Professor Yung reports that: The Fourth Circuit Got it Right.
(The U.S. Fourth Circuit is considered one of the more conservative of
the Circuit Court's of Appeal.) There has been some litigation over the
Adam Walsh Act and whether or not all or parts of it are
constitutional. Predictably most lower courts have said that the AWA is
constitutional (although most of the challenges have been to the
retroactivity provisions). Reading Professor Yung leads to some
stream-of-consciousness thoughts about courts-martials and sex offender
– We are "required" to advise clients about sex
offender registration. It's proper practice, and it will be an issue at
trial in cases where your client is pleading guilty to an offense where
registration may be required. A client pleading not guilty should at
least know that a risk of pleading not guilty is a conviction of an
offense requiring registration as a consequence.
-Anecdotelly registration requirements are leading to more contested cases?
anecdotelly, some convening authorities are apparently willing to
negotiate the charge, not necessarily the confinement. It would not be
unexpected to see a plea to a violation of Article 128, as opposed to
indecent assault or indecent acts, but without a sentence cap. Some
clients have, and I suspect might continue to be willing to offer and
take such a pretrial agreement.
-When advising military clients of
sex offender registration it is difficult to know precisely what to
tell them. -Regardless of what DoD or the appellate courts think, the
rules are arcane and complex. I've seen at least one "pro-forma" advice
to clients which is wrong is several respects. (I suspect civilian
attorneys have more contact with clients and former clients
post-service on this issue than military attorneys.)
-I would be
interested in knowing what clients are told, how detailed, and how
tailored to the clients particular situation. This will be the next "my
lawyer didn't tell me that" issue.
-I would be interested in knowing if there is any trend in the NG/G plea ratio and/or PTA policies.