A Question About Truth, Courts, Pragmatism, and Justice

Michigan’s court rules, like those in some other states, provide that if a criminal defendant pleads guilty, the court “must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading guilty.” This rule allows a court to accept a guilty plea from a defendant to an offense that she did not commit, so long as there is "support for a finding" that the defendant committed the offense originally charged (and for which she may maintain her innocence). In 2019 and again this year, the Michigan Supreme Court published for comment a proposed amendment to the court rules that would have eliminated the ability of a criminal defendant to plead guilty to a crime she did not commit.

When the proposed rule was first published, criminal defense attorneys, prosecutors, and judges were unified in their opposition to it, mostly because allowing defendants to plead guilty to crimes they did not commit, these lawyers argued, promotes just outcomes in individual cases and efficiency for the system overall. To put the plea system in context, from 2017 to 2019, circuit courts in Michigan disposed of an average of 44,602 cases per year by way of a verdict or a plea, with an average of only 1,543 cases (3.46%) being decided by a jury or bench verdict.

Here are some of the arguments put forward by prosecutors, defense lawyers, and judges against the proposed amendment to the court rules (again the amendment would have eliminated the ability of a criminal defendant to plead guilty to a crime she did not commit):

The benefits of negotiated plea agreements to resolve criminal cases short of trial are numerous and well-known. Defendants can minimize their exposure to incarceration and receive shorter sentences. Crime victims may be spared the experience of testifying about a traumatic experience and can take comfort in the finality that a plea agreement brings. Trial courts may move cases expeditiously through the system, allowing those defendants whose guilt is not at issue to waive their right to a trial and be sentenced quickly . . .

The parties to a criminal case are in the best position to negotiate a meaningful and appropriate plea resolution, taking into account the interests of the defendant, the interests of justice, the safety of the public, and the input from the victim(s) of the crime. The rules, as presently worded, allow the parties to do this and to satisfy the requirement that there be a factual basis placed on the record to support a finding of guilt (although perhaps to a charge different from the one to which the defendant is pleading guilty) . . .

There are many factual situations where both sides of a criminal case are served by a plea to a lesser offense, but the factual elements of that lesser offense simply did not occur. A few examples to illustrate:

• A defendant is charged with Felonious Assault, a four-year felony, for threatening a victim with a weapon. The parties wish to resolve the case with a plea to Aggravated Assault, a one-year misdemeanor. But because the victim suffered no aggravated injury as required for the misdemeanor, the defendant would be unable to provide a factual basis to the lesser charge.

• A defendant is charged with Criminal Sexual Conduct Third Degree based solely on a statutory rape theory. While the parties might wish to resolve the case with a plea with Assault with Intent to Commit Penetration or Fourth Degree Criminal Sexual conduct, the defendant would be unable to provide a factual basis to lesser charges because of a lack of force, coercion, or assault.

• A defendant is charged with Carrying a Concealed Weapon, a five-year felony. There is almost no applicable relevant misdemeanor for which a defendant could provide an adequate factual basis.

• A defendant is charged with Assault and Battery or Malicious Destruction of Property. The parties wish to resolve the case with a plea to Disorderly Conduct. But because such a violation requires intoxication in a public place, a defendant might be unable to provide a factual basis to that charge.

• A defendant is charged with Retail Fraud Third Degree. The parties might wish to resolve the case with a plea to a lesser charge of Trespassing. Again, the defendant would be unable to provide a factual basis to the lesser charge.

Here are some of the arguments for the proposed rule:

Fictional pleas sever the proper and accurate relationship between the facts of the offense, the legally defined offense, and the sentence imposed by the court, and may ultimately lead to diminished confidence in our system of justice. As the Iowa Supreme Court said, "when charges are filed that are known to all to be bogus and guilty pleas to those charges are accepted in order to allow defendants to escape the adverse consequences of the offenses they actually committed, there can be only one result: respect for the court system is diminished and the public’s confidence in the integrity of the criminal justice system is seriously undermined. While the disposition of a traffic offense in the manner employed here may be the expedient way to dispose of a citation to the satisfaction of the parties involved, it sends the wrong message to the public. It makes a mockery of the justice system when a defendant is punished for violating a statute that he unquestionably did not violate."

The criminal conviction becomes a suspect unit of analysis for counting crimes, for making restitution awards, for parole, and for sentencing guidelines. In the absence of an accurate plea, officials find themselves searching for the “real” offense concealed behind the fictional plea in an attempt to restore the proper fit between the sanction and the charge, between the sentence and the purpose of sentencing — whether it is just deserts, restitution, rehabilitation, or vengeance. As a result, the public comes to assume that convictions for lesser offenses invariably mask greater ones . . .

I think we must have a very strong norm of truth in government and specifically in criminal proceedings. Any departure from that — even for concrete short-term benefits — will tend to habituate everyone involved to departures from the truth, with greater, though harder to perceive, harm over time. Aristotle told us about habituation; Hayek explained that many of our evolved rules and customs (such as honesty, or not wearing pajamas outside the house) have benefits that we don't understand or even perceive, but that are often critically important benefits nonetheless; and Hume warned against the danger of discounting more important long-term interests in favor of less important but immediate gains. So yes, I think having the prosecutor and defendant attest to falsehoods to smooth out a plea deal is a terrible idea. What insanity to tell a defendant whom we're trying to rehabilitate to lie under oath.

What do you think? Should courts be allowed to take "fictional pleas" to charges that everyone agrees the defendant did not commit, but where all the parties to the case want to resolve it by way of that fictional plea, and all feel the proposed resolution will be "just"?