Friday, July 20, 2018 · by Jeff Adachi
NOTE: This op-ed will appear in Friday’s Daily Journal to declare that we have the right to plead no contest, a right that San Francisco courts have denied our clients. While it is true that the taking of a no contest plea is subject to the court’s permission, I argue that their decision to deny it in every case is an abuse of discretion.
THE RIGHT TO PLEA NO CONTEST IN A CRIMINAL CASE
By Jeff Adachi & Yali Corea-Levy
California law provides for three common pleas in a criminal case: not guilty, guilty and no contest. In the San Francisco courts, however, an accused is not given the opportunity to plead no contest. Witness the following colloquy from a case heard last month:
THE COURT: Sir, what is your plea to violating Penal Code Section 487(a) as a felony, as alleged in Count II of the amended information?
THE DEFENDANT: No contest.
THE COURT: He has to plead guilty.
MR. ADACHI: No contest is the same as guilty.
THE COURT: Well, for the purposes of felonies, we only accept guilty pleas.
MR. ADACHI: Since when?
THE COURT: About 22 years.
MR. ADACHI: I have been here when we’ve entered no contest pleas before.
THE COURT: Not on felonies. On misdemeanors.
Although the district attorney did not object, the court refused the defendant’s attempt to enter a no contest plea.
The no-contest plea originates from the Latin phrase “nolo contendere,” which essentially means that “I do not wish to contend” the charge. Black’s law dictionary defines “nolo contendere” as “I will not contest it.” Historically, the principal difference between a plea of guilty and a plea of nolo contendere is that a no-contest plea could not be used against a defendant in a civil action. However, this difference was vitiated in 1982 when the Legislature rewrote the statute to provide that no-contest pleas in a felony case could be used as admissions in later civil proceedings, limiting the exclusion in civil cases to misdemeanor cases only.
So why should it matter to an accused? Why would it be important to an accused to say the words “no contest” rather than “guilty” if the two are treated the same? A no-contest plea more realistically represents the reason why an accused decides to end a criminal prosecution in favor of a plea bargain or settlement. It is a nationally recognized phenomenon that those accused with crimes in the U.S. often plead guilty in order to avoid a trial or to reduce the exposure that they face if convicted of the most serious offense. Jed Rakoff, a senior judge of the Southern District of New York, explained that the fear of trial, the possible consequences (i.e., jail), and loss of time often lead to guilty pleas — even where the accused maintains his or her innocence: “inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.”
Judge Rakoff cites the Innocence Project, which has shown that out of 300 people who were wrongfully convicted of rape or murder, about 10 percent had pleaded guilty. He reasons that this inconsistency can only be explained “because, even though they were innocent, they faced the likelihood of being convicted.” The same logic applies to nonlife crimes. Rakoff cites the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School), whose records show that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (again, about 10 percent) involved false guilty pleas.
It is not difficult to see why this happens. The typical person accused of a crime combines a troubled past with limited resources. He thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.” In this regard, a no-contest plea acknowledges the nuances of a guilty plea through a largely symbolic act.
If in fact people do choose to plead guilty in order to avoid other potential consequences, what is the harm in allowing a no contest plea? It is largely symbolic. But then again, it gives a person who decides not to contest the charges and ability to say exactly that. And the implications in terms of inequity are well established. According to the Bureau of Justice Assistance, which tracks criminal justice statistics, between 90 and 95 percent of those accused of crime in federal and state court choose to resolve their cases without a trial.
Judge Rakoff blames overcharging by prosecutors. This has always been true, but the pressure has overwhelmed an ever increasing number of innocent defendants to plead guilty. In the words of Professor Michelle Alexander in her book “The New Jim Crow,” “[n]ever before in our history … have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe … [t]he pressure to plead guilty to crimes has increased exponentially.” Alexander quotes the U.S. Sentencing Commission acknowledging, “the value of mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip.” Alexander notes that this “bargaining chip is a major understatement, given its potential for extracting guilty pleas from people who are innocent of any crime.”
And due to the overrepresentation of minorities in the criminal justice system, the pernicious effects of the practice have disproportionally powerful racial effect. For instance, felony pleas may affect the right to vote and ability to procure a job post-conviction. As Alexander notes, hundreds of years after the emancipation proclamation, “America is still not an egalitarian democracy.”
A no-contest plea recognizes the fact that many disenfranchised poor people and people of color don’t have the option of taking the risk or taking the time (which almost certainly translates to money) it takes to go to trial. So why not give them the right to declare themselves unable and unwilling to state nothing other than “I choose not to contest these charges”?
This is particularly true when a no-contest plea gives the prosecution the benefit of a conviction and is not an affirmative proclamation of innocence by the accused. Prosecutors may argue that they need the accused to say the word “guilty” as a form of allocution or to protect against a subsequent claim of factual innocence. But the “California Judges Benchguide: Felony Arraignment and Pleas” advises judges that a “plea of no-contest has the same legal effect as a plea of guilty and is subject to the court’s approval.” The guide uses no contest and guilty interchangeably throughout. And, unlike an Alford plea, where an accused proclaims innocence but decides to enter a plea of guilty, a plea of no contest is not an affirmative proclamation of innocence by the defendant.
San Francisco appears to be out of step with the rest of the state: No-contest pleas to felony charges seem to be the norm in most California counties. Out of 15 chief defenders that responded to a survey, all but one responded that no-contest pleas were not only allowed in felonies, but the norm. Given that ratio, it seems reasonable to conclude that in most counties the no-contest plea is the norm in felonies.
The San Francisco court needs to change its practice of disallowing no-contest pleas. It’s the fair, humane and just way to allow a person the dignity of entering a plea when the accused simply seeks to end the criminal prosecution.
Jeff Adachi is the Public Defender of the City and County of San Francisco. Yali Corea-Levy is a San Francisco deputy public defender.