Plea Bargaining, Reliance, and Sex Offender Restrictions
Judges often refer to a plea deal as subject to the rules of contract law. However, when judges make that statement, they usually backtrack and realize how poorly contract law operates in the criminal domain. The role of the judge as a third party to the deal as well as a lack of normal consideration are particularly difficult to square with typical contract rules. The ongoing struggle in plea deals involving sex offenders is particularly illustrative of how plea bargaining sometimes operates in an environment of anarchy.
Doug Berman points to a Second Circuit opinion today that demonstrates how the concept of reliance is essentially meaningless in a world where legislative enactments apply to classes of, and not individual, defendants. In the case, a defendant pled guilty to a misdemeanor charge of attempted possession of a sexual performance of a child. At the time of his plea, the law required 10 years of registration for his sex offender status and allowed for a petition to remove his name from the sex offender registry afterward. The defendant complied with his registration requirements for the entire decade and then petitioned to have his name removed from the registry. However, in the intervening time period, the legislature extended the time frame for registration for his class of sex offenders to 20 years and removed the procedure for the defendant to have his name taken of the registry. The Second Circuit saw no constitutional or other problem and denied any relief to the sex offender. I wanted to draw attention to one particular section the opinion:
Doe also argues that he was deprived of due process when, as he asserted in his complaint, despite the sentencing court’s promise to him, the Legislature amended the law to abolish the petition for relief from registration. We are no more persuaded by this second argument than we were by the first. There is no serious dispute that the New York State Legislature provided constitutionally adequate process simply by enacting [the SORA amendments], publishing [them], and . . . affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those
Although prosecutors often deliver such promises to defendants, this case was particularly interesting because the sentencing judge further assured the defendant that he would be able to petition to have his name removed. However, the Second Circuit was unpersuaded because it construed the relevant due process right as one of notice related to subsequent legislation. As long as the defendant received notice of the subsequent amendments, there is no constitutional violation under the Second Circuit view (which is universal among courts as far as I know).
Using contract law, we might expect a different outcome. After all, in Santobello v. New York, the Supreme Court found that a prosecutor was in breach of a plea deal by violating a term of the plea contract (by recommending a sentence despite a promise not do so). Thus, we might think that defendants can rely on parties to plea deals (prosecutors and judges). However, many sex offenders have accepted plea deals because of statements made by prosecutors and judges based upon statements that ended up not being true. Sometimes prosecutors have assured defendants that they will not have to register because they are pleading guilty to a nonsexual offense. However, federal registration and some state registration requirements have been subsequently held to apply non-categorically meaning that the underlying facts of the case control the obligation to register. In other cases, like the Second Circuit one from today, prosecutors and judges have made accurate statements of law at the time that are rendered false through subsequent legislative action. And yet the reliance of defendants on such statements and promises have been ignored by courts across the country. In all cases, though, sex offenders are being denied any relief because cases like Santobello are interpreted as only applying to actions related to the sentence by the judge and not so-called collateral restrictions made by the legislature. This might just be the common exception-making that goes on when cases involve sex offenders. However, I think the problem is even more fundamental. The Supreme Court’s deconstitutionalization of plea bargaining and the difficulty in applying contract rules consistently has left the process unrestrained in certain contexts. The case today illustrates that a defendant who is considering a deal for a case involving sex crimes should make no assumptions about the status of sex offender requirements based upon present law. General principles of reliance and fairness simply have no role under current doctrine when collateral restrictions are involved.