A Case for Abolishing Alford and No-Contest Plea Deals in Criminal Sexual Assault Cases

In March 2012, the U.S. Supreme Court ruled in Missouri v. Frye that defendants may pursue claims of ineffective counsel if their lawyers do not disclose acceptable plea offers before they expire.1 In the majority opinion for this case, Justice Anthony Kennedy wrote that “plea bargaining is not some adjunct to the criminal justice system — it is the criminal justice system.”2 Justice Kennedy is correct; today, over 95 percent of criminal cases that result in a conviction are plea bargained.3 It is unequivocally true that plea deals are ubiquitous in the modern age, as they can be found in almost all cases, including DUIs, aggravated assault, and murder cases. For the purposes of this paper, I will analyze plea deals in sexual assault cases and some of our legal system’s gravest injustices found within them.

I. Background

In the United States, only 8 percent of sexual assault convictions go to trial.4 The majority of the remaining 92 percent are “pled down”—that is, the prosecution, defense, and the judge negotiate a deal that results in a guaranteed conviction for a “lesser crime.” Upwards of 400,000 sexual assaults occur in the United States every year,5 and approximately 35 percent of those assaults result in a criminal charge.6 

Only about 12,000 cases actually reach the ears of a jury or a judge.7 Statistically speaking, if you’re a victim of a sexual crime in the United States, you have essentially already waived your Sixth Amendment right to a speedy trial.

Before Gideon v. Wainwright (1963),8 judges heard 12 to 20 felony cases per day, as no explicit right to legal representation for an indigent defendant existed. Additionally, before Gideon, plea bargain demands were unheard of—almost all cases were resolved through summary judgment. However, providing legal representation to every defendant meant that felony cases took longer to adjudicate and resulted with higher standards for acceptable evidence, more statements from counsel and witnesses, and a rigorous adherence to courtroom norms. Judges and counsel have a legal incentive to negotiate deals outside the courtroom to minimize the time, effort, and money spent on a trial. Furthermore, Brady v. United States (1970) established precedent regarding the constitutionality of overturning a plea offer after exculpating evidence had been released, with the mandate that the evidence be provided at the request of the defendant.9Before Brady, defendants were more hesitant to accept a guilty plea, as a competent prosecutor would only extend the offer after extensive consultation with the facts. After Brady, however, prosecutors were encouraged to strike plea deals before consultation, knowing that the defendant could overturn it.10 Brady aligned the economic interests of the prosecution with the defendant’s constitutional right to an impartial and speedy trial, thereby creating an environment tailored for attorneys to make a quick buck at the expense of their defendants’ freedoms.

Naturally, this effect played out in sexual crime cases. Victims in these cases are typically ill-informed of the conditions of their plea deals. Fortunately, Brady established that both the plaintiff and the 

defendant has a right to reasonable knowledge of the terms of their settlement and that mutual consent of the deal is necessary for its execution.11 Yet a study of Alford pleas in Washington State proves otherwise; prosecutors in state courts denied two-thirds of rape victims’ term requests, allowing for 80 percent of those denials to result in plea agreements that were contrary to the victim’s wishes for restitution.12 The study also found that the frequent denial of term requests resulted from Washington State’s victim’s rights program. In an attempt to make plea sentencing more just, Washington State required all victims to testify if they accept a plea deal offered prior to consultation and negotiation. While this law intended to incentivize collecting facts about the case, it disincentivized victims from pursuing robust, clear understandings of their plea deals. Because prosecutors understood that victims of sexual crimes did not want to be revictimized through forced testimony, they preemptively denied victims’ term requests in order to avoid starting the plea negotiation process prior to consultation. Furthermore, denying requests economically incentivizes prosecutors to keep cases as short as possible, regardless of their propensities for administering justice. For prosecutors, this is a clear win—their actions avoid the risk of psychological trauma for the victim and keep plea negotiations clear and concise. On the other hand, the victims who accept plea deals without receiving a robust report of the terms and conditions often either have their wishes expressly denied or come out lacking restitution.

II. Minnesota v. Finch: A Test Case
Minnesota v. Finch, a 2014 criminal sexual assault case in

which then-36-year-old Eugene Robert Finch was charged with second-degree criminal sexual conduct, puts the theoretical arguments against plea bargaining in more concrete terms.13 Finch rented out his 

townhome property in Maplewood, Minnesota, to a family with a 13- year-old daughter. Finch gained the family’s trust by providing free maintenance services and offering fixed rent prices. Relying on this trust, Finch convinced the daughter to take a ride with him in his Jeep and drop her off at a laser tag hall. Instead of dropping her off, Finch repeatedly touched her under her dress and manipulated her into performing sexual acts on him.14

Facing three years in state prison and registry on the state’s sex offender database, Finch entered a guilty plea. Due to the nature of his plea deal, Finch received a lenient probation and enrolled in a sex offender treatment program for six months with the agreement that if he completed his treatment, the charges would be dismissed.15 More importantly, Finch’s deal let him plead guilty to a lesser crime: child solicitation. The state also did not register Finch in the sex offender database.

Finch did not violate the conditions of his probation, and his initial charges were dropped after he paid his bail and fine.16 What did not change, however, were his intentions. Six months into his treatment, Finch started renting out his townhome to a new family while babysitting the family’s children. Finch was later convicted of coercing an 11-year-old girl to allow him to touch her genitals in exchange for a Barbie doll.17 Finch kept the girl silent by telling her to “not bite the hand that (fed her)” and threatening to evict her family if she reported the crime to the authorities.18 Physical evidence in thefamily’s attic confirmed Finch’s second sexual crime against a minor.

It is clear that something in the plea bargain system is wrong. Finch’s sentencing did not deter him from engaging in an illegal and predatory behavior. Rather, having the knowledge that he did not have 

to face the consequences of his actions encouraged him to repeat his offense.

III. The Case Against Alford and No-Contest Deals

What is the real product of the plea bargaining system in sexual assault cases? What has really occurred as a result of Brady and every deal following it? Plea bargains obstructed justice in Finch by not registering a pedophile on the sex offender database, allowing him to become a repeat offender. Structurally, plea bargains continue courts’ perceptions of sexual crimes as inevitable and part of daily life.19 When sexual crimes are pled to a lesser offense, courts lack regulatory mechanisms to prevent repeat offenses. For instance, courts do not require offenders to register in a database20 or prohibit them from legally purchasing firearms21 in the case of domestic violence, both of which increase recidivism.22 As a result, courts normalize sexual crimes by erasing the legal distinction between sexual crime and non- sexual violent crime. This nullifies the explicit legislative intent in sex offenders’ sentencing requirements and reduces the laws’ deterrent effects. Furthermore, plea deals artificially deflate statistics for sexual and domestic assault convictions by reclassifying them as “regular” assault or battery, sustaining the stereotype of certain sex offenders as “lone wolves” rather than symptoms of a broader sociological phenomena.

In the context of public policy, perpetuating the idea of the “lone wolf” means blocking government-funded research into the causes of sexual and domestic violence. In the 1996 omnibus federal spending bill, a rider was inserted to mandate that no CDC-allocated funds or injury prevention funds could be used to “advocate or 

promote” gun control.23 Known as the Dickey Amendment, the rider acted as a deterrent to gun control research, in fear that federal CDC funding could be summarily withdrawn by Congress, potentially setting back years of federal statistics on gun policy. There is little evidence to say that the same would not occur in the instance of sexual assault. The Trump Administration is already hostile to victims’ rights: It rolled back limitations on forced arbitration contracts for reporting sexual assault in the workplace; removed a Department of Labor rule combatting sexual assault in healthcare settings; and has threatened to cut millions of dollars in sexual assault prevention policy funds for cities that refuse to comply with new immigration standards.24 America is on the brink of explicit anti-victim violence, and “pleading down” is contrary to the interests of victims and advocates alike.

Another response to Brady justifies the curtailing of plea bargains on the grounds that the plea system risks criminal courts’ legitimacy. In no-contest deals, defendants admit to the facts of the case but do not plead guilty to the accused crime.25 While no-contest pleas are taken in only 5 percent of federal sexual assault cases, they severely undercut procedural and substantive courtroom norms.26 Imagine if the defendant in Finch had accepted a no-contest plea; Finch would have been able to publicly proclaim his innocence and not been held responsible for public restoration to his victims.

His continued proclamation of innocence also would have cast doubt on both the facts of the case and the public’s opinion of the judiciary’s punitive and restorative powers. Had Finch denounced his culpability to the press while accepting punishment from the court, he 

would have tarnished the court’s legitimacy. The public would view the court as punishing someone innocent, even if the facts played out differently. Effectively, the ruling makes the perpetrator a social martyr, which further validates the false denial of criminal acts and perpetuates the problematic norms discussed previously.

The other type of problematic plea deal is an Alford plea, which is more egregious than no-contest pleas in harming judicial legitimacy and foregoing victims’ restoration. In contrast to no-contest pleas, in which the defendant does not plead guilty, Alford pleas force defendants to plead guilty while allowing an assertion of innocence in court.27 In essence, Alford pleas supercharge the detrimental effects of no-contest pleas. They delegitimize the courts by granting legitimacy to false claims of innocence in a court of law. Additionally, if a defendant accepts an Alford plea, the court fails its obligation to make a victim whole again. Especially in cases of violent crimes such as sexual assault and rape, the process of convicting a defendant often acts as a morality play by expressing a community’s commitment to safety and educating future generations. However, Alford pleas sidestep this entire process by allowing perpetrators to avoid apologizing, paying restorations, or even acknowledging the suffering they have caused, re- entrenching a cycle of violence that inhibits the victim’s mental and physical healing.

IV . Conclusion

Fundamentally, Alford and no-contest pleas arise as a result of a legal structure that tells attorneys that securing even an unethical conviction is necessary for their reputations. Attorneys with a penchant for guilty pleas are not exclusively unscrupulous and cold-hearted people, but rather a product of the competitive and profit-oriented culture that permeates American law. To morally condemn one attorney’s choice in presenting an Alford or no-contest offer to their indigent defendant solves one problem and nothing more. It is more effective to critique the structures that shape and mold society’s decisions.

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1 Missouri v. Frye, 566 U.S. 134 (2012).
2 Id.
3 Christopher Durocher, The Rise of Plea Bargains and Fall of the Right to Trial, Aᴍᴇʀɪᴄᴀɴ Cᴏɴsᴛɪᴛᴜᴛɪᴏɴ Sᴏᴄɪᴇᴛʏ (April 4, 2018), https://www.acslaw.org/expert forum/the-rise-of-plea-bargains-and-fall-of-the-right-to-trial/.
4 Simon McCarthy-Jones, Survivors of Sexual Violence are let down by the criminal justice system, THE CONVERSATION (March 29, 2018), http://theconversation.com/ survivors-of-sexual-violence-are-let-down-by-the-criminal-justice-system-heres- what-should-happen-next-94138.
5 Victims of Sexual Violence: Statistics, Rᴀɪɴɴ (2019), https://www.rainn.org/ statistics/victims-sexual-violence.
6 Jennifer L. Truman & Lynn Langton, Criminal Victimization, U.S. Dᴇᴘᴛ. ᴏғ Jᴜsᴛ. (September 2019), available at https://www.bjs.gov/index.cfm?ty=pbdetail&iid= 5111.

7 Supra note 5.
8 Gideon v. Wainwright, 372 U.S. 355 (1963).
9 Brady v. United States, 397 U.S. 742 (1970).
10 Albert W. Alschuler, A Nearly Perfect System for Convicting the Innocent, 612 U. Cʜɪ. L. Sᴄʜ. Pᴜʙ. L. & Lᴇɢᴀʟ Tʜᴇᴏʀʏ Woʀᴋiɴɢ Pᴀᴘᴇʀs (February 2017).

11 Aaron Larson, How Do Plea Bargains Work, Exᴘᴇʀᴛ Lᴀᴡ (May 8, 2018), https://www.expertlaw.com/library/criminal/plea_bargains.html.
12 Mary B. Koss et al., Expanding a Community’s Justice Response to Sex Crimes Through Advocacy, Prosecutorial, and Public Health Collaboration, Sᴀɢᴇ (2004). 13 State of Minnesota v. Finch, 80 N.W. 856 (2014).

14 A.J. Lagoe & Steve Eckert, KARE 11 Investigates: Minnesota’s secret sex offenders, KARE 11 (Feb. 2, 2017), https://www.kare11.com/article/news/ investigations/kare-11-investigates-minnesotas-secret-sex-offenders/89-396022916. 15 Id.

16 Id.
17 Supra note 12. 18 Supra note 12.

19 Claire Molesworth, Knowledge Versus Acknowledgement: Rethinking the Alford Plea in Sexual Assault Cases, 6 Sᴇᴀᴛᴛʟᴇ J. ғᴏʀ Soc. Jᴜsᴛ. (2007).
20 Neal Davis, What You Need To Know About Sex Offender Plea Bargain Agreements, Nᴇᴀʟ Dᴀᴠɪs Lᴀᴡ Fɪʀᴍ (Sept. 10, 2018), https://www.nealdavislaw .com/blog/sex-crimes/sex-offender-plea-bargains.

21 Domestic Violence & Firearms, Gɪғғᴏʀᴅs Lᴀᴡ Cᴇɴᴛᴇʀ, https://lawcenter.giffords. org/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/ (last visited Nov. 15, 2019).

22 Id.

23 1 U.S.C. § 244 (1996).
24 Sexual Assault Policy and the Trump Administration, Dᴇᴍᴏᴄʀᴀᴄʏ Fᴏʀᴡᴀʀᴅ (Nov. 1, 2017), https://democracyforward.org/updates/sexual_assault_and_the_trump_ administration/.
25 Micah Schwartzbach, “No Contest” Pleas (Nolo Contendere), Lᴀᴡʏᴇʀs, https:// www.lawyers.com/legal-info/criminal/criminal-law-basics/no-contest-pleas-nolo- contendere.html (last visited Nov. 15, 2019).
26 Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004).

27Alford Plea, Dɪᴄᴛɪᴏɴᴀʀʏ ᴏғ Pᴏʟɪᴛɪᴄs: Sᴇʟᴇᴄᴛᴇᴅ Aᴍᴇʀɪᴄᴀɴ ᴀɴᴅ Fᴏʀᴇɪɢɴ Pᴏʟɪᴛɪᴄᴀʟ ᴀɴᴅ Lᴇɢᴀʟ Tᴇʀᴍs (7th ed. 1992).