Minnesota Law Review

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

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.

:: View PDF

News & Events

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here. Share this: on Twitter on Facebook on Google+

Newsletter

cforms contact form by delicious:days