The Alford Plea: A Mysterious Criminal Procedure Device

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By:  Rachel Pressdee, Feature Editor

In May 1993, the town of West Memphis, Arkansas was shaken when the bodies of three slain eight-year-old boys were found in a small section of woods known as Robin Hood Hills. [1] In less than a month, three teenagers were arrested for the brutal murders of these three boys. [2]   The teenagers were tried and convicted: Damien Echols was sentenced to death, Jason Baldwin and Jesse Misskelley were sentenced to life in prison without the opportunity for parole. [3]   Known by the moniker “The West Memphis Three,” they maintain their innocence.


For 18 years, Damien, Jason, and Jesse sat behind bars, having appeal after appeal denied. [4]   Until November 4, 2010, when the Arkansas Supreme Court ordered the trial court to look at newly uncovered DNA evidence and potential juror misconduct, and then determine if this evidence justified a new trial or exoneration. [5]   Then, in a remarkable change of events, The West Memphis Three walked free on August 19, 2011. [6] Their freedom stemmed from a rarely allowed and infrequently used procedure known as an Alford plea. [7]


An Alford plea is “a guilty plea entered by a criminal defendant who does not admit guilt but nevertheless pleads guilty as part of a plea bargain.” [8]   Steven Braga, a D.C. Attorney from Damien’s defense team, said “[t]he Alford plea was the only compromise I could come up with to try to bridge the gap between the State’s absolute refusal to drop the charges and the Three’s absolute demand to maintain their innocence of crimes they did not commit.” [9]   Prosecuting attorney, Scott Ellington, saw the Alford plea as an opportunity to put the case of the West Memphis Three to rest.  Ellington said “[i]t certainly was not a perfect resolution to the case for the state but it was much better than having three trials, trying to convince 36 jurors of the defendants’ guilt using old evidence, failed memories, changed minds, [and] dead witnesses.” [10]


The Alford plea came out of North Carolina v. Alford, where the  Supreme Court of the United States “held that judges do not violate due process by accepting guilty pleas from defendants who simultaneously assert their innocence.” [11]   In 1963, Henry Alford was indicted for first-degree murder, which at the time automatically called for the death penalty when the conviction followed a plea of innocence. [12] Alford asserted his innocence, but because of the strong evidence against him, his attorney advised him to plead guilty to a reduced charge. [13]   At trial, Alford took the stand and swore he did not commit the murder:


After giving his version of the events of the night of the murder, Alford stated:

“I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t        shot no man, but I take the fault for the other man. We never had an argument in our life and I just          pleaded guilty because they said if I didn’t they would gas me for it, and that is all.”

Q [by Alford’s attorney]. And you authorized me to tender a plea of guilty to second degree murder          before the court?

A. Yes, sir.

Q. And in doing that, that you have again affirmed your decision on that point?

A. Well, I’m still pleading that you all got me to plead guilty. I plead the other way, circumstantial              evidence; that the jury will prosecute me on-on the second. You told me to plead guilty, right. I don’t-        I’m not guilty but I plead guilty. [14]


According to the Court, “[o]rdinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant’s admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind.” [15]   However, it quantified that “while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty.” [16]   Therefore, a defendant “may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” [17]


After this case, defendants would be permitted to profess their innocence but also plead guilty if the plea is “favorable to the defendant and the government can demonstrate a strong factual basis for the plea… even where the defendant swears under oath, under penalty of perjury, that he or she did not commit the offense to which the plea of guilty is being entered.” [18]


The Alford plea has plenty of negative aspects.  “[I]nnocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime—the real suspect is never brought to justice.” [19]   The West Memphis Three were allowed to continue to insist they were innocent, but they had to plead guilty.  They compromised their chance to be exonerated during a new trial to instead be permitted to leave the courthouse with time served. [20]


“When we told prosecutors we were innocent, they put us in prison for life. Now when we plead guilty, they set us free!” – Jason Baldwin. [20]


[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.




[10] Id.

[11] Curtis J. Shipley, The Alford plea: A Necessary but Unpredictable Tool for the Criminal Defendant, 72 Iowa L. Rev. 1063, 1063 (1987).

[12] Id. at 1064-65.

[13] Id. at 1065.

[14] James W. Diehm, Pleading Guilty While Claiming Innocence: Reconsidering the Mysterious Alford plea, 26 U. Fla. J.L. & Pub. Pol’y 27, 30-31.

[15] North Carolina v. Alford, 400 U.S. 25, 32, 91 S. Ct. 160, 164 (1970).

[16] Id. at 167.

[17] Id.

[18] Diehm, supra note 14, at 32.




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