On a recent episode of Hi-Phi Nation, Barry Lam looked into the collateral consequences of felony convictions—penalties like disenfranchisement, deportation, and sex offender registration that follow people long after they have served their sentences. Many judges, prosecutors, and defense attorneys question the morality of these laws and have tried to skirt them in clever ways. The result is an entire shadow justice system unaccountable to facts and truth. In this excerpt from the episode, Lam speaks with professor Thea Johnson of the University of Maine School of Law about an unintended side effect of the proliferation of collateral consequences: “fictional pleas.” This transcript has been condensed and edited for clarity.
Barry Lam: The moral qualms people have with collateral consequences hit a lot sooner than judges at sentencing. They hit prosecutors and defense attorneys also. When that happens, everyone in the system looks for a way to bypass the laws.
Thea Johnson: A fictional plea is a plea of “guilty” to a crime that the defendant did not actually commit, for the purposes of avoiding a particular collateral consequence, like sex offender registration, federal immigration consequences like deportation. I’m talking about not innocent defendants, but defendants who have committed some crime but for whatever reason they don’t want to plead guilty to the crime that would match their actions. Instead, they want to plead guilty to something else that won’t trigger these additional penalties.
Lam: Fictional pleas are pervasive. Every defense attorney I talk to says they happen so much they just call them pleas. It’s not even worth naming. They’re the norm, not the exception.
Johnson: So here’s a real example from my research. Defendant is charged with a marijuana sale. Most drug cases will automatically trigger immigration consequences, and it’s in those cases where defendants really need to figure out how to scrub the record of the drugs. They need to figure out how to make the drugs disappear. So the defense attorney and the prosecutor arrange a plea bargain to inhaling toxic vapors—essentially, huffing. Huffing will not have immigration consequences.
Another example: Defendant is charged with a felony sex crime. That felony sex crime will carry sex offender registration. Because the defendant is living in homeless shelters and has a somewhat stable housing situation, he will lose his shelter housing. So in order to avoid sex offender registration, the parties get together and decide to let him plead guilty to three misdemeanor sex offenses. And by pleading to the misdemeanors, he then avoids sex offender registration. But the prosecutor can then stack or run consecutive sentences and so get a fairly serious sentence for the defendant.
Lam: To be a fictional plea, according to Thea Johnson, there has to be a wide-enough gap between the facts of the crime and the crime to which the defendant is pleading guilty. Two really common pleas are solicitation and misprision. They’re kind of a go-to fiction for people arrested on felony drug crimes that carry heavy collateral consequences. Solicitation is when you get someone else to commit a crime, and misprision is failing to report a crime. There are handbooks on how to get felony drug crimes pleaded down to offenses like these. And then there are plea bargains that are so fictional the crimes aren’t even real.
Johnson: A different type of fictional plea is defendants pleading guilty to nonexistent crimes—crimes for which they could not be convicted in front of a jury because the crime doesn’t exist. It does not exist in the statute book.
Lam: You’re going to have to explain what that is, how that is even possible.
Johnson: So let’s say, for instance, defendant is charged with an intentional assault, and the parties decide that, for whatever reason—to avoid a mandatory minimum, to avoid collateral consequences, to avoid immigration consequences—they want the defendant to plead guilty to an attempted reckless assault. Well, there’s no such thing as an attempted reckless assault in the law. You can’t attempt to be reckless. And yet you can find many examples of courts accepting pleas to attempted reckless assault or attempted manslaughter, which carries a recklessness mens rea or mindset. They allow that because the parties come to some conclusion that that will benefit the defendant and it will benefit the prosecutor by ending the case in a favorable way, and they’ll allow the defendant to plead to a crime which does not exist.
Lam: You might be wondering: Of course a defendant and a defense attorney would want a fictional plea if they can get it. But why would prosecutors and judges stand for it?
Johnson: They really don’t believe that some of these punishments are appropriate. In the case of the prosecutor who agrees to plead one felony sex offense to three misdemeanor sex offenses, the prosecutor really was concerned about all the consequences of sex offender registration that would flow for that particular defendant. Another reason might be that it’s efficient. They want to get the case done. Defense wants to get the case done. Plea bargaining is very much a negotiation, it’s about getting to yes, and this is a way to get to yes.
Lam: It’s also a reason these things don’t tend to go high up to appellate courts or the Supreme Court. Who’s going to appeal a fictional plea when everyone ends up feeling like they got what they wanted?
Johnson: I think with judges, they have very full dockets, and to the extent that they can help facilitate pleas that will clear up their dockets and resolve cases in ways that the defendant thinks is beneficial, the prosecutor thinks is beneficial, that’s a net positive for the system.
Lam: It’s a win-win for everyone. Fictional pleas yield happy judges, prosecutors, and many defendants don’t have to carry the burden of lifetime punishments. What’s the cost, then?
Johnson: Current fictional pleas become future truth. There’s no way to say in the future, “That wasn’t really what I did.” That becomes the truth of what you did and what you committed, and it follows you wherever you go if you’re the defendant.
Lam: And if you’re a prosecutor or a judge or a legislator or a citizen, you should have no trust at all that the criminal justice system is giving you an accurate picture of crime in your community. You can’t trust the official record to be a record of the truth.
Johnson: We’re in a moment where we are turning to data to make decisions about the criminal justice system. If we don’t have any sense that a conviction corresponds to truth, then how can we rely on that data to make decisions about the system and about how to reform the system?
Lam: Just how many sexual assaults are there, when you can plead from one act to three misdemeanors, or if you can just plead solicitation? Just how much drug crime is there really, when conviction rates are not reliable because of fictional pleas? And what about the bigger issues, like whether there is any institution left in America whose aim is evidence and fact-finding?
Johnson: I am concerned if the criminal justice system becomes a place where truth doesn’t have value, or where we don’t have as a foundational aim getting at the truth. If we just sort of let the system continue to function the way it is, fictional pleas are getting us closer to this idea that we’re just going to give up on trials and we’re going to give up on truth-seeking. The criminal system has become both a black box that we can’t really get access to and also a place where truth doesn’t matter that much anymore. And I suppose I’m concerned about accepting that.