Back when Padilla v. Kentucky was decided by the United States Supreme Court, the defense bar was quite excited not only by the relief it afforded criminal defendants, but also by the exciting possibility that the Court might be willing to take an honest look at the fictional distinction between direct and collateral consequences of a plea.
Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.
Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.
While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.
Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.
But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on:
We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
The arguments in favor of requiring that defendants be aware of the deportation consequences apply just as forcefully to the sex offender registration context. From the dissent in Gravino:
Significantly, in determining whether the direct/collateral consequence dichotomy was useful to determine whether deportation advice was required, the Court stated, “[a]lthough removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the [civil] penalty from the conviction in the deportation context”.
While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to divorce . . . from [a] conviction”.
It is difficult for me to understand how the court can, on one hand, admit that “SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes” and on the other easily “divorce the consequence from the conviction”.
While we may not be there yet, the day is not far off when some court will force SCOTUS to revisit their terrible rulings in Smith v. Doe and Dep’t of Public Safety v. Doe, in light of Padilla and the lifting of the veil on direct and collateral consequences.
Gravino was not permitted to withdraw her plea, despite never really being told that she’d have to register for 20 years and she would be in violation of a criminal statute if she failed to do so. Collaterally, two days ago, the Connecticut Supreme Court decided a case in which the defendant was explicitly told on the record that he did not have to register as a sex offender.
In Connecticut, unlike New York, the trial court is required, pursuant to 54-251(a), to inform the defendant that he will be required to register as a sex offender at the time of the plea:
Prior to accepting a plea of guilty or nolo contendere from a person with respect to a criminal offense against a victim who is a minor or a nonviolent sexual offense, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea.
The defendant in that case, however, didn’t seek to withdraw his plea. Instead, all he wanted was to be free of the requirement to register. I think the court more likely than not would have let him withdraw his plea if he so pleased.
Connecticut, of course, also treats sex offender registration as regulatory rather than a punitive measure (State v. Waterman). But eventually, some court will have to accept the fact that these registration requirements place an undeniably heavy burden on offenders – burdens that are created by society in general – and deal with them in an intellectually honest manner.