Tuesday, August 14, 2018

Troubling Virginia Case Allows "Legal Fiction Plea"

On July 20, 2018, a court in Fairfax County, Virginia, approved of a "legal fiction plea."  The decision, from the Nineteenth Judicial Circuit of Virginia, begins with the following explanation of the issue and its holding:
The issue before this Court is whether a criminal defendant may knowingly plead guilty to a crime that he factually did not commit, and whether the Court can convict him based on such a plea.  This Court refers to such pleas as "legal fiction pleas," and holds that a defendant may enter such a plea as part of a plea agreement to avoid a potential conviction of a more serious crime or imposition of a worse sentence.  As long as a defendant fully understands that he could not otherwise be convicted of the lesser crime and asserts that he is entering the plea nonetheless for his own perceived benefit, courts should accept such pleas. 
It is worth noting that, according to the court, Virginia generally does not require "the introduction of evidence to sustain a conviction based upon a plea of guilty."  Later in its opinion, the court offers these additional thoughts. 
Can a defendant plead guilty to a crime that he factually could not have committed with his eyes wide open to take advantage of a favorable disposition?  This Court concludes that a defendant may plead guilty to a crime he never committed under these circumstances. ... This conclusion is unsurprising when one considers a similar, counterintuitive form of a guilty plea - the Alford plea.  
I recommend reading the entire opinion - available here.  

This case contains many troubling elements, such as the fact that Virginia allows guilty pleas without any evidence to sustain the conviction and that this court is now willing to even accept a guilty plea to an offense it knows the defendant did not commit.  As a general matter, I think this case is another example of how distant the modern plea bargaining system is from what was envisioned by the Supreme Court in the 1970 Brady case.  I would also argue that the Court’s analogy to Alford here is inconsistent with that case's holding, especially when it’s examined in the historical context of the Court’s plea decisions at the time.  I discuss both of these issues in my piece on the history of plea bargaining in the United States - The Brady Safety Valve (available for free download here).  I also think the court’s opinion here raises further concerns about plea bargaining’s innocence problem (discussed in my piece entitled The Innocent Defendant’s Dilemma - available for free download here), particularly as legal fiction pleas relate to the creation of sentencing differentials and questions of voluntariness.  

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