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November 5, 2018

"Fictional Pleas"

The title of this post is the title of this new paper now available via SSRN authored by Thea Johnson.  Here is its abstract:

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

November 5, 2018 at 09:41 AM | Permalink


If we want to retain any sense of credibility, no one should ever allow a defendant to plead guilty to a crime that everyone agrees was not committed. It also corrodes the concept of the criminal justice system being about truth as opposed to the ends justifying the means. Sometimes truth and honesty are simply more important than expediency and “preferred” outcomes.

The prosecutors involved in this kind of thing are facilitating a fraud, and if they don’t think that it won’t be used against them later, they are being naive. Just wait for someone to trot out the “increasing percentage of defendants pleading guilty to crimes they did not commit.“. What won’t be mentioned is how many of them were guilty, but of a different and more serious crime.

Posted by: David | Nov 5, 2018 10:58:11 PM

I am a criminal defense attorney. This artifice is a direct result of mandatory sentencing and other mandatory collateral consequences where sentencing and community penalties fail to reflect the nuances and mitigating aspects of much behavior even when it technically falls within a certain criminal statute. Prosecutors (and many victims) recognize the mandatory punishment does not necessarily fit the crime but the only way to get to the "right" outcome is to work around the mandates which can never consider every scenario and often seem to be crafted with the most heinous versions of a given crime in mind. Once enacted, many political actors are loathe to correct an overreaction for fear of being accused of being "soft on crime." These pressures also undermine the use of the criminal trial as a truth-seeking mechanism because the stakes become too high for the defendant. We no longer have an adversarial system where a neutral fact-finder assesses the evidence and decides what if any sentence is appropriate. The current system largely operates within the black box of prosecutorial discretion.

Posted by: Laurie Rose Kepros | Nov 6, 2018 11:17:02 AM

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