A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea
![handle is hein.journals/molr68 and id is 923 raw text is: A Plea Best Not Taken: Why Criminal
Defendants Should Avoid the Alford Plea
Bryan H. Ward
I. INTRODUCTION
Criminal defense attorneys are occasionally confronted with a
conundrum-a defendant who insists that he is innocent, yet against whom the
evidence is overwhelming. Such defendants refuse to admit their guilt, often a
prerequisite to consummating a plea bargain, yet fear going to trial due to the
perceived inevitable result of a finding of guilt. Since 1970 these defendants
have had the benefit of a hybrid plea known as the Alford plea-a reference to
the case of North Carolina v. Alfordl-in which the United States Supreme
Court upheld a plea of guilty made by a defendant who contemporaneously
asserted his innocence to the underlying offense. Since Alford, criminal defense
attorneys have been able to offer their clients the option of maintaining their
claims of innocence while still taking advantage of a plea bargain offer which
would require them to plead guilty.2 Some commentators and criminal defense
attorneys see the Alford plea as a positive step for criminal defendants who wish
to maintain their innocence without losing the ability to lock in a good plea
bargain with a guilty plea.3 As the old adage prophetically states, Be careful
* Director of Clinical Programs and Assistant Professor of Law, Ohio Northern
University College of Law. B.A., 1983, Ohio Northern University; J.D., 1986, University
of North Carolina at Chapel Hill; Ph.D., 1993, The Ohio State University. The author
wishes to thank the law faculty of Ohio Northern University and in particular Professors
Howard Fenton, Scott Gerber and Liam O'Melinn for their useful comments. The author
also wishes to thank Heather Cherepkai and Danielle Groh for their research assistance.
1. 400 U.S. 25 (1970).
2. The Alford plea is not a rarely occurring event. A recent check on Westlaw
discovered 1,319 hits on the phrase Aiford plea in all courts in the past ten years
alone.
3. See, e.g., DAVID RoSSMAN, 2-9 CRIMINAL LAW ADVOCACY § 9.26[2][a-c]
(2002); Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE
L.J. 1179 (1975); Earl G. Penrod, The Guilty Plea Process in Indiana: A Proposal to
Strengthen the Diminishing Factual Basis Requirement, 34 IND. L. REv. 1127 (2001);
Curtis J. Shipley, The Alford Plea: A Necessary But Unpredictable Toolfor the Criminal
Defendant, 72 IOWA L. REV. 1063 (1987); Steven E. Walbum, Should the Military Adopt
an Alford-type Guilty Plea?, 44 A.F. L. REV. 119 (1998). Interestingly, those who have
come out in opposition to the Alford plea have typically claimed that it is too lenient to
the criminal defendant and undermines justice. See, e.g., Steven E. Henderson, Hyacked
from Both Sides-Why Religious Extremists and Religious Bigots Share an Interest in
PreventingAcademic Discourse on CriminalJurisprudenceBasedon the First Principles
of Christianity, 37 IDAHO L. REV. 103, 122-23 (2000) (stating that Alford pleas are
inconsistent with Christian criminal jurisprudence); Jeffrey A. Klotz et al., Cognitive](ViewImageLocal?handle=hein.journals/molr68&div=39&collection=&method=preview&ext=.png&size=3)
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A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea
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