In Padilla v. Kentucky, the Supreme Court held that the collateral consequences of a plea mattered, enough so that a defendant was entitled, under the Constitution’s promise of effective assistance of counsel, to be accurately told of the immigration consequences of his plea to a drug offense. Maybe the Second Circuit thought that was just the Big Bench being softies on immigration, or maybe they figured this was a way to circumvent the problem, but should the crime require post-release sex offender registration, the rules change.
In Doe v. Cuomo (one name of which is used to conceal the party in interest’s true identity), the court crushed the hopes and dreams of ending a decade-long nightmare, following a plea of guilty to the state misdemeanor of attempted possession of a sexual performance by a child.
The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration. Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.
The District Court held it did. Reviewing under an abuse of discretion standard, the Circuit smacked ’em all. The defendant took a plea, for which he received a sentence of three years probation, having been informed that he would be required to register as a sex offender for a period of 10 years, though the law provided a safety valve as well:
At the time of Doe’s guilty plea, SORA required level-one sex offenders to register annually for ten years from the initial date of registration, N.Y. Correct. Law § 168-h (1996), and also provided that [a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court,” id. § 168-o.
That was the deal. That’s what he was told when the defendant made the deliberate decision to plead guilty. That, as Padilla informs, is required in order to afford the defendant effective assistance of counsel as the Sixth Amendment commands.
So naturally, after the defendant copped the plea, and the New York legislators had another election to go through requiring some demonstration of their commitment to protecting the sleeping children of the state from sex offenders who were merely subject to a decade of post conviction misery, the Lege doubled down.
In 2006 the New York State Legislature amended sections 9 168-h and 168-o. The relevant change to § 168-h ‚increased the registration 10 requirement for level one offenders from ten to twenty years . . . effective as of 11 January 18, 2006.‛
Everyone was re-elected. Children slept soundly. And the defendant’s commitment at sentence, the one he was due according to the Supremes, disappeared in the mist. That was then, this is now, the Circuit said. Bummer.
As the Circuit explained, registration as a sex offender isn’t a punitive requirement in itself, but merely regulatory because the guys in Albany were smart enough to call it “regulatory” in crafting the punishment. But still, the court was obliged to consider whether it had a punitive effect.
“The factors most relevant to 17 our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.”
Notice the skunk in that disjunctive list? That would be “has a rational connection to a nonpunitive purpose,” as in “sure we chop his head off, which we don’t think hurts very long, but that provides more food to be given to the orphans in Milwaukee,” so it’s really just to feed orphans. What’s punitive about feeding orphans?
The Bill Jacket and accompanying materials relating to the law amending § 168-l(6)(a) (the notification provision) indicate that the Legislature “authorize[ed] local police to provide information [about level-one offenders] to entities serving vulnerable populations”‛ out of a concern for public safety.
Public safety is a perfectly rational, nonpunitive purpose, right?
Likewise, the legislative history of the 2004 law amending § 168-p to remove the fee for accessing the registry indicates that the Legislature sought to reduce child sexual abuse by facilitating registry checks by youth organizations rather than to punish offenders.
Reducing child sexual abuse is a perfectly rational, nonpunitive purpose, right? And it’s not even a real burden on the whiny registrant, although the Supremes held that plastering a guy’s name and face on the internet isn’t a real burden either.
Although the statute permits law enforcement officers to provide level-one registrant information to those working with vulnerable populations, that is a far cry from posting the information on the Internet for all to see—a practice that the Supreme Court held was nonpunitive in Smith. See Smith, 538 U.S. at 99.
There was once a time when the terms of a negotiated plea were considered a matter of contract, a deal struck that the parties were required to keep after Santobello v. New York held that the prosecution couldn’t change its mind after a plea about taking no position on sentence. No more, as Corey Yung explains:
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).
The relevance of the Doe defendant receiving notice of a post sentence change in the registration law is awfully hard to swallow, as if it mattered. The concept of reliance on an agreement works great, until everything changes and then it doesn’t, even though it would have been abundantly easy, and doctrinally sound, to grandfather the defendant to the law as it existed when he took the plea.
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.
A deal’s a deal, except when there can be no deal because . . . reasons. The only question remaining is whether this will be true for all negotiated pleas, or whether sex offenders are special because they are so much more despised under the law than anyone else.