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Publication Date

Summer 2019


A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky. Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system – including defendants, prosecutors and judges – use fictional plea for the purposes of avoiding collateral consequences. This Article proposes that in any individual case, a fictional plea may embody a fair and just result – the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process – namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process. In this sense, fictional pleas serve as a case study in criminal justice problem solving. Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution. The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself. Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

Publication Title

Indiana Law Journal





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