‘Ripped from Today’s Headlines’: The Alford Plea–Pleading Guilty But Protesting Innocence

Last week in class, I wandered off on a slight tangent related to the Alford plea. Coincidentally, the very next day this fascinating bit of contemporary legal history and criminal procedure made its way into the news, prompted by a fairly unlikely source: a troubled ex-point guard from the University of Washington, Venoy Overton. The many varied ways in which legal history can surface–as well as coincidence–never ceases to fascinate me, and this example is no exception. What makes the Overton story interesting to a legal historian is, in a word, his plea. The Alford plea, Alford guilty plea, or as it is sometimes more colloquially known, the “I’m-guilty-but-I-Didn’t-Do-It” plea, allows a defendant to benefit from a guilty plea while maintaining innocence. But why would anyone do that? How did this plea come to pass? And what prompted Overton to do so?

The Alford plea is a form of “alternative plea”, meaning that it does fit the traditional pleas of either guilty or not guilty. As my students know, the English common law required one to plead, at the risk of suffering a very unpleasant procedure known as the peine forte et dure, or death by pressing. The rule has changed over time that failure to plea is entered as a not guilty plea by the court, but the principle of entering some form of plea is well-entrenched.  One such form of alternative plea is the no contest plea, or ‘nolo contendere‘, in which a defendant in a criminal action neither disputes nor admits the charge(s)–particualrly attractive to a defendant at risk for a subsequent civil case for damages, as a no contest plea contains no allocution or admission of guilt that could be used as evidence of wrongdoing. The Alford plea is another variant, premised on the defendant’s acceptance of a plea bargain agreement. In the plea bargain, s/he enters a plea of guilty while continuing to assert innocence. Typically, this involves a defendant’s acknowledgement that evidence of sufficient weight exists to result in a probable guilty verdict. The origins of this eclectic plea are fairly recent, dating to the 1970 Supreme Court case of North Carolina v. Alford. Henry Alford was charged with first-degree murder seven year earlier, and faced an automatic death sentence should two prerequisites be met: first, that the defendant pled not guilty; and secondly, that upon conviction the jury did not recommend a life sentence be imposed instead. Alford felt that, under the circumstances, he was facing a double-bind: only a guilty plea would guarantee he would not face the death penalty, yet he wished to profess his innocence. Alford therefore pled guilty to the non-capital charge of second degree murder, but felt that he was essentally doing so under duress. Alford appealed to the Supreme Court of North Carolina, District Court and the U.S. Court of Appeals; of these, only the Court of Appeals ruled that this plea was not voluntary. The Supreme Court took up the case, with a majority opinion written by Justice Byron White. The Court set out the standard that was to become the basis for the Alford plea, namely that a defendant “concludes his interests require a guilty plea and the record strongly indicates guilt”, having received benefit of advice from a competent attorney.

The record showed that Alford’s explanation of his plea was this: “I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man….I just pleaded guilty because they said if I didn’t, they would gas me for it, and that is all.” For his part, Overton was facing jail time for the crime of promoting prostitution. In his explanation of his plea, he wrote: “While I believe that I am innocent, I believe that the evidence in this case is such that a jury would likely find me guilty of the crime charged….I am entering into this plea agreement to take advantage of the states (sic)…recommendation.” Based on articles that describe Overton’s past conduct as well as the evidence against him in this case, it is likely (in my opinion) that he holds an overly-charitable view of the degree of his personal culpability in this case…but I digress.

The Alford plea is not without controversy, certainly– some defend it on the grounds that anything that promotes plea bargains is beneficial for a system that relies heavily on their use. Others view it as intellectually (and perhaps morally)  bankrupt, arguing that it undermines respect for the criminal justice system. If you believe that acknowledgement of one’s culpability is an important and necessary element in our system of justice, than an Alford plea does seem inimical to that goal. Alternatively, critics also argue that Alford pleas simply don’t make sense–innocent people should have their day in court, while guilty people should allocute to their crimes, while this plea facilitates neither of these things. This latter interpretation is, I think, true, but only if one does not include the category of people who one would most want to benefit from the Alford plea– namely, those who are legitimately not guilty of an offense but face a likely conviction. There will always be people who are in the ‘wrong place at the wrong time’ or against whom a strong (albeit misleading) circumstantial case stands.  The strongest criticism of Alford pleas is that they can become a vehicle for corruption,where defendants are ‘railroaded’ into taking pleas they do not fully understand. Conversely, it is true that some defendants taking advantage of Alford pleas are simply in denial about their guilt or have strategic reasons to enter such a plea in court. The West Memphis 3 were controversally allowed to enter this plea in 2011, with the result that their previous murder convictions were vacated, they pled guilty to lesser crimes while maintaining their innocence, and were sentenced to time served plus a suspended sentence of 10 years.

In reality, the Alford plea makes up a small percentage of all plea bargains in U.S. courts, estimated at somewhere in the 5% range for all federal pleas, and 17% of all state pleas, according to the U.S. Department of Justice–although these numbers are misleading as they also include please of no contest as well. They are accepted in virtually all state jurisdictions (Indiana, Michigan and New Jersey remain hold-outs); a full list of its acceptance by states may be accessed here.  While the civilian federal courts recognize Alford pleas, U.S. military courts do not.

The Alford plea is morally complex, it is true; it is also difficult to categorize and frankly even pardoxical. One day historians may look back at it as a fascinating historical relic, an esoteric piece of legal anachronism that seems as out of place as trial by battle–or it may become a bedrock aspect of American criminal procedure.



‘Ripped from Today’s Headlines’: The Alford Plea–Pleading Guilty But Protesting Innocence — 18 Comments

  1. Hey Ian P– I googled this plea recently as I came across it in my criminal justice course and it didn’t make a lot of sense to me at the time. Found your write-up helpful so thanks for that. later, Shanda S.

  2. Prof– just wanted to add a comment that I enjoyed reading your blog and would encourage you to write more often! I learn a lot about law from reading your postings.

  3. I plead guilty to having found this discussion interesting! I had come across a reference to this type of plea in a documentary I recently saw on the West Memphis 3, but they didn’t discuss how this plea worked. Thank you for the clarification!

  4. Hi Ian–We met at a conference in TO a few years ago. Just wanted to drop you a line and say that I’m enjoyign following your postings. Hope to see you at the next ASLH conference! TMW

  5. Interesting! (As usual. 😛 ). I have a potential topic for you: with all the continuing talk of ‘family values’, are there still laws against adultery?

  6. Hi there! Great title (I’m a Law and Order fan)– it sucked me in and I enjoyed reading it; I also really found your blog on breach of promise tomarry and Christmas caroling particularly interesting. Maybe you could write more often! I have a suggestion: maybe you could write about champerty? I heard about that recently and was not sure what that was all about.

    • Thanks Sylvia for the suggestion. An interesting topic, so I’ve added ‘champerty and maintenance’ to my list of blog topics. I’ll let you know when I post it.

  7. Hello Dr Ian, it is nice for me to pay a visit this web site, it consists of important and interesting legal informations. I find them of great interest as I study Western legal tradition and history and always find subjects here to think on. Sincerely, Shala El-Zhahara

  8. Hello, I simply wanted to take time to say I have really enjoyed reading your legal history site. I know it is probably hard to find the time, but my only complaint is that you don’t post often enough–soemtimes it is almost 2 months between postings! Please take that as a compliment.

  9. Hey Prof– just came across a reference to the Alford plea the other day on The Good Wife– it didn’t make a lot of sense to me until I read this post, so thanks for the explanation. The episode dealt with three girls charged with murder at a summer camp; there was a problem with the evidence and they were given the choice of making an Alford plea and getting out (but they wouldn’t be able to sue the state and would be felons), or taking chances on being retried. Anyway, glad you had this blog post written– wish I had read it before watching the show!

  10. Lawyers are for the most part the cruelest and most self-centered people to walk on the earth. Those reading this should know that criminal cases are normally fixed fee, typically $5000 for a misdemeanor. The lawyers want a plea bargain to avoid doing a lot more work going to trial, for which they don’t get any more money. Many lawyer’s fail to tell the defendant of the ‘no contest’ option, and fail to tell the defendant that the Alford plea indicates ‘defendant’s acknowledgement that evidence of sufficient weight exists to result in a probable guilty verdict.’ As is usual in courts, the lawyers and judges get what they want through extreme pressure and deception, justice is denied, and the defendant has no clue of what he agreed. Weeks and months precede going to court, when the lawyer can explain all this, but instead the crooked lawyers and judges never mention plea options until the last minute, and save themselves having to explain the real meaning and options. Lawyers win, judges win, defendants lose. Most defendants taking the Alford plea are taking a lesser charge plea, and believe that there isn’t sufficient evidence for a guilty verdict of the original charge, but that it is very risky to have a prejudiced jury decide between hearsay of a woman versus a man. So the defendant can’t research what the plea really means, crooked lawyers assure the defendant at the last minute that the Alford plea indicates they are innocent, period! and that there isn’t sufficient evidence, but that the risk of facing a jury and judge who are prejudiced toward women is very high, and the penalty of guilty to a higher charge is too high to risk. Lawyers and judges don’t have a reputation of being fair or honest?

  11. The lawyers, judges, police and police prosecutor lawyers all work together. The Alford plea is the perfect plea for fast, easy money for all of these people and their secret backdoor deals. And to add to the cruelty of these judges and lawyers, apparently in order to prevent an appeal (as indicated in this blog), the judge makes the defendant declare “I am not taking this plea under pressure or duress”. When that’s exactly what the defendant is doing! So the judge forces the defendant to state an all-out lie about being pressured, in order to allow the Alford guilty, but innocent plea. Courts are the playgrounds of lying judges and lawyers using people for their own enrichment and power and avoiding work by avoiding trial

    • hi, thanks for writing. Well, that’s one interpretation and you’re probably right that there are abuses. But to extend that to say that this is routinely the case and the whole system is corrupt is a big leap. If you feel that way about Alford pleas, do you think that all plea bargains are suspect as well?

  12. I find your law website interested as I learn alot from it about US law. I am Chinese law student and want to know more about US legal system and hope to study LLM someday. I follow your blog ,Prof Ian and look forward to what you write next evry time. Thank you. Xing Wu.

  13. Pingback: Ian’s Legal Fact of the Week 12/3/12: The Alford Plea | Ian C. Pilarczyk

  14. Pingback: Ian’s Legal Fact of the Week 2/16/15: The Alford Plea | Ian C. Pilarczyk

  15. Interesting read on alternative pleas; I always learn something new when I read yoru legal facts! thanks for posting.

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