Articles Posted in Collateral Consequences

Fifty State Survey of Adult Sex Offender Registration Laws

Brenda V. Smith
American University – Washington College of Law; American University – NIC/WCL Project on Addressing Prison Rape
August 1, 2009

This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This chart catalogues statutes that address adult sex offender registration requirements in all fifty states, as well as surrounding territories. This chart provides a list of all registrable offenses; indicates whether sex offender registration is required for staff sexual misconduct; details the type of information maintained in the sex offender registry, community notification and other websites; identifies limitations on residency or employment; and identifies the duration of registration.

Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 IOWA L. R. 119 (2009).

ABSTRACT: In the 2009–2010 term, the U.S. Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence—every jurisdiction, that is, except Kentucky. The Supreme Court of Kentucky recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation.

The collision of the collateral-consequences rule, which imposes no duty to warn, and the affirmative-misadvice exception, which imposes a duty to give accurate advice where a lawyer chooses to warn, leads to a perverse incentive structure that signals to defense lawyers (as well as to prosecutors and judges) that it is safest to say nothing at all about “collateral” matters. The Kentucky approach that the Supreme Court will review is equally troubling; it allows false information with no sanction or remedy. A cluttered and contradictory jurisprudence of informational rights in the guilty-plea process sits at this intersection of the collateral-consequences rule and affirmative-misadvice exception.
So-called collateral consequences often overshadow the direct penal sentences in criminal cases. In addition to deportation, courts categorize many other severe consequences as collateral, including involuntary civil commitment, sex-offender registration, and loss of the right to vote, to obtain professional licenses, and to receive public housing and benefits. These consequences touch upon every important area of a convicted person’s life—for the rest of his or her life. They also matter enormously in the United States, which has more than 600,000 individuals exiting the prison system and millions more getting criminal records each year. These individuals enter a society that is struggling to find ways to integrate them despite facing considerable obstacles.

Thanks to CAAFLog there is news about the military mandatory release program imposed on those convicted and sentenced at court-martial.

Judge Rogers of the 10th Circuit has found the program to be legal and constitutional, in Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009).  (United States v. Huschak, ACM 35382 (A. F. Ct. Crim. App. 28 June 2004) aff’d 61 M.J. 154 (C.A.A.F. 2005).  He was sentenced to 10 years of confinement, and the CA reduced confinement to 8 years.  As Judge Rogers notes, no issues relating to the MSRP were raised at trial or on appeal.  The case preceded United States v. Pena.

In the old days the military prisoner who reached the MRD would be released from confinement and released.  There was no consequence to their current sentence if they got in more trouble, also the government couldn’t impose conditions on that release such as attending sex offender treatment programs.  That meant that as they got closer to parole eligibility the prisoner started to think about gaming the system.  At the time a paroled prisoner would be on the military leash up until their FTD, they could have parole revoked, and the could be back serving every day of the adjudged sentence.  Typically that meant that a prisoner offered parole during their last year up to MRD gamed the system and refused parole.  They’d have to serve up to their MRD for several more months, but it was better than being on the government leash for several more years through the parole system.

If you’ve been following Miller (sex offender registration issues) and Denedo (immigration issues similar to Padilla)(link to SCOTUSWiki documents), you’ve been following Padilla v. Kentucky.

Here’s a link to United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).

Here’s a link to an LA Times editorial on Padilla.

Courthouse News Service is reporting the following:

A former Marine who allegedly used a government computer to access child pornography can’t be deported based on his conviction by special court-martial of violating military code, the 9th Circuit ruled.

Honduran native Rigoberto Aguilar-Turcios was admitted to the United States as a legal permanent resident in 1996. Four years later, he joined the Marine Corps.

Cory Yung at SexCrimes is reporting:

DOJ issued a press release today announcing the first two jurisdictions to implement the Sex Offender Registration and Notification Act (SORNA), part of the Adam Walsh Act.  The two jurisdictions? Ohio and the Confederated Tribes of the Umatilla Indian Reservation (in Oregon).  While applauded as a important achievement, there is no comment about the dysfunction California seems to be encountering.

This is the headline of an article on TheSlatest.

Zoning laws have forced sex offenders in the Atlanta suburb of Marietta, Ga., to live in a makeshift camp in the woods—in spite of the fact that several of them own homes. According to the Associated Press, registered sex offenders in Marietta are being directed by parole officers to an encampment behind an office park—one of the few places in the town where offenders can live without violating zoning laws.

This is not the only location where sex offenders are being driven to homelessness.  Florida has a particular town where the sex offenders are being driven to live under a freeway.

Does this help or hurt?  Does forcing a sex offender into homelessness and drifting aid in the purpose of knowing where they are or JNIMBY.

This is the title of a comment on Cory Yung’s Sex Crimes blog.

SCOTUSblog’s recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here.

The issue the very important one of retroactivity.  I’ve had a number of clients or former clients contact me about the retroactive application.

Pretty easy right?  You do, you don’t.
Ohio Sex Battery Not A ‘Crime of Violence’?

Professor Jonathan Adler over at the Volokh Conspiracy has a post discussing the Sixth Circuit’s decision in United States v. Wynn, where a divided panel found that a defendant’s guilty plea to “sexual battery” under Ohio law was a not “crime of violence” for career offender purposes. You may read the Sixth Circuit’s decision here. From a post entitled Is “Sexual Battery” A “Crime of Violence”?:

The question would seem to answer itself. Isn’t "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

/tip Cory Yung’s excellent site on Sex Crimes.

The CGCCA has decided United States v. Molena.

Before this Court, Appellant has assigned the following four errors:
Appellant was denied effective counsel when his attorney erroneously informed him that he would not need to register as a sex offender.
The bad-conduct discharge is an inappropriately severe sentence.
Defense counsel’s failure to submit evidence regarding SA O’s character resulted in ineffective assistance of counsel.
Appellant’s plea was involuntary due to a failure by the Convening Authority to adhere to a material term of the pretrial agreement.
We grant relief on Assignment of Error IV (AOE IV) by setting aside the findings of guilty to Charge IV and its specification, indecent exposure.

By setting aside the charge on IV the court mooted the allegation of IAC.

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