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.