Justice Department's Policy of Opposing Nolo Contendere Pleas: A Justification

¶1For many, a criminal defendant is either guilty or innocent and should thus either assume responsibility for her crime by pleading guilty or contest her guilt and stand trial.[1] The nolo contendere plea provides a third alternative, where the defendant declines to contest guilt, but instead waives her right to trial and consents to be punished as if guilty.[2] Unlike a guilty plea, the nolo contendere plea is inadmissible in subsequent civil proceedings.[3] This plea has ancient origins, dating back to medieval England,[4] and has long been allowed in the American federal courts.[5] When the Federal Rules of Criminal Procedure were adopted in 1946, the nolo contendere plea was retained in Rule 11 and remains an option to this day.[6] Despite its longstanding use, the plea has been criticized by many, often in strong language.[7] Judge Learned Hand called it a “foolish concept;”[8] a district court called it a “mockery” of the law under which the plea was frequently entered.[9] In 1953, Attorney General Brownell issued a directive which stated that the nolo contendere plea was “one of the factors which has tended to breed contempt for Federal law enforcement.”[10] These critics argued that the nolo contendere pleas left the public confused about the defendant’s guilt, led to low sentences and allowed some guilty defendants avoid collateral consequences of their guilt.[11] Some courts refuse to accept nolo contendere pleas across the board;[12] the Department of Justice instructs federal prosecutors not to consent to them.[13]