Pleading Not Guilty Revisited

My post on the guilty pleading not guilty has generated some attention.  In this post, I will add a few more words to the discussion.

First of all, I want respond to Scott Greenfield’s concern about my use of the word “ethical.”  I chose this word because it is often communicated to me by people I talk to that defending the guilty is somehow a sin or moral failing; I am a bad and immoral person by what I do.  Put differently, they may say what I do is “icky” or that representing “those people” is  “plain wrong.”  It is this same thinking that says it is a sin or moral failing for a guilty person to plead not guilty.  In my previous post, I was attempting to respond to an opinion that many on “the street” hold. In particular, the person I used as my springboard felt that something dishonest happens when a guilty person pleads not guilty.   In hindsight, I should have left the word “ethical” out and instead focused on dishonesty — the concern of the person I was responding to.

Second, I want to respond to a comment left by the anonymous Snacky.  Snacky wrote the following comment.

Interesting post. But I believe that pleading guilty, if one actually is, is probably the right thing to do:

Why force the prosecution to carry and meet this burden? Why cause the court time and money to be wasted?

I don’t see how your argument is distinguished from “plead not guilty because you can.”

I think there are other reasons as well that it’s not ethical to plead not-guilty if one knows that one actually is:

For example, the effect of the plea on the public discourse and culture. I think I could argue that it’s detrimental to public confidence in the legal system to have guilty people plead not-guilty, and maintain their innocence.

I think Snacky’s comment is naive; it lacks an understanding of what really goes on in the criminal justice system.   For one thing, Snacky’s imagined cost savings are more illusory than real.   The judge, the prosecutor, the bailiffs, etc. are all salaried.   If David Defendant enters a guilty plea on his first or tenth court appearance, the cost to taxpayers will likely be the same.   This is not to say that any given case isn’t going to cost the system some extra money; that’s not true.  All I am saying is that letting the wheels of justice grind a little bit probably isn’t “wasting” the resources that  Snacky imagines are being wasted.

With that said, the criminal justice system costs money and that is fine by me.   All criminal defendants have rights.  Where there is right there is a duty.  The accused has a right to due process and the government has a duty to provide that process.  This is our system. This is the system that “We the People” established.  It takes resources to fund this system.  How a person could be sinful, unethical, or morally wrong by exercising the rights given to him by his system is beyond me.

Snacky also appears to imagine a system where a defendant can walk into court on his first appearance and receive Justice.  The criminal justice system isn’t a drive through where a Class 2 can be ordered, wrapped, and delivered in only a few short minutes.  The real criminal justice system is much more messy and slow.   At a first court appearance, chances are the prosecutor hasn’t given any meaningful thought to the offer he or she gives to an accused person.  Of course, this assumes he or she hands the accused a plea offer at all.  At this point in time, the prosecutor probably also has not scrutinized the facts in the police report or talked to the witnesses involved in the case.  Furthermore,  the judge will know little to nothing about the facts of the case.   If the accused were to plead guilty, the judge may ask for a factual basis for the plea, but the judge will probably be more concerned about creating a record than listening to the words the prosecutor recites.   By pleading not guilty and having the assistance of competent counsel, the accused ensures that some meaningful thought is put into his case and sentence.   The wheels of justice grind slowly; a person speeds them up at his peril.

Snacky’s concern about the impact of a not-guilty plea on the public confidence in the legal system is, well, strange. Who says to themselves, “I shall plead guilty and restore confidence in the legal system?” And why should a person say that to himself? Are men made for the Sabbath or the Sabbath for men? Are men made for the legal system or is the legal system made for men?  I also think this suggestion by Snacky has no connection to reality.  Factually guilty people plead not guilty all the time.  Is this really causing the public to lose confidence in the legal system?  I will concede that people make comments about people getting off on technicalities, and our system isn’t perfect, but it is a good system nonetheless.  I think most people have confidence in our system regardless of the problems it has.

These are just a few thoughts of mine; I am not attempting to make a complete or systematic argument. This site is just a blog and nothing more. I hope folks like Greenfield and Bennett, whose sandals I am not worthy to untie, weigh in some more on this topic.

Jeremy Richey


Scott Greenfield weighs in and says, “To utter . . . [‘not guilty’] in response to ‘how do you plead’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Ken Lammers dissents and argues that  “a plea of not guilty is an immoral act.”


Mark Bennett: “[Prosecutors] are there to put lawbreakers in boxes (actual and metaphorical), not to offer them absolution. In other words, if you want to confess, see a priest.”

Walter Reaves: “Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.”

David Giacalone: “There are a lot of words and terms that lawyers use differently than the rest of humanity.”

1 Response to “Pleading Not Guilty Revisited”

  1. 1 Mark Bennett January 3, 2009 at 6:18 pm

    “It’s detrimental to public confidence in the legal system” is an argument we’ve seen before.

    It’s an ignorant argument.

    The criminal “justice” system is what it is, and it gets the public confidence that it deserves: very little. The best that can be said for it is that it’s better than any other system yet created.

    Anyone who thinks that the criminal justice system is an inerrant or even acceptably accurate means of punishing the wicked but not the righteous hasn’t spent enough time in the criminal courthouse. Not only do (factually) guilty people get set free, but also (factually) innocent people are convicted, often because they’ve pled guilty.

    Public confidence in the criminal justice system is not only misplaced, but also dangerous.

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Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.