nolo contendere
nolo contendere
Latin
“I do not wish to contest — the plea that admits nothing, accepts punishment, and leaves no trail of guilt that a civil plaintiff can follow; the American legal system's most useful diplomatic fiction.”
Nolo contendere is a Latin phrase that compounds nolo — the first-person singular present indicative of nolle, a contracted form of non velle, meaning 'I do not wish,' 'I am unwilling,' or 'I refuse' (from non, not, and velle, to wish or will) — with contendere, the infinitive meaning 'to contend,' 'to compete,' 'to strive,' or 'to dispute' (from con-, together, and tendere, to stretch, to aim). The Latin verb nolle survives in English in 'nol-pros' or nolle prosequi (I do not wish to prosecute), by which prosecutors dismiss charges. Tendere gives English 'contend,' 'tend,' 'tension,' 'intense,' 'extend,' and 'attention.' Nolo contendere thus means 'I do not wish to contest' — a statement that refuses to fight the charge without admitting that the charge is true.
The plea of nolo contendere has a different legal effect from a guilty plea in the specific context for which it was primarily designed: civil liability. When a defendant pleads guilty to a criminal charge, that guilty plea is typically admissible in subsequent civil litigation as an admission of the underlying facts. A defendant who pleads guilty to securities fraud, for instance, makes it considerably easier for the investors he defrauded to win a civil damages action, because the criminal plea establishes the relevant facts. Nolo contendere avoids this: the defendant accepts the criminal conviction and its punishment without making the admission of fact that would follow him into civil court. The court treats it as equivalent to a guilty plea for the purposes of the criminal case; the civil plaintiff is left to prove her case independently.
The plea was used famously in the United States in the case of Vice President Spiro Agnew, who resigned the vice presidency in 1973 and entered a nolo contendere plea to a charge of federal income tax evasion. The plea allowed him to accept the conviction — a fine and probation — without technically admitting to having evaded taxes, leaving him in a stronger position to dispute liability in any civil proceedings and, perhaps more importantly for a politician, to maintain some form of verbal deniability about what he had done. The plea has been used in numerous high-profile corporate and white-collar criminal cases for exactly the same reasons: to settle a criminal matter without creating an automatic admission that fuels subsequent civil litigation.
American federal courts permit nolo contendere pleas only with the court's consent, and the plea is not available in all jurisdictions. Many states do not recognize it; in federal court, Rule 11 of the Federal Rules of Criminal Procedure requires judicial approval and specifies that the court must consider the parties' views and the public interest before accepting a nolo plea. The public interest consideration exists because nolo, as a matter of policy, can appear to allow defendants to escape moral responsibility while accepting legal consequences — a bargain some courts find troubling. The Latin phrase that says 'I do not wish to contest' turns out to express one of the more philosophically interesting propositions in criminal procedure: that one can accept punishment without acknowledging wrongdoing, and that the legal system finds this acceptable under certain conditions.
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Today
Nolo contendere institutionalizes a distinction that many people find uncomfortable: the distinction between accepting punishment and admitting wrongdoing. The criminal law generally requires, in most plea situations, that a defendant allocute — stand up and state what they did. The ritual of the guilty plea includes the verbal acknowledgment of guilt, which is supposed to have moral as well as legal significance. Nolo contendere bypasses this ritual. The defendant accepts the consequences while refusing the confession.
The discomfort this creates is legitimate. A criminal justice system that allows defendants to avoid the public acknowledgment of wrongdoing — that accepts consequences without culpability — may be serving efficiency and civil litigation strategy at the expense of the moral dimension that punishment is meant to carry. At the same time, the plea serves genuine interests: it resolves cases without trial, it avoids the automatic civil exposure that a guilty plea creates, and it acknowledges that legal guilt and factual guilt are not always the same thing. The Latin phrase that says 'I do not wish to contest' sits at the intersection of efficiency, strategy, and moral philosophy, which is roughly where most of American criminal procedure lives.
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