An Alford plea of guilty derives from the U.S. Supreme Court decision in North Carolina v. Alford, 400 U.S. 25 (1970). The Alford court explained that while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Id. at 37. The Alford Court did not perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Id.
Criminal defense attorneys have a federal constitutional and ethical duty to advise their clients of the availability of the Alford plea as they discuss pleas of not guilty, guilty, and guilty but mentally ill, when those pleas are potentially available in their jurisdiction. Of course, whether a defendant seeks to enter an Alford plea is solely the ultimate decision of the accused, not their lawyer, although counsel must explain the pros and cons of the Alford plea as well as its availability. The decisions ultimately to be made by a competent client, after full consultation with defense counsel, include, inter alia, Awhat pleas to enter and whether to accept a plea offer. Criminal Justice Standards for the Defense Function, 4th ed., standard 45.2(b) (Am. Bar Ass’n 2017) (Control and Direction of the Case). In a criminal case, the lawyer shall abide by the client’s decision, . . . as to a plea to be entered, whether to waive jury trial and whether the client will testify.= Model Rules of Professional Conduct, Proposed Rule 1.2(a) (Final Draft 1982) (emphasis added). Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983).
Although a criminal defendant may always seek to enter a blind or open plea of guilty with no agreement or recommended sentence from the prosecutor, in most jurisdictions an Alford plea may not be entered without the permission of the judge and prosecutor. United States Attorneys may not consent to the plea known as an Alford plea . . . except in the most unusual of circumstances and only after recommendation for doing so has been approved by the Assistant Attorney General responsible for the subject matter or by the Associate Attorney General, the Deputy Attorney General, or the Attorney General. Justice Manual, tit. 9-16.015 (2018) (Approval Required for Consent to Alford Plea). The Alford decision does not require a judge to accept such a plea. An Alford plea is not a federal constitutional right.
An accused may want to pursue an Alford plea because of a desire to let the world or a small group of friends or family know that, although innocent of the charges, the defendant believes due to the prosecution evidence a jury would convict. A reality that may drive a person to seek an Alford plea is what is referred to as the trial tax, which is a euphemism for the imposition of a harsher sentence an accused receives when convicted at a jury or bench trial instead of agreeing to a plea bargain. The more severe penalty is often rationalized on the basis that a guilty plea saves judicial resources, such as the time of the judge, prosecutor, and jury, as well as the availability of the courtroom. Others see the trial tax as a pragmatic restraint on the federal and state constitutional rights to plead not guilty and to a jury trial.
A defendant with dissociative amnesia, if not declared incompetent, might find an Alford plea appropriate, although not mandatory, in those circumstances due to an inability to recall either or both personal guilt or the commission of the crime. In that situation, a defendant may wish to express a concern that they cannot admit guilt. An accused who has suffered post-traumatic stress disorder (PTSD) from participation in a violent crime may elect an Alford plea to forgo being forced through the recounting of the crimes at the guilty plea colloquy to re-experience the traumatic experience of the offense. These examples are only to illustrate that defense counsel needs to keep in mind that a multitude of unique situations could justify an accused’s consideration of and need for an Alford plea.
When a client wishes to enter an Alford plea, defense counsel has an obligation to try to negotiate into the plea agreement the prosecution’s consent to such a plea. Just as a trial judge has no obligation to agree to the prosecutor’s recommended sentence, the court is free to reject the Alford plea even when it is a part of the negotiated agreement.
A criminal defendant must understand the law in the jurisdiction relevant to an Alford plea. Defendants who know about Alford pleas may erroneously believe that such a plea is legally different than a traditional guilty plea. An accused’s protestations of innocence do not legally weaken or undermine the underlying plea of guilty. In most jurisdictions, a conviction via an Alford plea does not give a defendant any advantage at a parole hearing or when facing a sentence enhancement due to the Alford conviction. Despite common misconceptions, conviction by an Alford plea nevertheless results in a criminal record that has longstanding consequences including adverse effects on obtaining employment, housing, and licensing as well as social ignominy. An accused contemplating an Alford plea needs to understand the limitations of that guilty plea.
One disadvantage of the Alford plea is that the sentencer may view protestations of innocence as an absence of remorse that justifies a harsher penalty. Concerns about the defendant’s lack of remorse could be used to the accused’s detriment following conviction in matters of probation, parole, and clemency. A defendant considering an Alford plea needs to be apprised of this downside of this plea.
In negotiating for an Alford plea, a criminal defense attorney needs a strategy rather than just a request for a gift of such a plea. How would the entry of an Alford plea benefit the prosecution? Proffering a potential draft of the accused’s statement at the entry of the plea of the prosecution’s overwhelming proof of guilt to balance the defendant’s protestation of innocence of the charges is an area where both the prosecutor and the judge may be influenced to accept an Alford plea. The wording and substance of such a draft statement may be further negotiated with the prosecution. But if the defendant is seeking an Alford plea to minimize public awareness of the extent of the prosecution’s evidence, that client may not be willing to agree to making a plea statement that reveals in great detail the government’s incriminating evidence. Yet defense counsel may be able to accomplish a plea statement that delineates the evidence against the defendant in terms of witnesses and documents without too many inflammatory details.
Another area of negotiations could be an agreement of what the accused and counsel will say to the media after sentencing following an Alford plea. This agreement by the client and counsel could ensure that the defense post-sentencing would not use the Alford plea to undermine the integrity of the conviction or to persecute the prosecution. Although an accused has a First Amendment right to speak about his conviction, that right may be negotiated away if the defendant makes a knowing and intelligent waiver. Obviously, the normal advantages to the prosecution of any guilty plea, such as no trial, are insufficient to convince a prosecutor to consent to an Alford plea since any negotiated plea provides those benefits.
Another ally in persuading the prosecutor and court to consent to an Alford plea may be the alleged victim or victims of the charged offenses. A victim might be attracted to having the defendant convicted by an Alford plea that spares the victim from having to testify at a jury trial and limits the amount of information about the victim’s evidence. In jurisdictions with statutory laws that create a victims’ bill of rights, giving victims a role in plea bargaining, a victim’s consent to an Alford plea could be important. The core rights for victims of crime include the right to be heard in the criminal justice process, including the right to confer with the prosecutor. In some jurisdictions, a victim has the express right to consultation on the case disposition including a negotiated plea. In regard to an Alford plea, the victim and the accused may have a commonality of interest. Standards indicate that prosecutors should consider Athe negative impact of a prosecution on a victim. Nat’l Dist. Att’ys Ass’n, National Prosecution Standards, 3d ed., standard 42.4(c) (Factors to Consider). This would appear to include a victim’s desire to avoid a jury trial of the events that generated the charges.
Conversely, some victims may feel a defendant’s ability to obtain a negotiated plea bargain without admitting guilt cheats them from getting their day in court while allowing the defendant to proclaim their innocence of the charges. Those victims may actively influence the prosecutor against consenting to an Alford plea. This attempt to enlist the victim’s support for this plea could boomerang on the defense.
A defense attorney needs to have a thorough understanding of the Alford plea and a strategic play book with the most effective tactics to obtain the consent of the prosecutor and judge to a plea of guilty while protesting innocence. Counsel also must be familiar with the availability of the Alford plea and be able to advise the client on the advantages and disadvantages of that plea.
Counsel must realize that the client makes the final decision on whether to seek an Alford plea after consultation with and advice from counsel.
