Jana L. Kuss, Endangered Species: A Plea for the Preservation of Nolo Contendere in Alaska, 41 Gonz. L. Rev. 539 (2006).[PDF] [Westlaw] [LexisNexis]
The plea of nolo contendere, though commonly used in Alaska courts, is largely misunderstood. Nolo contendere, in Latin, literally means “I will not contest it.” In a criminal proceeding, it permits a defendant to maintain her innocence while simultaneously consenting to punishment as if she were guilty. Although the plea has been used in America for more than a century, modern nolo contendere jurisprudence varies from state to state and remains a topic of intense debate, particularly as to the collateral civil effects (if any) of such a plea.
This article examines the evolution and development of the nolo contendere plea in the United States and discusses the current state of nolo contendere jurisprudence. In particular, it addresses the similarities and differences between the modern nolo plea as it is used in both Alaska and in the federal system. Next, the article discusses the doctrine of collateral estoppel and explains how Alaska courts have historically applied this doctrine to nolo contendere pleas. In doing so, it traces the development of Alaska case law and highlights the Alaska Supreme Court’s recent decision in Lamb v. Anderson. The article then argues that the court’s decision to bar all civil litigants from contesting the elements of a crime to which they previously pled nolo contendere is flawed both as a matter of law and policy. First, it contends that Alaska courts have improperly applied collateral estoppel to nolo pleas on two grounds: (1) a nolo plea, by definition, obviates the requirement that an issue actually be litigated; and (2) collateral estoppel cannot be fairly applied to nolo pleas because a defendant who pleads nolo may lack the incentive to contest the charges in a criminal case. Second, the article calls for a reversal of the court’s decision in Lamb v. Anderson so as to preserve the nolo plea from extinction. It contends that, as a matter of policy, collateral estoppel cannot properly be applied to the nolo plea because it would render the plea meaningless by abolishing the defining feature of the nolo plea and eviscerating its practical function and utility. The article thus offers reasons, both pragmatic and legal, as to why the Alaska Supreme Court’s recent decision to extend collateral estoppel to nolo pleas is untenable and urges the Court to preserve the nolo contendere plea in Alaska rather than relegate it to an endangered species status…. Read More