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Criminal Justice and Fictional Crimes

W. Scott Cole

Posted on June 14, 2020 19:28

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There are many people in prison or on probation and parole carrying convictions for crimes they either did not commit or crimes that do not exist. At the time of sentencing, all parties involved (judges, prosecutors, defense attorneys, and even defendants) are aware of this fact, yet the crime is entered into the record and the defendant is sentenced to the fictional crime. It is an accepted part of the justice system.

People do not go to trial after being charged with a fictional crime or a non-existent crime. Although it is true that some are convicted after trial of crimes, due to a unique interpretation of the existing law by the prosecution, result in sentencing for acts that the law they were convicted of was not intended to make criminal. That, however, is another issue for another day.

What we are talking about here is what the justice system itself calls fictional pleas. A fictional plea is one in which a defendant pleads guilty to a crime he did not commit, and in some cases to a crime that does not exist. The judge, the prosecutor, the defense attorney and the defendant all have full knowledge of the circumstances, yet they all agree that a fictional plea is the most beneficial way to proceed.

The use of fictional pleas has increased as prosecutors and judges have started looking more at the collateral consequences of a crime. One example would be a legal immigrant to this country caught in possession of marijuana. A conviction of that crime would cause him to be deported. As a consequence, his family faces a choice of either being voluntarily deported with him, even though they committed no crimes, or they have to live in this country with no husband or father. I think everyone can agree that choice would not be fair to the man’s family. As a way around the entire deportation issue, the man pleads guilty to inhaling toxic vapors … huffing. He did not commit the crime, but his guilty plea to it allows the court to convict and punish him for a crime that does not trigger deportation requirements.

An example of a fictional plea to a non-existent crime would be the defendant who is charged with assault. All the parties agree that the collateral consequences, such as mandatory minimum sentences, would not be appropriate. In order to get around that, the man pleads guilty to attempted reckless assault. There is and never will be such a crime on the books because it is impossible for anyone to attempt to be reckless, but the defendant pleads guilty to it, the judge accepts the plea, and sentences the man to a crime that would be impossible to commit even if it did exist.

However, there are problems with fictional pleas (you knew I was going to say that, didn’t you). American courts can be envisioned as a table. The four legs of the table are Truth, Evidence, Fact-finding and Guilt or Innocence. With a fictional plea, three of those legs are cut off. The table can no longer stand, and the figures that justice advocates on both sides rely on get skewed to the point that they are no longer accurate.

That raises the question: If the courts are no longer finders of fact and become a place where truth is just not important, how valid is our criminal justice system?

W. Scott Cole

Posted on June 14, 2020 19:28

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