Two wrongs make a wrong: a challenge to plea bargaining and collateral consequence statutes through their integration.

• Author: O'Keefe, Kevin

1. INTRODUCTION

   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. (18) A defendant's particular conviction determines whether and how the collateral consequence statute is applied. (19) There are certainly other retroactively applied collateral consequences, but sexual offender registration systems under the Walsh Act provide the clearest example of how the legal justifications for collateral consequence statutes may not comport with the criminal justice system as it functions today.

   Courts have upheld the use of plea bargains to waive constitutional rights in exchange for a presumably more lenient sentence, most notably in Brady v. United States. (20) Similarly, retroactive collateral consequence statutes have been found constitutional in response to challenges based on both the Ex Post Facto Clause (21) and procedural due process requirements. (22) The problematic aspect, and the thrust of this Comment, is that retroactive collateral consequence statutes violate the basic justifications for the guilty plea. In short, when an individual defendant bargains with the state for a specific, more lenient sentence, (23) a retroactive collateral consequence statute is a unilateral change in terms by the state after the bargain, which adds to the defendant's offered consideration, consisting of the bargained--for sentence. This Comment argues that such retroactive statutes are a breach of the original contract by the state, and therefore plea-bargained defendants that are subject to these statutes should have some remedy available, such as non-application of the retroactive statute if not outright rescission of the original agreement.

   In a purely contractual context, a plea-convicted defendant's right to challenge the application of retroactive statutes seems fair and intuitive, but there are several legal hurdles to overcome before an argument for remedy or rescission based on contract law will appear legally legitimate and non-frivolous. As a threshold matter, a purely contractual approach to revisiting a plea bargain is almost irrelevant in practice, because principles of contract law and criminal law have had an uneasy coexistence with respect to plea bargaining. Quite simply, there are certain inherent aspects of plea bargaining that are antithetical to the assumptions of the classic theoretical contract. (24)

   Furthermore, there are several established principles of contract law that a defendant would have to overcome in order to receive a remedy. The sovereign acts doctrine, as originally recognized in Horowitz v. United States, (25) creates a considerable hurdle for an individual to properly assert that the legislative acts of the state can be viewed as acts of a contracting party. (26) Additionally, the question of risk assumption in the context of guilty pleas has considerable bearing on whether stronger remedies, such as non-application of the statute or rescission, may be justified. (27) Finally, there is the issue of whether application of these retroactive collateral consequence statutes can even be considered a breach of the agreement. (28) Even if the ultimate remedies of rescission or non-application of the civil penalty are not available, this Comment intends to demonstrate that while plea bargaining and retroactive collateral consequences are both accepted and prevalent practices in the U.S. criminal justice system, the combination of the two is not theoretically justified. At the very least, one or both systems should be reevaluated in light of their conflicting rationalizations.

   This Comment begins with short histories of guilty pleas and collateral consequence statutes in the U.S. criminal justice system. In particular, Part II describes the rise in prominence of plea bargaining and the rationale for its legitimacy in the law, paying particular attention to the pragmatic justifications driving the increase in guilty pleas and forming the basis for the legality of the practice. It then goes on to describe the history of collateral consequences, focusing on the largely recent developments in sexual offender registration and notification laws. In particular, it explains that the newly mandated federal system for classification of offenders and its retroactive application eviscerates the bargains contemplated by guilty pleas. Stringent notification and registration requirements are levied upon defendants who had bargained for, and may have even completed, particular sentences prior to the enactment of the new federal law. Part II concludes with a survey of the previous constitutional challenges to sexual offender registration and notification statutes along with a brief description of why they were unsuccessful. In short, conviction-based offender classification systems do not violate procedural due process because their application is determined by the outcome of a criminal trial, and registration and notification laws do not violate the Ex Post Facto Clause because they are civil and non-punitive measures. (27) Finally, previous substantive due process challenges have failed because there is neither a history nor tradition of not having to register oneself for past sexual offenses. Part III of this Comment focuses on the contractual rationale for plea bargains and serves to describe the underlying basis for my eventual argument. First, it briefly describes the contract-based arguments for and against plea bargaining. It then continues with a more detailed analysis of three Supreme Court cases that invoke doctrines of contract law to adjudicate cases concerning alleged breaches of plea agreements. These three cases in turn create a limited jurisprudence for analyzing whether plea agreements are breached by subsequent state action.

   Part IV builds on the jurisprudence derived from these three cases and explains how it informs the subsequent analysis of the integration of collateral consequence statutes and plea...