Court-Martial Trial Practice Blog
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.
Mr. Murray argues that we should reconsider the definition of collateral consequences and how they affect sentencing and most importantly recidivism and reintegration. Here is the abstract.
While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints.
This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.
Take a look, I am looking for ways to bolster my trial motion on SOR.