results.
This Part argues that Alford and nolo pleas disserve the
conventional procedural values of accuracy and perceived accuracy.
Section A contends that allowing innocent defendants to plead is wrong
and rebuts the contrary arguments of Alschuler, Easterbrook, and others.
Innocent defendants who plead are often overestimating their likelihood
of conviction at trial, so the law should encourage them to persevere
and win acquittals. Moreover, Easterbrook's utilitarianism ignores the
moral imperative to avoid knowingly facilitating injustice. (This moral
reasoning goes beyond the narrow utilitarianism found in most
proceduralist literature.) Section B considers how Alford
and nolo contendere pleas undermine public perceptions of the justice
system's accuracy and fairness. Part IV then goes beyond Part III's
proceduralist approach, explaining how these pleas violate
important values of the substantive criminal law.
A. Convicting Innocent Defendants Is Wrong
It should go without saying that convicting innocent defendants is
wrong. Thus, the law should hinder these convictions instead of
facilitating them through Alford and nolo contendere pleas.
Nonetheless, Easterbrook, Alschuler, and others favor Alford
and nolo pleas in part because they enable innocent defendants to plead
guilty without lying.72 Some of these commentators, notably
Easterbrook, assume that increasing the range and ease of choices
is always good. Increasing the ease of convicting innocent defendants
is a vice, however, not a virtue. Innocent defendants who would
otherwise balk at admitting guilt favor Alford and nolo
contendere pleas as easier ways out. The law should not afford these
easier ways out, in the hopes that innocent defendants will balk at
admitting guilt and persevere to gain acquittals or dismissals.73 Even if
innocent defendants think that pleading guilty is in their interests,
the law should make it harder for them to do so. Doing so would
minimize both actual and perceived injustices.
Easterbrook responds that innocent defendants will plead guilty only
when the expected sentence at trial, discounted by the probability of
acquittal, is greater than the plea terms offered. Defendants who are
advised by competent counsel and usually have private knowledge of the
facts will be in a good position to assess their own chances at trial.
Trials are imperfect and sometimes convict innocent defendants. So, the
argument goes, innocent defendants benefit by having the option of
pleading guilty whenever they might be convicted at trial.74 As Alschuler
puts it, "both courts and defense attorneys should recognize a `right'
of the innocent to plead guilty. So long as a defendant has something
to gain by entering a plea agreement, it is unfair to deny him the
choice."75
Easterbrook's line of argument mistakenly treats innocent defendants
as fully informed, autonomous rational actors. Many defendants receive
poor advice from overburdened appointed counsel of varying quality whose
caseloads and incentives lead them to press clients to plead guilty.76 Poor
counsel would also hinder these same defendants at trial. But the
financial incentives to encourage pleas would not affect trials as much
because of the large fixed costs involved, and lawyers' desire to
preserve their reputations by prevailing at trial would counteract
financial incentives to cut corners. Schulhofer, Criminal
Justice Discretion as a Regulatory System, supra, at 56-59.
In addition, criminal discovery is not nearly as extensive as civil
discovery, hampering defendants' accurate assessments of their prospects
at trial.77 And innocent defendants may plead guilty because of pressure
or misinformation. As a result, their pleas may not be fully
intelligent and voluntary.78 Thus, innocent defendants who want to enter
Alford or nolo pleas are likely overestimating their risk of
conviction at trial.79 Those poor enough to qualify for overburdened
appointed counsel and those of low intelligence are most likely to make
these mistakes. The result may well be troubling disparities based on
wealth, mental capacity, and education. The law should
instead encourage these innocent defendants to persevere and win
acquittals.80 So a paternalistic concern for poorly educated and misled
innocent defendants might justify abolishing or severely restricting
Alford and nolo pleas.
There is also a deeper moral objection to Easterbrook's purely
utilitarian argument. One's moral intuition should recoil at the
thought of allowing, indeed facilitating, the conviction of innocent
defendants. It is all the more troubling to trumpet this fact as an
advantage of Alford and nolo pleas. Not all of ethics is
reducible to a consequentialist calculus. There is something deeply
troubling about knowingly facilitating injustice, something worse than
allowing it to happen inadvertently. No promise of good consequences
can erase the repugnance of promoting an evil in the hope of averting a
worse evil. To use Dostoyevsky's example, no hope of good
consequences can justify society's murdering a single innocent child. 81
Kant would agree that society cannot knowingly facilitate the punishment
of those who do not deserve it, even if they agree to it.82 Second, society
must not consciously promote guilty and nolo contendere pleas by
innocent defendants. Unless one "has committed a crime" and been
found "guilty and punishable," no amount of benefits can justify
punishment. Immanuel Kant, The Philosophy of Law *195-97 (W. Hastie
trans. 1887) (corresponding to pages *331-*332 in The Metaphysics of
Morals). Even though the justice system may accidentally punish some
innocent defendants, it has no right to consciously facilitate this
injustice.
It is doubtful that our criminal justice system charges and
prosecutes large numbers of innocent defendants. There are doubtless
some, however,83 and they may be tempted to use Alford and nolo
pleas instead of going to trial. Though it is impossible to know how
many innocent defendants are at stake, many of the lawyers whom I
interviewed thought that innocent defendants occasionally used these
pleas. And the law should take pains to reduce the chances of
convicting even these few innocent defendants.
One can rarely prove directly that a particular defendant who pleaded
guilty or nolo contendere was in fact innocent. But there is troubling
anecdotal evidence that innocent defendants do use these pleas. For
example, in the notorious Wenatchee case, twelve defendants entered
Alford or nolo contendere pleas to child molestation-related
charges. Two of them later adduced evidence that a complaining child
had never been abused but had falsely incriminated them because of
coercive police interrogation. After the child recanted, these two
defendants were eventually allowed to withdraw their pleas.84 Another case
in which an innocent man entered an Alford plea occurred in
Virginia. Abusive interrogation pressured a developmentally disabled
man, David Vasquez, to confess and enter an Alford plea to a
murder. Investigators later concluded that the crime fit the modus
operandi and pattern of another man, a serial killer, and persuaded
the Governor to pardon Vasquez. Brooke A. Masters, Lucky Release
from a Life Behind Bars: Va. Man Served 5 Years-Under Plea
Agreement-Before Real Murderer Was Found, Wash. Post, Apr. 28, 2000,
at A23. Extensive media coverage later suggested that the police
investigator had led children to fabricate these and thousands of other
allegations of sexual abuse.85
One cannot know how many similar cases, perhaps less sensational
or on a smaller scale, never come to light, veiled by defendants'
waivers of appellate rights. Even if only a few innocent defendants
enter Alford or nolo pleas, these injustices are grave and deeply
troubling.
B. Public Perceptions of the Justice System
The justice system cannot consider only what the parties want, but
must also heed public perceptions of accuracy and fairness. As
Schulhofer points out, justice and punishment are classic public
goods. Allowing innocent defendants to plead guilty imposes "serious
negative externalities" on society.86 Society has a strong interest in
ensuring not only that criminal convictions are in fact just, but also
that they are perceived as just. Though one lawyer whom I interviewed
cynically suggested that criminal justice is not and should not be about
the truth, the public cares a great deal about truth.
Alschuler, however, turns this concern for public perceptions on its
head. He praises Alford pleas as an "hones[t]" way to avoid
"hypocrisy" instead of tempting innocent defendants to confess falsely.87
But Alschuler's own evidence shows that many lawyers and judges are
deeply uncomfortable with this prospect.88 The public may be all the more
uncomfortable, as Alschuler recognizes when he characterizes refusals to
accept Alford pleas as a "public relations measure."89 Alschuler
even hints at a revolutionary goal of fomenting the overthrow of plea
bargaining by exposing its internal contradictions.90 The much more
likely outcome, however, is maintenance of the status quo coupled with
growing public cynicism about the entire system. Alford and nolo
contendere pleas send mixed messages, which may breed public doubt,
uncertainty, and lack of respect. Far from being honest, they let
guilty defendants cloak their pleas in dishonesty. Recall that point
from my interviews: most defendants who enter Alford and nolo
pleas are guilty, so their protestations of innocence are false. Recall
judges' and prosecutors' fear that defendants will enter Alford
or nolo pleas and protest their innocence, undermining public trust in
the justice system. Think of how the Sara Jane Olson case would have
been perceived if Olson had pleaded without ever admitting guilt. In
contrast, jury verdicts and unequivocal guilty pleas suppress residual
doubts and promote public confidence.91
The justice system should forestall public cynicism by forbidding
practices that openly promote injustice or even doubts about guilt. As
the Supreme Court noted in Winship, the law goes to great lengths
to minimize the risk of erroneous convictions. The perception of
accuracy is needed "to command the respect and confidence of the
community . . . . It is critical that the moral force of the criminal
law not be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned."92 In other words, the system
must not only be accurate to protect innocent defendants from injustice,
but must also be seen as accurate and fair to secure the community's
confidence.
Public confidence and faith in the justice system are essential to
the law's democratic legitimacy, moral force, and popular obedience.93
When citizens learn that defendants are pleading and being punished
while refusing to admit guilt or even protesting their innocence, they
may well suspect coercion and injustice.94 These citizens may conclude
that our system does not care enough about separating guilty from
innocent defendants. Some may believe that the defendant is guilty but
refuses to admit it, while others may doubt guilt and blame the system's
callousness. A system less obsessed with efficiency would slow down and
take a closer look at these cases, and the inefficient safeguards of
trial might catch some of these injustices. But our obsession with
efficiency and autonomy has led us to downplay the importance of justice
and the public's perception of justice. This may partially explain why
only one-third of the American public expresses confidence in the
criminal justice system and why two-thirds think plea bargaining is a
problem.95
Because there are no published poll data on Alford and nolo
contendere pleas, I conducted my own poll of law students. 62% of
respondents doubted the fairness of hypothetical nolo contendere
convictions, and 78% doubted the fairness of hypothetical Alford
convictions. In addition, nolo contendere pleas led 27% of respondents
to have less faith in the criminal justice system. Alford pleas
led 51% to have less faith in the justice system. In short, a majority
of respondents were troubled by these pleas.96
Though this small poll is not definitive, it is highly suggestive.
While proving a causal link between particular pleas and the justice
system's reputation is usually impossible, prudence counsels erring on
the side of caution. A serious concern for safeguarding innocent
defendants, justice, and the popular perception of justice would support
abolishing or at least severely restricting Alford and nolo
pleas.
IV. VALUES OF THE SUBSTANTIVE CRIMINAL LAW
The preceding part opposed Alford and nolo contendere pleas
based on their actual and perceived inaccuracy and unfairness. Though
this conclusion is at odds with the scholarly literature supporting
these pleas, this analysis rested on conventional procedural
values. (It also added a moral dimension rarely seen in procedural
literature, a clue that criminal procedure is detached from the moral
moorings of the substantive criminal law). But what if we could ensure
that defendants entered these pleas freely, without coercion or
misunderstanding? What if we could make Alford and nolo
contendere pleas perfectly accurate, say by requiring a stringent
factual basis? And what if we publicized these factual bases enough to
dispel popular concerns that innocent defendants are being convicted?
Would we then want to let guilty defendants enter Alford and nolo
contendere pleas, as an efficient, accurate, fair alternative to
trial?
No. Even so, there would still be strong reasons to forbid these
pleas. Even if these pleas were perfectly accurate and were seen as
accurate and fair, they would undercut important values and norms of the
substantive criminal law. Alford and nolo contendere pleas
interfere with contrition, education, healing, and reform of defendants.
And regardless of whether defendants learn these lessons,
guilty-but-not-guilty pleas send muddied messages that obstruct
catharsis and vindication of social norms and victims. These pleas
undercut the norms of honesty and responsibility for one's actions by
letting guilty defendants dishonestly dodge responsibility. Procedural
efficiency does not justify undercutting these important substantive
values, because substance is the very raison d'etre of procedure.
Though substantive values need not trump procedural values, they should
at least carry significant weight. Procedures that undercut these
significant substantive values in effect cannibalize the law.97
Part IV's overt examination of the moral messages sent by criminal
procedures will make some readers uncomfortable. Other readers will
disagree with my weighing of the moral pros and cons, if they put more
value on defendants' privacy and less on reform, victim vindication, and
expression of community condemnation. Criminal-justice discourse often
avoids these objections by shying away from contentious moral
disagreements. It seems easier to avoid morality and achieve consensus
on seemingly apolitical issues of efficiency, accuracy, deterrence, and
the like.98 Nonetheless, moral questions lie at the root of criminal
procedure. In practice, people's judgments about criminal justice hinge
not on technical issues, but on the social meanings and moral judgments
expressed by various practices.99 These social, moral dimensions are
central to evaluating criminal procedures; ignoring them will not make
them go away.
Section A reviews the justifications for punishment that undergird
the substantive criminal law. In addition to deterring and
incapacitating, the criminal law also aspires to reform, educate,
vindicate victims, produce catharsis, and express condemnation. Section
A also reviews the basic moral norms embodied in the criminal law, such
as honesty and responsibility for one's actions. Section B then
explores the psychological denial mechanisms of offenders (especially
sex offenders) who refuse to admit guilt. It also discusses the
therapeutic value of inducing confessions by encouraging and confronting
defendants who refuse to admit guilt. Section C contends that guilty
pleas should be reserved for defendants who confess, because by
confessing they take the first steps toward repentance and reform. It
also explains why defendants who refuse to admit guilt should have to
undergo trials. Trials may break through denial mechanisms and teach
and heal offenders and victims. Even if defiant defendants refuse to
repent, trials serve as morality plays that condemn crimes and vindicate
victims and the community's norms. Conversely, trials vindicate
innocent defendants, freeing them from the community's blame and
censure.
A. Justifications for Punishment and the Law's Moral
Norms
One influential strand of criminal law and scholarship takes a
narrow, utilitarian view of the pains and pleasures associated with
crimes. According to Jeremy Bentham, criminals commit crimes because
crimes benefit them. To counteract these benefits, the criminal law
incapacitates and deters by making the punishment attached to crimes
sufficiently unpleasant and restrictive.100
The criminal law does operate in part on this simple level of
pleasure and pain. But it serves other, more morally laden functions as
well. As Kant explained, punishment "ought to be done in order that
every one may realize the desert of his deeds."101 The word realize
has two relevant meanings, and Kant appears to mean both of them.
First, Kant meant that offenders realize punishments the way that
entrepreneurs realize profits: they reap what they have sown, the
retribution that they have earned.102 Second, Kant also suggested that
punishment makes us realize in our minds and hearts the wrongfulness of
crimes. Punishment is a powerful "symbol" of moral blameworthiness that
is "medicinal for the criminal and [sets] an example for others."103 On
this view, punishment reforms and deters in part by educating the
offender and others.
The late Jean Hampton also espoused the theory of punishment as moral
education. Punishment teaches the offender that the crime is forbidden
because it is morally and legally wrong.104 It is a strong tool for
penetrating callous hearts. In C.S. Lewis's memorable phrase, it
shatters our illusions and "plants the flag of truth within the fortress
of a rebel soul."105 It seeks to teach by triggering and developing the
offender's moral sense of guilt. It tries to induce contrition and
repentance, so that the offender will self-consciously repudiate his
past wrongful act and feel guilty enough to avoid committing it again. 106
As R.A. Duff puts it, punishment tries "to bring the criminal to
understand the nature and implications of her crime; to repent that
crime and thus, by willing her own punishment as a penance which
can expiate her crime, to reconcile herself with the Right and with her
community."107 In a similar vein, Stephen Garvey sees punishment as a
secular version of atonement, a way of reconciling offenders with
victims and reintegrating them back into the community.108 Before
offenders can atone and be reconciled, they must first accept
responsibility, learn their lessons, and resolve to mend their ways. 109
True, some offenders will learn these lessons only in part, and some not
at all. Nonetheless, the law respects their moral agency by at least
trying to teach them the errors of their ways. Not every offender heeds
this lesson, but the hope is that punishment increases the chances that
offenders will repent and change their ways. This idea of repentance
and atonement is all too often overlooked in discussions of the
justifications of punishment.
Regardless of whether offenders learn their lessons and repent,
punishment has moral value for others. Victims, for example, are
demeaned by the crimes they suffer, which disregard and trample on their
moral worth. Punishing offenders vindicates the worth of their victims,
humbling wrongdoers by asserting that they are not entitled to abuse
others as they like.110 It thus serves a cathartic function for victims
and brings them closure. If wrongdoers confess-or, better yet, repent
and apologize-victims can more readily forgive, surrender
resentments, and find peace.111 Some might understand the catharsis
referred to in the text as simply satisfying the raw primal urge to
punish, which arguably is an illegitimate goal of punishment. One can,
however, instead understand it as in part a nobler satisfaction at
seeing the law do justice and vindicate rules of right and wrong.
This symbolic moral significance of punishment extends beyond the
victim to society at large. Punishment expresses condemnation,
denouncing the wrong and reaffirming society's moral teaching of what is
right.112 As James Fitzjames Stephen put it, "the sentence of the law is
to the moral sentiment of the public in relation to any offence what a
seal is to hot wax. It converts into a permanent final judgment what
might otherwise be a transient sentiment."113 In the process, our criminal
procedures allow the community to vent its outrage, satisfying the
public's sense of justice by bringing catharsis and closure.114
Though the literature often speaks of vindicating the community's
norms, it rarely spells out what those moral norms are. Here is a
sampling of the most prominent ones: The criminal law promotes honesty,
good faith, and trustworthiness by stigmatizing perjury, fraud, and the
like. It encourages self-discipline, peaceful conduct, and respect for
persons and property by forbidding violent and property crimes. As a
rule, it holds people responsible for their actions, treating them as
moral agents. Yet it insists on moral culpability, in the form of
mens rea and voluntariness, and excuses defendants who acted
under duress, insanity, infancy, or other incapacity. Intent,
blameworthiness, honesty, self-discipline, responsibility for one's
actions, avoidance of violence, and protection of property-these are the
most basic norms of the criminal law.
Of course, criminal law does not live up to its ideals. Our system
does far less to educate, reform, reconcile, vindicate, and denounce
than it could. There is an important gap between our ideals and
reality, but the solution is not to abandon our ideals. Rather, where
feasible, we must start to bring practice into harmony with those
ideals. One has to start somewhere.
In short, criminal punishment does much more than deter and
incapacitate as cheaply and swiftly as possible. It seeks also to
educate the offender, induce repentance and reconciliation, vindicate
the victim, achieve catharsis, and reinforce moral norms to society at
large. Deterrence, education, repentance, and reconciliation are
contingent on whether offenders learn their lessons and change their
ways. In contrast, vindication of victims and moral norms are
analytically tied to the very message punishment sends. Section B
explains how confessions help to teach and change offenders in general
and sex offenders in particular.
B. Reluctance to Confess and the Value of Confession
To achieve these goals, the criminal law seeks to a) lead offenders
to repent by humbling them, b) exact moral sanctions, and then c) return
them to the community as equals. The difficulty, as discussed later in
this section, is that offenders cannot accept responsibility and repent
until they own up to their actions. But admitting wrongdoing to oneself
and to others is not easy. Many offenders are in denial about their
wrongs. They may feel guilty inwardly about what they have done, and
they may be ashamed to admit their wrongs to others.115 To avoid
responsibility, they may publicly or privately deny their acts, deny
their awareness, justify or excuse their conduct, or minimize its
gravity or harm. Their inward and outward lies shield offenders from
facing the painful truth.
These problems are most acute in the case of especially heinous or
shameful crimes, such as sex offenses.116 It is no coincidence that sex
offenders are among the most frequent users of Alford and nolo
contendere pleas.117 Denial and minimization of culpability are the norm
among sex offenders.118 Sex offenders deny the facts, their acts, their
awareness, or their responsibility, or minimize the wrongfulness or
impact of their behavior.119 They deny to their families, friends,
employers, and society at large to avoid shame and embarrassment.120 They
are also "afraid to admit the truth, even to themselves. The thought of
being a sexual deviate can be so frightening or repugnant to them that
they hide from themselves for years."121 In short, sex offenders lie to
avoid or minimize shame and guilt. (In contrast, white-collar
defendants are more likely to lie to avoid shame and protect their
reputations.122)
In many cases, these lies and explanations are not simply excuses for
public consumption. They reveal underlying attitudes and cognitive
distortions that may lead to more sexual offenses in the future. 123
Offenders who lie to others come to lie to themselves and distort their
memories and interpretations of events.124 For example, a molester might
say "It wasn't sexual and anyway there's nothing wrong with having sex
with a child," or a rapist might say and believe that the victim asked
for it.125
These cognitive distortions and denials impede treatment. Admitting
one's wrongdoing is the first step toward moving beyond it.126 In
twelve-step programs such as Alcoholics Anonymous, an essential step is
to admit that one has a problem.127 Confessed offenders can no longer rest
complacent in the illusions that they are good people, but must admit
that they have fallen down as a prelude to standing up again. In
addition, denials prevent offenders from revealing details of their
offenses, which are essential to framing a therapeutic response.128 They
prevent therapists from examining cognitive distortions, detecting
warning signs, and nurturing empathy for victims.129 Thus, most treatment
programs refuse to admit sex offenders who deny any sexual
conduct.130 According to my interviews, the sex-offender treatment program
in Missouri state prison requires admission of guilt as a condition of
therapy. Thus, Missouri judges will not allow sex offenders to enter
Alford pleas. Denial, in short, obstructs treatment, which in
turn greatly increases the risk of recidivism.131
When wrongdoers are reluctant to admit responsibility, many
therapists find it helpful to confront them with the facts, to force
them to come to terms with their behavior.132 Firmly challenging these
denials and distortions is a "very effective" way of overcoming them. 133
Therapists must actively confront and challenge sex offenders;
supportive, passive therapy usually fails.134 Challenges can take various
forms, including group confrontation, questioning of inconsistencies,
asking for explanations and details, indirect challenges, challenges by
loved ones, challenges coupled with empathy and support, and challenging
offenders to challenge themselves.135 By challenging offenders' excuses
and rationalizations, therapists can trigger feelings of guilt and
harness this guilt to induce change.136 Even external pressures, such as
the threat of imprisonment, can be effective inducements to overcome
denial.137 These external challenges and pressures help to shatter the
offender's illusions and begin the journey.
Confessions and denials within the legal system may have effects
similar to confessions and denials within therapy. Confessions in open
court, even if induced by some external pressure, can begin to breach
the dam of denial. If offenders who confess later try to recant during
treatment, therapists can confront them with the details of their
initial confessions.138 In contrast, repeated unchallenged denials in the
legal system only exacerbate offenders' denial reflex, making subsequent
treatment even harder.139 The result is that offenders who enter
Alford or nolo pleas remain in denial and resist successful
treatment, making them much more likely to reoffend.140 One small
Minnesota study found that seven out of eight sex offenders who had
entered Alford pleas reoffended within five years of release. 141
This is two to five times the recidivism rate of sex offenders in
general.142
Two anecdotal interviews with judges indicate that what offenders say
in court matters to their and others' perceptions of their guilt. One
long-time judge reported to me that he used to allow defendants to plead
nolo contendere. What he found was that a defendant would say nothing
in court. Then, upon reporting to a probation officer for a
pre-sentence interview, he would deny guilt. He would also tell his
family that he had not done the crime but his lawyer had made him plead
guilty. Family members would write angry letters to the judge,
complaining about what a travesty of justice it was to convict an
innocent man. They would say, for example, that the rape victim was a
tramp who consented to sex. At sentencing, the defendant and his family
would continue to deny guilt and, at least implicitly, blame the victim.
Victims would be visibly frustrated when making statements at
sentencing, feeling that they had to justify themselves instead of being
able to heal. After sentencing, these convicted defendants would
continue to deny guilt, impeding therapy or treatment. Then, this judge
stopped permitting most nolo contendere pleas. Defense lawyers had to
confront clients and bring them to admit guilt; almost none insisted on
going to trial. They did not renege on these admissions after leaving
court. Defendants evidently stopped denying guilt to themselves and
their families, as the complaining letters from families stopped.
Defendants and families no longer denied guilt at sentencing; they
seemed less defiant, more contrite, and less openly hostile and angry.
Victims took satisfaction in feeling vindicated and were able to express
healthy outrage at sentencing instead of frustration. To this judge,
the victims appeared to be healing better. And the judge, having heard
a detailed plea colloquy, was much better able to confront defendants
with the details and wrongfulness of their acts.143 Another judge
confirmed the outlines of this story. He noted that some defendants are
agitated and balk at admitting guilt, but plead guilty when told that
the alternative is going to trial. These defendants seem calmer and
more accepting of responsibility after their guilty-plea allocutions and
less likely to protest innocence and injustice later on. In short, the
legal system's labels and unequivocal ascriptions of blame influence
offenders' thought processes and their treatment prospects.
An analogous dynamic may be at work in insanity cases. A few case
studies show that offenders who are found not guilty by reason of
insanity resist discussing their thoughts, feelings, and actions.
Instead, they externalize their feelings and ascriptions of blame. They
may show no remorse, saying (as two patients did) "The judge said I was
not guilty" or "I have not committed a crime."144 In contrast, persons
with mental illness who are convicted of crimes may react more
positively. Society's pronouncement of guilt may spur and reinforce the
offender's introspection, acceptance of responsibility, and treatment
prospects.145 In short, "judicial expression[s] of blameworthiness"
promote "accept[ance of] responsibility for actions committed during
periods of gross mental disorder," which may aid treatment and reform. 146
My point is not that the insanity defense is good or bad-there are many
other pros and cons to consider. My point is simply that the law's
labels and ascriptions of blame influence rehabilitation and reform.
This evidence comes primarily from the psychological literature on
sex offenders, substance abusers, and mentally ill offenders. I have
found only one study that discusses the psychology of guilt and
confessions in criminals generally. That study confirms that guilt,
psychological blocks, and confessions play similar roles in treating
other kinds of offenders.147 Perhaps it is dangerous to generalize, but
one might extrapolate based on my interviews that other offenders who
enter Alford and nolo contendere pleas are doing so in part
because they face similar psychological blocks. Alschuler's anecdotal
evidence certainly suggests that.148 The idea is intuitively plausible.
Offenders who are not reluctant to confess enter straight guilty pleas.
Offenders whose psychological barriers impede confession (to others or
even to themselves) are the prime customers for Alford and nolo
pleas, as my interviews confirmed.149 Those guilty defendants who use
these pleas most are presumably those in the deepest denial who most
need to come clean.
Some defendants are willing to confess and plead guilty. As
Alschuler rightly notes, most guilty pleas are not the fruit of genuine
repentance. Instead, defendants feign repentance to earn sentence
reductions.150 But even feigned or induced repentance may teach lessons to
some offenders. The very act of confessing and pleading guilty in open
court drives home the defendant's awareness of the victim's injury, the
norm violated, and the community's condemnation.151 Indeed, the ordeal of
feigning repentance, even if done initially for the wrong reasons, can
sometimes lead to genuine repentance.152 Cognitive psychology teaches the
same point. According to cognitive dissonance theory, persons who
publicly take positions that they do not believe are likely to change
their attitudes to bring them into line with their public statements.
Kenneth S. Bordens & Irwin A. Horowitz, Social Psychology 221
(2002). Thus, offenders who publicly accept responsibility for their
crimes, even if they do so insincerely, are more likely to internalize
that responsibility than those who persist in denying guilt. Confessing
is for many a difficult act. It requires owning up to shameful deeds,
putting aside excuses and evasions, and taking responsibility for one's
past. As my interviews indicated, defense lawyers often have to work
with defendants before they can bring themselves to admit guilt. The
hard work of admitting guilt and repenting may impress upon the
defendant the wrongfulness and gravity of the crime. By admitting
guilt, however insincerely, defendants let down their denial mechanisms,
open the path to reform, and bring closure to the community.153 The value
of confronting guilt and apologizing is a central insight of the
restorative-justice movement. Offenders confront their guilt and
wrongdoing by meeting face-to-face with victims, learning about their
sufferings, and perhaps apologizing and making amends. See
generally John Braithwaite, Restorative Justice & Responsive
Regulation (2002); Gerry Johnstone, Restorative Justice: Ideas, Values,
Debates (2002); Garvey, supra note , at 1840-44. Doubtless many
offenders start out making grudging or insincere admissions and
apologies. Nonetheless, the hope is that victim-offender mediation,
sentencing circles, family-group conferences and the like will teach
offenders moral lessons by making them see the suffering they have
caused.
Perhaps many defendants plead guilty cavalierly, confessing the words
without confronting their significance. But this description is least
true of those defendants who balk most at pleading guilty, namely those
who want Alford and nolo pleas. These defendants are in the
deepest denial and would have to struggle the most to admit guilt. This
struggle to admit shameful acts is more likely to leave an impression on
them, because it involves breaking down walls of denial. The more of a
struggle it is to confess, the bigger the breakthrough when the
defendant finally confesses. Indeed, it is a catharsis, literally a
cleansing, which is why we often speak of confession as coming
clean.
In short, confessions help to educate and reform some defendants.
And by accepting responsibility, guilty defendants who confess bear
witness to the truth and bring closure to victims and the community.
C. The Substantive Value of Trials
Whatever their other flaws, plea bargains induce guilty defendants to
confess and start down the road to repentance. Some defendants cannot
or will not admit guilt. For these guilty defendants, as well as for
innocent defendants, the law has jury trials.154 We usually think of jury
trials as simply procedural safeguards designed to ensure accuracy and
fairness. To borrow Herbert Packer's terminology, there are two
dominant approaches to criminal procedure. Crime-control advocates
stress speedy and efficient pursuit of the truth; due-process advocates
emphasize procedural fairness and perceived fairness.155
Both views of criminal procedure, however, are incomplete. Trials
not only seek fairness, efficiency, and accuracy; they also further the
criminal law's substantive moral aims and norms. As Thurman Arnold put
it: "Trials are like the miracle or morality plays of ancient times.
They dramatically present the conflicting moral values of a community in
a way that could not be done by logical formalization."156 The jury serves
as the chorus of a Greek tragedy, "the conscience of the community."157 It
applies the community's moral code, pronounces judgment, and brands or
exonerates the defendant.158 The parade of live witnesses and the solemn
pronouncement of guilt confront the offender at length with his wrongful
deeds. This litany of accusation, evidence, and condemnation may
perhaps break through the defendant's denial mechanisms, driving home in
undeniable detail the wrongfulness of the crime. (Alternatively, the
preparations for and prospect of facing trials may force offenders and
counsel to confront guilt, eventually leading to straight guilty pleas.)
These morality plays hold out hope of reforming guilty defendants and
healing society. Colonial Americans prized the trial as "an occasion
for repentance and reintegration: a ritual for reclaiming lost sheep and
restoring them to the flock."159
For those offenders who refuse to confess or repent, trials still
bring catharsis and closure to victims and the community. As one court
put it, "[j]ury trials have historically served to vent community
pressures and passions. As the lid of a tea kettle releases steam, jury
trials in criminal cases allow peaceful expression of community outrage
at arbitrary government or vicious criminal acts."160 Or, as the Supreme
Court put it, "public trials ha[ve] significant community therapeutic
value" and bring "community catharsis."161 Trials express respect for the
law, communicate values, and justify punishment. They engage offenders
in critically examining their acts, and they express and justify the
community's norms and response.162 On Durkheim's view, convictions at
trial vindicate victims and the community, denouncing offenders and
reaffirming moral norms in the face of their transgression.163 This is
true regardless of how offenders respond.
Conversely, acquittals at trial vindicate innocent defendants and the
moral norms on which they acted.164 Think, for example, of the prosecution
of John Peter Zenger for seditious libel in colonial America. The
jury's celebrated acquittal proclaimed to all eternity Zenger's right to
criticize the government.
Trial verdicts, whether convictions or acquittals, send messages
about the substantive moral norms underlying the criminal law. The
message of one case is that a bank clerk, no matter how tempted, must
restrain herself from helping herself to other people's money. Another
case teaches that hate crimes and bigotry against minorities are wrong.
The message of a third case condemns the impulsive killer's failure to
restrain himself in the face of a mere insult. Each unambiguous verdict
is a lesson vindicating a moral norm of the community. Some trials are
widely publicized, while others speak only to the victims, witnesses,
jurors, and others directly involved. Though the scope of publicity
varies, each trial sends a message to the universe of those who hear
about it.
If trials serve these purposes, then Alford and nolo
contendere pleas subvert these purposes in the name of efficiency and
autonomy. Convictions at trial and ordinary guilty pleas communicate
unambiguous verdicts of guilt that bring closure.165 This clarity is
essential. Alford and to a lesser extent nolo contendere pleas
are ambiguous on their faces. By pleading guilty-but-not-guilty,
defendants muddy the moral message. These pleas communicate that the
law does not care enough about crime to insist upon clear, honest
resolutions and vindications. Proclaiming the truth, justice, respect
for others, and self-restraint take a back seat to procedural efficiency
and freedom of choice. Plea bargains may do that covertly, but
Alford and nolo contendere pleas do it shamelessly.166 By failing
to challenge offenders who falsely deny guilt, criminal procedure
undermines the criminal law's basic norms of honesty and responsibility
for one's actions.
Some authors would rather shelter guilty defendants from the norms
of justice. As Kaden recognizes, Alford and nolo contendere
pleas allow defendants to preserve their autonomy, privacy, and dignity
by refusing to admit guilt.167 Unfortunately, this autonomy, privacy, and
dignity come at the expense of education, repentance, reconciliation,
and vindication. Offenders have abused their autonomy and privacy,
forfeiting their right to live autonomously and privately outside prison
walls. They have exalted their freedom at the expense of victims and
need to humbly accept responsibility for their wrongdoing.168 The Psalmist
ties this humbling to the law's function of educating wrongdoers: "It is
good for me that Thou hast humbled me, that I might learn Thy statutes."
The Psalter According to the Seventy Psalm 118:71 (Holy
Transfiguration Monastery trans. 1997) (compare Psalm 119:71
(King James Version): "[It is] good for me that I have been afflicted,
that I might learn thy statutes."). Herbert Morris notes that offenders
have aggrandized themselves at the expense of victims by renouncing
compliance with the law.169 Punishment seeks to "humbl[e] the
[defendant's] will," "to bring him low" after he has aggrandized
himself.170 A guilty plea allocution or a full-fledged jury trial teaches
this lesson to the offender, the victim, and the community. A quick
Alford or nolo contendere plea short-circuits the process,
leaving offenders and their families in denial.171 Offenders avoid the
shame and guilt of owning up to their deeds, though they do not deserve
to avoid the shame and guilt that they have earned. Their families
continue to protest innocence, instead of reinforcing the message that
it is time to change. These pleas are most attractive to those who deny
guilt to others and perhaps themselves, but these are precisely the
offenders who need to have their illusions, excuses, and pride
shattered. If offenders do not admit to having done anything wrong,
they are unlikely to learn the lessons of their crimes and move beyond
them. As Santayana warned, "those who cannot remember the past are
doomed to repeat it."172 These are the offenders who most need to learn
their lessons at jury trials.
Another justification offered for these pleas is that they ease the
strain on the relationship between defendants and defense counsel. As
Alschuler and Wallburn suggest, defendants often balk at admitting
guilt, even to their lawyers. Defense lawyers can avoid friction by
allowing clients to enter Alford pleas instead of pressing
clients to admit guilt.173 So, their reasoning goes, these pleas avoid
straining the attorney-client relationship. This view fits with the
dominant view of lawyering as gamesmanship. On this view, the job of a
defense lawyer is to avoid conviction, minimize punishment, and further
whatever interests the client wishes to pursue. There is a spectrum of
ways to approach serving the client's interest. At one end of the
spectrum, some lawyers actively confront and challenge their clients
when preparing for trial or seeking leniency at sentencing. Toward the
other end of the spectrum, some lawyers are more hands-off about
challenging clients' assertions of fact or expressions of
preference.
Allowing lawyers to take this path of least resistance is a vice,
however, not a virtue. This is not the place to consider the merits of
gamesmanship more generally. But at least in the context of defendants
who are in denial, the gamesmanship model is misguided. It ignores the
constructive role that defense lawyers can play in educating and
transforming clients' misperceptions and short-term desires. Instead,
it takes short-term desires as a given, even when these clients are
suffering from psychological blocks that obstruct their long-term
interests and values.174 (In contrast, guardians are often authorized to
put their wards' long-term interests above their short-term
desires.)175 True, the Model Rules of Professional Conduct distinguish
between the roles of guardians and lawyers. They provide that, to the
extent possible, lawyers should treat disabled clients just like any
other clients. Model Rules of Professional Conduct Rule 1.14. But they
also recognize that in some situations, wards need guardians to make
decisions for them or at least guide them in making these decisions.
The proposal in the text would still allow clients to make ultimate
decisions, but would constrict the range of legally permissible
decisions in order to foster more productive confrontation and dialogue.
Lawyers can recognize that substance abuse, mental illness,
psychological blind spots and denial, or simple short-sightedness
impedes their clients' rationality.176 They can persuade clients to face
up to patterns of behavior that, if left unattended, will produce more
crimes and punishment in the long run.177 As suggested by the
psychological literature cited earlier, lawyers can confront their
clients with the overwhelming evidence of guilt and break down their
denials.178 And lawyers can provide moral as well as legal counsel,
advising clients that it is right to come clean, apologize to victims,
and move forward.179 By penetrating clients' denials to others and
themselves, defense counsel can begin the process of honesty, education,
and reform.
Some defense attorneys do challenge their clients, but not all do.
Defense lawyers can instead say, "Yes, you are innocent, but a jury
would probably convict you at trial, so enter an Alford or nolo
contendere plea." As one psychologist notes, defense lawyers exacerbate
the problem by failing to challenge their clients' denials enough.180 Far
from challenging denial and encouraging confession, the dominant
client-centered approach to counseling discourages painful confession.181
Indeed, some defense lawyers purposely avoid learning all the facts
about guilt, so that they remain free to make arguments that run counter
to the undiscovered facts.182 This see-no-evil approach not only leaves
offenders' illusions and denials in place but compounds them. Clients
interpret this failure to challenge as confirmation and become even more
resistant to the challenges required during therapy and rehabilitation.183
Instead of repenting and moving forward, offenders may continue to feel
sorry for themselves, focusing their energies on collateral attacks
instead of making amends. The criminal process is not simply about
getting to prison as smoothly as possible, but also about teaching and
opening the offender's eyes along the way. (If on the other hand the
client is innocent, this approach is a cop-out that avoids vigorously
vindicating innocence.) In short, letting defense counsel take the easy
way out actually disserves the client's long-run interests, as it gets
in the way of facing the facts. The same is true of judges and
prosecutors who acquiesce in Alford or nolo contendere pleas.
They may be serving their own selfish or short-sighted interests in
clearing their dockets instead of seeking to do more to heal, teach, and
vindicate.
Regardless of whether Alford and nolo contendere pleas impair
the offender's own education and reform, they hurt others. They undercut
not only the lessons taught by the criminal justice system, but also its
deterrent effect on this and future offenders. Offenders dislike having
to admit their guilt, and this dislike makes committing a crime
marginally more unpleasant. Offenders also dislike being collaterally
estopped in related civil lawsuits, which again should have an
additional deterrent effect.184 Alford pleas allow offenders to
avoid the former consequence. Nolo contendere pleas let them avoid
both, which serves the self-interests of offenders and prosecutors at
the expense of victims and the civil courts. Victims already find it
hard enough to collect compensation and restitution even with the
benefit of estoppel. Nolo contendere pleas compound the problem by not
estopping offenders, instead letting them relitigate their
convictions. Victims and civil courts must spend more time and money to
collect compensation. Yet there is no good reason to allow
relitigation: if there is proof beyond a reasonable doubt of a
crime, then a fortiori there is proof by a preponderance of the
evidence, and estoppel should attach.185 It is hard to know exactly how
significant estoppel is in practice or how often it becomes an issue in
subsequent civil litigation. My interviews revealed that it was a
frequently mentioned justification for nolo contendere pleas, which
implies that the prospect of civil litigation comes up with some
regularity. This is particularly true in automobile-accident cases
(because insurance companies with deep pockets are involved). See
supra Part II.C. The failure to estop defendants and drive home
guilt is yet another way that these pleas equivocate and undermine the
criminal law's message. By alleviating the unpleasantness of
convictions, these pleas weaken general and specific deterrence.
Alford and nolo contendere pleas also hurt victims and the
community. Victims go without vindication. They lose their day in
court, their chance to vent their sorrows and ask for justice, without
even an admission of wrongdoing let alone an apology.186 (This explains
why, when victims find out about Alford pleas ahead of time, they
sometimes try to dissuade prosecutors from accepting them.187) Molestation
victims, for example, can suffer more harm when courts appear to accept
the denials of molesters; this judicial acceptance seems to suggest that
the victims are liars.188 And the lack of estoppel makes it harder for
victims to collect from defendants who pleaded nolo contendere.
Traumatized victims who want closure may be more reluctant to pursue
these claims at all. Society loses the authoritative vindication of its
norms and the repudiation of the wrong, from either the jury or the
offender. Instead of communicating that punishment is moral
denunciation based on true desert, society treats it as a marketable
good, undermining its moral authority.189 Of course, many pleas are not
well publicized, but to the extent that victims and others do learn of
them, they take away the wrong message. In short, the efficiency of
these pleas comes at the price of undermining catharsis, expressive
condemnation, and vindication of the community's norms.
Alford and nolo contendere pleas may well be constitutional,
in light of the latter's historical pedigree.190 But constitutionality is
not wisdom. Though our Constitution may tolerate these pleas, they are
nonetheless unwise and should be abolished. Indeed, Alford left
this door open, recognizing that while these pleas are permissible they
are not required.191 Legislatures are perfectly free to ban these pleas.
Until they do so, judges are free to exercise their discretion to reject
these pleas. Prosecutors may vigorously oppose them, and defense
counsel may advise their clients to confront guilt instead of taking the
easy way out. (Perhaps no-contest pleas are necessary in isolated
cases, such as where a defendant was truly too intoxicated to remember
anything and a trial would traumatize a vulnerable witness. This kind
of justification, however, should be exceptional. They might also be
needed in traffic cases, where a tort suit will resolve the fault issue
and the minor traffic violation carries less moral significance. It is
hard to imagine any case in which an Alford plea would be needed,
particularly because Alford pleas are far more ambiguous and
equivocal.) Unequivocal pleas or trials may be less efficient and
require more work, but in the long run they better serve the moral
values of the criminal law.
CONCLUSION
Our guilty plea process has become streamlined, to allow the maximum
entry of guilty pleas with a minimum amount of work. It is so obsessed
with efficiency that even a defendant's refusal to admit guilt or
protestations of innocence do not give us pause. This assembly-line
approach to criminal procedure downplays the importance of innocence and
fairness, but it also ignores the important substantive values of the
criminal law. These values are not even on the radar screens of
proceduralists, when in fact they should take precedence.
Procedure is supposed to further substance instead of cannibalizing it.
Scholars should closely scrutinize procedures that may undercut
substantive values, but they do not.
This problem is not an isolated one. It reflects a broader gulf
between procedure and substance. Scholars often reify the artificial
curricular distinctions between subjects. This can obscure how one
subject affects another, how procedure serves or hinders substance and
vice versa. We often ask whether a given procedure is efficient, or
accurate, or constitutional. Efficiency, in particular, has driven us
to our wholesale embrace of guilty pleas, lest we be burdened with
expensive and time-consuming trials. But we rarely ask if a procedure
deters, educates, inflicts retribution, or produces catharsis. Nor do
we ask if it undercuts the criminal law's moral norms, such as honesty,
trustworthiness, self-discipline, non-violence, and respect for
others.
If we were to look at procedures through this substantive-values
lens, the disappearance of jury trials would be cause for more concern.
Jury trials are far from efficient, and they are not always accurate
either. But they serve as morality plays, expressing the community's
conscience, allowing victims to voice grievances, and teaching offenders
and others by vindicating society's norms. Jury trials have all but
disappeared, accounting for fewer than 4% of all cases disposed of by
trial or plea192, and wishing will not make them come back. But in the
real world of guilty pleas, we can at least try to incorporate these
values into our plea and sentencing procedures.
I suggested in Part IV that this substantive-values approach might
require rethinking the role of defense counsel. Instead of taking their
clients' desires as a given, defense counsel might try to educate and
serve their long-term interests. (For example, defense counsel might do
their clients a great service by pressing them to seek drug treatment.)
Scholars should likewise rethink the roles of judges and prosecutors.
The issue is not simply one of favoring defendants versus favoring
prosecutors-that view buys into the stale dichotomy between
crime-control and due-process approaches. It is time to transcend this
zero-sum way of looking at criminal procedure, as efficiency versus
fairness, and instead think about what other values prosecutors, judges,
and defense lawyers should serve. The win-at-all-costs mentality that
sometimes prevails at the bar might give way to a broader approach.
Perhaps the right incentive structures could encourage prosecutors and
judges to care less about maximizing convictions and case dispositions.
Perhaps they could see the law and their roles more nobly: in terms of
public morality, as they seek to teach, vindicate, heal, and
reconcile.
For example, at guilty plea allocutions, defendants can choose to
make full, honest, and open admissions of guilt and expression of
remorse. But defendants often do not go nearly so far. Sometimes, they
combine bare-bones or grudging admissions to crimes with excuses,
evasions, or deflecting blame onto others. Currently, the federal
Sentencing Guidelines are vague as to when guilty pleas will earn
sentencing reductions for acceptance of responsibility.193 In practice,
however, many federal judges automatically award full
acceptance-of-responsibility reductions for any guilty plea.194 Many do so
no matter how grudging the defendant's admissions were and no matter how
little remorse he displayed.195 This approach would make sense if our only
concern was reaping the efficiency benefits of avoiding trials. But if
moral education and reform are also important goals of the process, then
judges should calibrate the rewards to the defendant's contrition and
candor.
If defense lawyers knew that full acceptance of responsibility
mattered, they would press their clients harder to come to terms with
their misdeeds. Some defendants would still be grudging or insincere in
admitting guilt, and these may be the ones who most need punishment to
break through their half-denials. Even insincere apologies and promises
of reform have value. For example, compliance theory suggests that
defendants who publicly commit to reform in front of a judge and loved
ones are much more likely to reform.196 Judges should consider defendants'
demeanors at pleas when imposing sentence, in assessing what lessons
they need to learn. Thus, the judge who will impose sentence should
hear the guilty plea whenever possible, instead of passing the plea off
to a magistrate (as federal judges often do).197
There are other ways to inject substantive values into plea and
sentencing procedures. For example, judges at plea hearings could
insist on more detailed allocutions and use more overtly moralistic
language, driving home the wrongfulness of the crime. Victims could
confront offenders at plea or sentencing, giving voice to the grief they
have suffered. This may be the best argument for victims'-rights bills:
They serve overlooked substantive values such as retribution, catharsis,
and closure, and counteract prosecutors' temptations to sacrifice these
values for efficiency.198 And the rhetoric of sentencing could become less
a desiccated recitation of Sentencing Guidelines mathematics and more an
expressly moral judgment on wrongdoing. These and similar procedures
would help to educate, express communal outrage, vindicate norms, and
reform as jury trials once did.
There is a range of ways to apply this article's substantive-values
approach. A modest view would simply add substantive values to the
balance or mix of values that proceduralists currently consider. A
strong view would say that these substantive values should become the
dominant concern of criminal procedure. Depending on how far one takes
it, this approach runs up against some entrenched features of our
system. For example, an important strain of my argument has favored a
more moral, didactic emphasis in proceduralist reasoning. One might use
this approach to scrutinize the messages sent by many established
procedures: exclusionary rules, plea bargaining, the adversary
system, and even our rights-based approach. My point is not to resolve
the tradeoff between substantive and procedural values, nor to discuss
how much scholars must accommodate established practice. Procedural
values, stare decisis concerns, and practical problems will all
limit the implementation of substantive values. My point is simply to
show the range of procedures that one could examine using this new
lens.
Implementing these substantive values will not be simple, as they may
be less convenient and might require more time and effort per case. But
the cheapest and fastest methods are not always the best ones, and some
things are worth the cost. The criminal law is not simply about locking
up offenders cheaply.199 If the criminal law is to educate the public and
teach offenders lessons, we must be willing to spend money, just as we
must spend for good educations in schools. Procedure must reinforce
substance, instead of sacrificing it on the altar of short-sighted
efficiency.
This bridging of the procedure/substance divide is part of a broader
project to refocus criminal procedure. Criminal procedure scholarship
has been so preoccupied with the constitutionality of rules that it has
neglected their wisdom. And scholars focus so much on what the Supreme
Court of the United States does that we ignore the rest of the actors in
the process. The Constitution, however, sets only a floor, not a
ceiling. The Supreme Court permits Alford pleas, but that does
not mean that legislatures, prosecutors, defense lawyers, and trial
judges should use them. It is time to move beyond our ivory-tower focus
on the Supreme Court and constitutional law. We must also scrutinize
how procedures do and should interact with substantive values in the
real world.
*Associate Professor, University of Iowa College of Law; former Assistant U.S. Attorney, Criminal Division, U.S. Attorney's Office for the Southern District of New York (bibas@philo.org). B.A. Columbia; B.A., M.A. Oxford; J.D., Yale. Thanks to Al Alschuler, Dave Baldus, Anita Bernstein, Randy Bezanson, Peter Blanck, Steve Garvey, Gary Goodpaster, Herb Hovenkamp, Ken Kress, Margaret Raymond, Chris Slobogin, David Wexler, Bruce Winick, and Tung Yin and participants in faculty workshops at Northwestern University, the University of Iowa, University of Kansas, and University of St. Thomas Schools of Law for their advice and comments on earlier drafts and to Bryan Bennett, John Harbin, Keith Kasten, Ted Moore, and Kerstin Rademacher for able research assistance. © 2003 by Stephanos Bibas; all rights reserved.
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