Two Wrongs Make a Wrong: A Challenge to Plea Bargaining and Collateral Consequence Statutes through Their Integration

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The prevalence of plea bargaining in the U.S. criminal justice system is undisputed, though the desirability of such a system has been a subject of considerable debate for decades. (1) Regardless of the constitutional improprieties and injustices that both sides of the debate recognize as flaws inherent to the system, both sides acknowledge that plea bargaining derives most of its justification from the principles of contract. (2) The individual defendant exchanges certain constitutional rights for a more lenient sentence with absolute certainty. (3) The prosecution, as the agent of the state, foregoes the opportunity to pursue a higher sentence for the defendant and saves the time and expense of proving the defendant guilty beyond a reasonable doubt. (4) A closer inspection of the particulars of the plea bargaining system reveals that the plea bargain is not the classical theoretical bargain. (5) However, the basic justification for its existence is that, at its most fundamental level, the plea bargain is a mutual exchange of considerations between two parties: the individual defendant and the state. (6)

Much like plea bargaining, postconviction civil penalties, arising out of what are known as collateral consequence statutes, have been part of the U.S. criminal justice system for a considerable period of time. (7) At least with respect to convicted sexual offenders, the use of collateral consequences to punish individual defendants further after sentencing has become a pervasive practice in the United States. Most notably, on September 13, 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act) was signed into law. (8) Individual states have been creating their own systems of sexual offender registration since 1947; (9) however, with the enactment of the Wetterling Act, states are now required to devise and implement sexual offender registration systems. (10) While this was by no means the first instance of a collateral consequence statute, nor the beginning of the trend towards imposing civil penalties against convicted sexual offenders, (11) the passage of the Wetterling Act represented the first federal imposition of collateral consequences upon any criminal defendant convicted of a sexually based offense. (12) Through subsequent amendments and bills, Congress has supplemented this initial mandate with many more requirements for the state registration systems, most recently in the Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act). (13)

Plea bargaining and collateral consequence statutes are two entirely separate practices, but are similar in the sense that neither seems to comport with the classic model of criminal justice: a trial followed by a sentence imposed by the trial court. Additionally, both practices are ubiquitous in the modern criminal justice system. By way of illustration, in the federal court system, guilty pleas account for 96% of convictions, (14) and over forty different post-sentence restrictions automatically apply to individuals convicted of felonies. (15) Accordingly, any analysis of collateral consequence statutes in the modern criminal justice system needs to be conducted with an eye toward plea bargaining, and vice versa. And because these individual practices are so prevalent, the constitutional analyses and theoretical bases of plea bargaining and collateral consequences should be revisited with emphasis on their integration.

This Comment focuses on the sexual offender collateral consequence statutes, and the Walsh Act in particular, for two reasons. First, sexual offender collateral consequences have often been (and now must be, per the Walsh Act) applied retroactively. (16) In other words, defendants who were convicted and served their sentences completely prior to the enactment of a collateral consequence statute are still subject to registration and notification requirements, (17) Second, offenders are assessed civil penalties by way of the collateral consequence statute based solely on their previous conviction. …