University of Nottingham philosophy professor Zachary Hoskins has written an important new book about “collateral legal consequences” (CLCs), just published by Oxford University Press. Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction engages cases and statutes from the United States and other countries, but it is primarily a philosophical interrogation of the legitimacy of CLCs, not an analysis of legal doctrine or constitutional limitations.
A core principle is the powerful one that harsh treatment and disadvantage requires justification, particularly when hardships are imposed on specific groups. Beyond Punishment argues that CLCs could be justified as criminal punishment to some degree, but that legitimate punishment is that which is necessary and sufficient to pay one’s debt to society. The way CLCs actually operate in the United States often does not fit into this category. First, CLCs are not characterized as punishment (and therefore are exempt from the constitutional limitations on criminal punishment) but as civil, regulatory measures. Second, they are often imposed years after completion of the criminal sentence.
A non-punitive rationale might be that by breaching the social contract, people with convictions are not entitled to the benefits of that contract. But this proves too much–because someone jaywalked in 1989 does not mean they can legitimately be robbed or defrauded today. If breaching the social contract justifies only a proportional as opposed to an unlimited response, most CLCs go too far. Beyond Punishment also criticizes public safety as a justification for CLCs, for essentially the same reason: The more or less random and arbitrary imposition of collateral consequences is unduly harsh on some, while others who should be restrained for the same reason but have no criminal conviction are not subject to CLCs.
Beyond Punishment’s careful analysis and precise definitions make a strong case that CLCs are, as Justice Kennedy said about imprisonment itself, disabling “too many persons for too long.” But the tradition of American constitutional jurisprudence, anyway, has not been to require rigorous fairness or precise justification for hard treatment. Even with regard to incarceration, the Eighth Amendment’s prohibition on cruel and unusual punishment has not been much of a limitation on brutal sentences for minor crimes. This is, to some extent, good news as well as bad. While courts have proved, thus far, of only limited help in reining in collateral consequences and other criminal sanctions, legislatures are as unconstrained in repealing or mitigating them as they were in imposing them in the first place. Legislators and voters, as well as students and lawyers, will be hard-pressed to justify our current system of CLCs after reading this book.
In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.
First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.” Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement. Michigan v Snyder, No. 153696; People v. Betts, No. 148981.
In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements. Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019). This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”
These two caselaw developments are discussed further below.
Wayne Logan has a terrific new article on the recent challenges to sex offender registration and notification laws, forthcoming in the New Criminal Law Review. Here is the abstract:
Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.
On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski. Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions. However, several years later a registration requirement was enacted and applied retroactively to his case. Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment. However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.” While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.
An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.
The Pennsylvania Supreme Court, in a divided opinion, has held the provisions of the state’s sex offender registration law (SORNA) unconstitutional under the state and federal constitutions. The majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution. The Court distinguished the Alaska registration scheme upheld by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and cited a number of other recent state high court holdings invalidating similarly harsh registration regimes. The Court relied heavily for its analysis on an amicus brief filed jointly by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (PACDL). CCRC also filed an amicus brief in support of the plaintiffs, describing the counterproductive effects of such registration schemes. The concurring and dissenting opinions are posted here and here.
A full analysis of the holding and of the concurring and dissenting opinions will follow shortly.