Merely a collateral consequence?

We are told, by the U.S. Supreme Court no less that sex offender registration is a collateral consequence not punishment so does not suffer ex-post facto restraints. United States v. Kebodoux involves a military person convicted at SPCM. And within the military we have case law.

But, can registration reach a point where it is in fact punitive. That’s the point of Prof. Corey Yung’s post here.

[T]he farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.

If the goal of SOR is to identify for the public possible threats to safety and also keep track for recidivism purposes then should not the program be tailored and limited to that purpose? Apparently not.

Does this give us a basis to take a new look at military caselaw which generally prohibits or limits consideration of SOR?

In United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013), the court said, “Given the lifelong consequences of sex offender registration, which is a “particularly severe penalty,”the military judge’s failure to ensure that Riley understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of Riley’s plea. [Unites States v. ]Inabinette, 66 M.J. at 322.” 72 M.J. at 122 (emphasis added). The court also said, “in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea.” id. So why not as to a conviction where there is evidence that it has punitive effects?

The way ahead may be found in McNutt:

Although military judges and members should not generally consider collateral consequences in assessing a sentence, this is not a “bright-line rule.” In certain circumstances, therefore, it may be appropriate for the military judge to instruct on collateral matters. In deciding whether the military judge erred in giving such instructions, we will take a flexible approach focusing on the military judge’s responsibility to give “legally correct instructions that are tailored to the facts and circumstances of the case.” For example, the “availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members.” However, in such a situation, the military judge should then instruct the members that although the possibility of parole exists in the military justice system, “they could not consider it in arriving at an appropriate sentence for [the] appellant.”

United States v. McNutt, 62 M.J. 16 (C.A.A.F. 2005).

As I have indicated to others, the approach must start with a close analysis and presentation of evidence regarding the specific client. Where does he anticipate living when released from confinement. If, for example he says Texas, then the various registration requirements are straightforward. It is true that there are some nuances in Texas, and state to state. But the larger question on offense, comparison, and type of registration are fairly easy to discern. Then get an official copy of the statute and it’s requirements as well as the particular website involved, and now the statute referenced by Prof. Yung above. Present that and argue that this is more than a mere collateral consequence, cite some of CAAF’s language, and argue the punitive effects warrant evidence and argument.

Anyway, that’s a thought for the day.