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Guilty Pleas Shouldn't Have Wiggle Room

November 04, 2001|LAURIE L. LEVENSON | Laurie L. Levenson is a professor of law and director of the Center for Ethical Advocacy at Loyola Law School

Does pleading guilty mean never having to say you're sorry? Many defendants, like Symbionese Liberation Army activist Sara Jane Olson, want it both ways. They want to get the benefits of pleading guilty without admitting responsibility for their actions. They want to be guilty in the law's eyes but not in the public's.

California law provides many avenues for defendants to engage in this moral sidestep. Often, defendants will be allowed to plea nolo contendere (no contest) instead of guilty to charges. By doing so, the defendant does not admit she is guilty but only states that she will not contest the prosecution's allegations. Other times, defendants assert their innocence to a particular charge but do not challenge the prosecution's overall case.

It is the responsibility of the judge to ensure that a defendant is pleading guilty because she really committed the crime and not because she is being forced to enter the plea. To accomplish this goal, it is not enough for the judge simply to ask the defendant, "Are you guilty?" Yes-no questions do not ferret out the truth. The defendant knows the script. She knows the answer for the court is "guilty," and the answer for the reporters and her supporters is "not really." Courts regularly tolerate this inconsistency as long as they are convinced that the defendant is not being forced to enter the guilty plea inside the courts.

How, then, do we ensure that only guilty defendants plead guilty? The Olson case suggests two immediate answers. First and foremost, it is imperative that the courts require defendants to admit on the record the factual basis for their guilty pleas. It is not enough for a defendant simply to incant the magic word "guilty." She must tell the court (and the world) what she did. By requiring a full factual basis, the court can ensure that the defendant really committed the crime to which she pleads guilty. More important, the court also can ensure that outside forces, such as police corruption or improper coercion, are not forcing the defendant to plead guilty.

For too long, the practice in California courts has been to blindly accept a stipulation by the parties that a factual basis exists. This practice has become popular because it is less time-consuming than conducting a full inquiry of the defendant, and it makes life easier for prosecutors and defense counsel who fear that defendants may balk at their pleas when they must admit the nature of their criminal conduct in open court.

A better model for guilty pleas is that offered by the federal courts. In federal court, defendants are asked to provide or subscribe to a specific factual basis for their plea. Either the prosecutor will state in detail the facts and evidence supporting the charges or the defendant will simply be asked, "What did you do?" Once entered in the record, that factual basis stands for the world to see.

It may also be necessary, especially in cases such as Olson's, for the court to detail at the time of a guilty plea the legal basis for the defendant's guilt. For example, Olson repeatedly has proclaimed her innocence because she claims that she did not "directly" handle the explosives.

From the law's perspective, this is irrelevant. If she aided and abetted the crime or joined in a conspiracy to accomplish it, she is guilty of the offense. Once the legal basis for guilt is on the record, Olson can scream on the courthouse steps that these laws are unfair, but she will not be able to boldly claim she is innocent under those laws.

The problem with guilty pleas is that the courts, including the U.S. Supreme Court, have created too many avenues for a defendant to speak out of both sides of her mouth. Defendants can plead no contest, stipulate to factual bases and admit charges while proclaiming their innocence. While a guilty plea may never mean "I'm sorry," steps can be taken to ensure that, at minimum, it means "I did it."

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