The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators"

By Jenny Roberts. Full text here.

For many people convicted of crimes, the case does not end when the sentence is over. Instead, it follows them out of the courthouse or prison doors in the guise of “collateral,” or non-penal, sanctions. The last several decades have seen unprecedented expansion in the number and severity of the collateral consequences of criminal convictions, which include sex offender registration, deportation and bars on employment and housing. Perhaps the most severe consequence is the involuntary commitment of “sexually violent predators.” Twenty states have now passed statutes, commonly known as “Sexually Violent Predator Acts” (SVPAs), which are being used to indefinitely confine thousands of individuals after they are released from prison.

The recent proliferation of these statutes has inspired scholars to critically examine the cost, effectiveness, and constitutionality of SVPAs. This Article considers involuntary commitment from the perspective of a reasonable person charged with a crime and facing a decision about whether to go to trial or plead guilty. It is hard to imagine a more severe abridgement of one’s liberties than involuntary commitment. Despite this, courts have consistently ruled that defendants have no constitutional right to be told that their guilty pleas could lead to involuntary commitment in a mental institution or prison-like setting for the remainder of their natural lives. Indeed, under the collateral consequences rule, courts have interpreted the Due Process Clause and the right to counsel under the Sixth Amendment to require warnings of only the “direct” consequences of guilty pleas, meaning the potential incarceratory, probationary, or monetary sentence.

This Article exposes the fiction of the direct-collateral divide and examines the doctrinally flawed rationale for the collateral consequences rule. It also critiques the rule for its singular focus on the extra-constitutional values of finality and efficiency in the administration of criminal justice. The current rule ignores the constitutional protections relevant to guilty pleas, with their underlying purpose of ensuring that defendants know what they are getting themselves into when they plead guilty.

Finally, the Article proposes a unique approach, a test of reasonableness, for this constitutional question so as to bring rationality to the intersection of collateral consequences and guilty pleas and to inject the defendant’s perspective into the process. A defendant should be entitled to pre-plea warnings about consequences, “direct” or “collateral,” whenever a reasonable person in the defendant’s situation would deem knowledge of those consequences to be a significant factor in deciding whether to plead guilty. Consideration of the surrounding facts and circumstances, common in other areas of constitutional criminal procedure, would bring much-needed transparency and fairness to the plea process.