Articles Posted in Collateral Consequences

Military prisoners may go on MSRP at their MRD unless going into parole. There are many conditions and some consequences for failure to follow the rules. With that in mind, we may need to pay attention and give some thought to:

United States v. Haymond, decided today (26 June 2019) by the Supremes. The opinion is written by Gorsuch. (I’ve linked to SCOTUSBlog so you can the briefs and the opinion.

Some early comment from Prof. Doug Berman — here.

Thanks to Prof. Berman at Sentencing Law 7 Policy who directs us to Murray, Brian, Are Collateral Consequences Deserved? (January 29, 2019). Available at SSRN: https://ssrn.com/abstract=

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence.  Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few.  Despite that, I continue to argue that SOR is more than a collateral consequence.  As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

In general a court-martial accused can waive most rights and privileges in a pretrial agreement.  A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial.  But,

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record.  The subject line is your name plus other information.  This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody.  The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Thanks to Prof. Berman TG, here is a resource for collateral consequences of a conviction.

Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.

Another place to look is SentencingProject.org.  (Note, it will be necessary to “sherardize.”) , or

On 20 March 2012, NMCCA decided United States v. Jones; and in doing so they have answered a question that was not unexpected, but took a little while to come.

In United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), CAAF decided prospectively that defense counsel must advise a client about the DoD sexual offender registration requirements when negotiating a PTA.

The question is how detailed must the advice be and what about additional state law requirements.  There any number of offenses not listed in the current version of DODI 1325.7 where states now require registration.

A reader on Military.com asks this question:

Q: I’m 18 years active duty with the US Navy. I was an E-6 from 2000–2009 but got busted for UCMJ violation to E-5. I fall under the High-3 plan for retirement and a lot of my friends are saying that when I retire, I will get the E-6 retirement pay, but then again, some of my friends are saying I will not — which is true?

The answer given is:

And here is an Air Force Times report:

When Rohan Coombs joined the Marine Corps, he never thought one day he would be locked up in an immigration detention center and facing deportation from the country he had vowed to defend. . . .

The estimates are of about 8000 non-U.S. citizens enlisting to serve in the U.S. armed forces in any given year.

Danger Will Robinson.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that "§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a)." In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not "in the custody of the Bureau of Prisons" under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

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