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Roberts J Research Paper Re the Myth of Collateral Consequences Involuntary Commitment of Sexually Violent Predators 2008

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© 2008 by Jenny Roberts, All rights reserved.
Assistant Professor, Syracuse University College of Law. B.A. 1987, Yale University; J.D. 1995, New
York University School of Law. Many thanks to Rakesh Anand, Mary Holland, Mary Helen McNeal and
Juliet Stumpf for invaluable comments. Thanks also to Jonathan P. Saine and Peter Chambers for excellent
research assistance.

Electronic copy available at:



For many defendants, the criminal 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. The
most severe consequence is the involuntary commitment of “sexually violent predators.”
Nineteen states have now passed statutes, commonly known as “Sexually Violent
Predator Acts” (SVPAs), which are being used to indefinitely confine thousands of men
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 breaks new
ground by examining involuntary commitment from the perspective of defendants in the
guilty plea process. 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, the Due Process
Clause and the right to counsel under the Sixth Amendment have been interpreted to
require warnings of only the “direct” consequences of guilty pleas, meaning the actual
penal 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 to 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 or not to plead guilty. A test of reasonableness,
common in other areas of constitutional criminal procedure, would bring much-needed
transparency to the plea process.

Electronic copy available at:



INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

UNDERSTANDING COLLATERAL CONSEQUENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The Conceptual Landscape’s Formalistic Distinction Between “Direct”
and “Collateral” Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. The Constitutional Landscape: Due Process, Effective Assistance and
Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. The Outdated Landscape of Collateral Consequences . . . . . . . . . . . . . . . . . . . . 20


VIOLENT PREDATOR ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. A Growing Trend: Involuntary Commitment of “Sexually Violent
Predators” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. No Duty to Warn About Commitment as a “Sexually Violent
Predator” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26



. . . . 30

A. Proposal: Rule of Reasonableness for Warnings. . . . . . . . . . . . . . . . . . . . . . . . 30
B. Rule of Reasonableness Applied to SVPAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Collateral Consequences Rule Emphasizes Institutional Values Over
Individual Defendant’s Right to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44



Thomas Steele pled guilty to rape and other charges in exchange for a sentence of
twelve to thirty years in a Massachusetts state prison. 1 Shortly before he became eligible
for parole on this criminal conviction, the state classified Steele as a “sexually dangerous
person.” 2 Although Steele has completed his prison sentence, the state continues to
confine him under a Massachusetts law that allows for the involuntary civil commitment
of “sexually dangerous persons.”3 The order committing him stated that he could be held
for a period ranging from one day to life. 4
At the time of his guilty plea, Steele was presumably informed that he would receive
a twelve to thirty year prison sentence. The constitutional principles governing guilty
pleas and the right to counsel require a defendant to be advised of the criminal penalty
that he faces. However, neither the sentencing court nor defense counsel in his criminal
case was required to tell Steele about the potential lifetime involuntary commitment at
the time that he entered his guilty plea.
According to the First Circuit, “the possibility of commitment for life as a sexually
dangerous person is a collateral consequence of pleading guilty.” 5 The court reasoned
that, even though the charges of aggravated rape, kidnapping and assault to which Steele
pled guilty “perhaps made him a likely candidate for being classified a sexually
dangerous person,” the consequence was properly categorized as collateral because it did
not flow directly, immediately and automatically from the fact of his guilty plea.6 As a
result, the court rejected Steele’s argument that the failure to inform him about
involuntary commitment prior to his guilty plea violated due process. 7
Direct consequences include the amount of time spent in jail or prison, fine, or other
criminal punishment that a trial judge may impose after conviction. Almost everything
else is deemed “collateral.” 8 Under the collateral consequences rule, a defendant has no
constitutional right to be made aware of such consequences before he pleads guilty.
Consequently, he has no right to withdraw his guilty plea if he was unaware of its
collateral consequences.
The analysis of the duty to warn in the guilty plea context focuses on two
constitutional norms: due process and the effective assistance of counsel. The former
applies to all parties involved in the plea process, while the latter controls only the
behavior of defense counsel. Courts have applied the collateral consequences rule in both

See Steele v. Murphy, 365 F.3d 14, 15 (1st Cir. 2004).
Telephone Interview with Willie J. Davis, appellate counsel for Thomas Steele, in Boston, Mass. (June
13, 2007).
See MASS. GEN. LAWS ch. 123A (West 1986), amended by 1999 MASS. ACTS 265-66.
Steele, 365 F.3d at 15.
Id. at 17 (emphasis added).
Id. at 18; see also infra Part ___ , describing and critiquing “definite, immediate and largely automatic”
definition of direct consequence.
Steele, 365 F.3d at 17 (citing Brady v. United States, 397 U.S. 742 (1970)). A Massachusetts law
requires trial courts to “inform the defendant on the record, in open court: . . . where appropriate, of the . . .
sexually dangerous persons provisions of the General Laws, if applicable.” MASS. RULE CRIM. PRO.
12(c)(3)(B). However, the court in Steele noted that any violation of this state procedural rule “does not
affect our analysis of Steele’s federal constitutional claim.” Steele, 365 F.3d at 19 n.2.
See infra text accompanying notes __ to __.



constitutional contexts. This means that neither the judge (nor any other party), during
the entry of the guilty plea, nor counsel, during the counseling process leading up to the
guilty plea, must warn the defendant. This rule holds true regardless of the severity of the
particular consequence. It applies not only to involuntary commitment but also to
deportation, revocation of the right to vote or professional licenses, and lifetime
community notification of sex offender status, among others.
The Steele case neatly illustrates the formalistic distinction courts have drawn
between direct and collateral consequences. Courts decide which consequences are
collateral (and thus outside the scope of constitutionally-required warnings to a
defendant) based on a bright-line rule that focuses on the role of the institutions which
impose the consequence. By strictly circumscribing the category of direct consequences,
courts promote finality and efficiency in the plea bargain process. The fewer
consequences that a defendant must be aware of prior to a guilty plea, the simpler and
more efficient the plea process and the lesser the chance of post-conviction attack upon
the guilty plea based on a failure to warn.
This approach completely ignores the defendant. Institutional concerns, although
pervasive throughout the plea bargain jurisprudence and literature, do not reflect the
relevant constitutional values of due process and effective assistance of counsel. Those
values protect an individual defendant’s right to knowledge about what he is agreeing to
when he pleads guilty and about the right to competent assistance in making that
important and complex decision. Professional standards and some criminal procedure
codes now recommend or statutorily require warnings about at least some collateral
consequences (immigration, largely). The constitutional standard, however, lags far
behind the evolving professional norms.
The unprincipled, outdated collateral consequences rule has a far greater negative
effect on defendants than it did at its inception and development over the last half
century. The number and severity of collateral consequences, including increasing bars
to employment and housing, have greatly expanded in recent years. 9 Many of these
collateral consequences now apply to relatively minor criminal convictions, and even to
certain non-criminal convictions. Perversely, collateral consequences often far outweigh
the direct penal sanction of that conviction because of the explosion of arrests and
prosecutions for minor offenses over the last two decades.
It is time to revisit the rule. This Article proposes a reasonableness standard, which
takes the defendant’s perspective into account. Under this standard, warnings must be
given whenever a reasonable person in the defendant’s situation would deem knowledge
of the consequence, penal or otherwise, a significant factor in deciding whether to plead
guilty. 10 Two main criteria would factor into an evaluation of reasonableness and

See Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A National Study
of State Legal Codes 10 Years Later, 60 FED. PROBATION 10, 15-16 (1996) (describing how an “analysis of
state legal codes reveals an increase between 1986 and 1996 in the extent to which states restrict the rights
of convicted felons,” and noting “an increase in the number of states restricting six rights: voting, holding
office, parenting, divorce, firearm ownership, and criminal registration increased”).
This Article focuses on the consequences of guilty pleas because more than ninety percent of criminal
prosecutions terminate with a plea. See infra note ___ and accompanying text. In addition, the problem
generally arises when a defendant enters a guilty plea without knowledge of one or another collateral
consequence that may or will apply as a result of that plea. When a defendant exercises his right to trial, in
theory he has no control to reject the conviction that might come as a result of that trial, and that could lead



significance in this context: the severity of the consequence and the likelihood that it
would apply. These factors should be considered along a sliding scale, such that highly
severe consequences would qualify for warnings even if there was only a relatively low
probability of their occurrence.
This reasonableness proposal critiques the current due process approach to
information in the plea bargain process. The vast majority of courts rely on this
constitutional norm in analyzing both due process and ineffective assistance challenges to
guilty pleas based on lack of information. This is not to say that defense counsel, who
must deliver effective assistance under the Sixth Amendment, has an identical obligation
to disclose information; a number of commentators have effectively critiqued such an
erroneous conflation of the two standards and have noted that counsel is both
constitutionally obligated and best situated to offer defendants information on collateral
consequences. 11 Still, a broader conception of due process in guilty pleas would apply to
defense counsel and would require that courts ensure defense counsel’s compliance with
the critical need for information about certain collateral consequences. 12 It would be a
floor above which the norm for effective assistance should, and presumably would, rest.
to various collateral consequences. In practice, however, a defendant will often choose to accept a
particular plea bargain offer if it allows him to avoid a harsh collateral consequence that he would face
should he be convicted of all charges after trial. For example, a defendant charged with sex abuse as well
as endangering the welfare of a child might agree to plead guilty to the endangering count, even if both are
the same level of misdemeanor with the same potential penal consequence. This is because the state where
the defendant pleads guilty might require sex offender registration for misdemeanor sex abuse convictions
but not endangering convictions. In such a case, a defendant could argue that he would have accepted the
plea bargain had he known that it would have allowed him to avoid a consequence that he now faced based
on conviction after trial. See generally Boria v. Keane, 83 F.3d 48, 53 (1996) (finding ineffective
assistance of counsel based on fact that Boria’s lawyer failed to counsel him to accept a plea bargain, where
counsel’s “professional judgment [was] that it was almost impossible for a ‘buy and bust’ defendant to
obtain an acquittal”). Although a search has uncovered no cases where a defendant has sought to reverse a
jury verdict (as opposed to a guilty plea) on these grounds, it is certainly a viable claim in the wake of
Boria. For that reason, the standard proposed in this Article asks whether the consequence would cause a
reasonable defendant to accept or reject any opportunity to plead guilty.
See, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 CORNELL L. REV. 697 (2002); see also infra notes __ to ___ and
accompanying text.
Such judicial oversight is particularly important given the ongoing crisis in indigent defense. See
generally Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional
Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625 (1986); Note, Gideon's Promise
Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 HARV. L. REV. 2062 (2000); Gideon’s
Broken Promise: America’s Continuing Quest for Equal Justice, A Report on the American Bar
Association’s Hearings on the Right to Counsel in Criminal Proceedings (Dec. 2004). Courts are already
charged with ensuring, through the plea allocution process, that a guilty plea is knowing, voluntary and
intelligent. See Brady v. United States., 397 U.S. 742 (1970). Just as defense counsel are able to ask a few
more questions to determine if counseling about one or more collateral consequences is necessary, see
McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible
Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 497 (2005) (urging defense counsel to
incorporate "invisble punishments" into their plea bargaining strategies); Michael Pinard, An Integrated
Perspective on The Collateral Consequences of Criminal Convictions and Reentry Issues Faced By
Formerly Incarcerated Individuals, 86 B.U. L. REV. 623 , 685 (2006) (noting how "[i]Incorporating the
collateral consequences and reentry components into [plea] negotiations would allow defense attorneys to
more accurately lay out both the immediate and long-term effects of the particular disposition"), so too can
the courts make minor adjustments to their plea allocution processes to protect such important rights.



This Article uses the lens of involuntary commitment of “sexually violent predators”
to illustrate the flaws with the current collateral consequences rule and to demonstrate
how to correct this through the reasonableness standard. Laws allowing for involuntary
commitment of certain sex offenders are rapidly proliferating. Since 1990, nineteen
states have enacted “Sexually Violent Predator Acts” (SVPAs) specifically designed to
commit individuals convicted of certain sexual offenses, and who also suffer from a
mental abnormality, after they serve their prison term. 13 Involuntary commitment is
perhaps the harshest collateral consequence. However, the literature addressing the role
of defense counsel, prosecutors and the courts involved in the criminal convictions that
can lead to collateral consequences largely fails to discuss it.14
Although SVPAs are relatively new, the issue of whether failure to warn a defendant
invalidates a guilty plea to a crime covered under the law has been litigated in numerous
state and some federal courts. The decision in Steele is not unique. With few exceptions,
defendants who plead guilty in the nineteen SVPA states have no constitutional right to
be told about potential commitment under the SVPA prior to entering a guilty plea.
Thus, silence about it during the plea bargaining, counseling and colloquy process is
The approach that most courts take demonstrates a fundamentally flawed conception
of what a defendant needs to know to make a guilty plea constitutionally sound.
Adhering to a formalistic distinction between “direct” and “collateral” creates a fiction
that defendants knowingly and voluntarily plead guilty when they do not learn about
those consequences, such as involuntary commitment, that may matter more to them than
the “direct” criminal punishment. It also creates the fiction that defense counsel is
competent despite failing to warn about such a critical consequence of the plea.
These are fictions because they do not consider the defendant’s perspective. What
would a reasonable person facing these criminal charges, potential criminal punishment,
“collateral” consequences, and plea bargain offers need to know? It is only when this
critical perspective is introduced into the picture that the right to a voluntary, knowing
guilty plea begins to make sense. Putting the defendant back into the mix gives meaning
to the constitutional protections surrounding guilty pleas.
The issue here is not whether convicted sex offenders should or should not be
involuntarily committed, but rather whether they should be informed about the possibility
of involuntary commitment. 15 It is an argument for more complete information and

See Monica Davey & Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y.
TIMES, Mar. 4, 2007, at A1 (stating that “[a]bout 2,700 pedophiles, rapists and other sexual offenders are
already being held indefinitely, mostly in special treatment centers, under so-called involuntary
commitment programs in 19 states”) [hereinafter Davey & Goodnough, Doubts Rise]. On July 27, 2006,
President George W. Bush signed into law a bill that authorized the disbursement of federal grant money to
states that establish civil commitment programs for sexually dangerous persons. Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006).
See infra text accompanying notes ___ to ___ , describing how legal scholarship on SVPAs focuses on
cost, effectiveness and constitutionality of involuntary commitment and how literature on collateral
consequences focuses almost exclusively on the consequence of immigration. A notable exception is
Professor Nora Demleitner, who has devoted considerable attention to collateral consequences generally
and more specifically to civil commitment of sex offenders. See infra note ___, describing Demleitner’s
The Article does not assess SVPAs generally, although certainly there is much to critique with respect to
both the effectiveness and economic soundness of the burgeoning involuntary commitment movement.



transparency in the plea bargaining process, so that defendants like Thomas Steele can
truly weigh the costs and benefits of pleading guilty.
Part I of this Article sets out the conceptual and constitutional landscapes
surrounding collateral consequences. After exploring the formalistic manner in which
courts separate “direct” from “collateral” consequences, it goes on to examine the two
main constitutional rights framing the guilty plea process: due process and effective
assistance of counsel. This Part also critiques the doctrinally-flawed origins of the
collateral consequences rule. The rule is more specifically considered in the context of
Sexually Violent Predator Acts in Part II, which first briefly describes the growing trend
among states for such legislation. Part III introduces the reasonableness standard, and
then applies it to the consequence of involuntary commitment of “sexually violent
predators.” This Part then explains how the reasonableness standard corrects the current
rule’s overemphasis on the institutional values of finality and efficiency and under
emphasis on the value of an individual’s right to information in the plea bargain process.


A. The Conceptual Landscape’s Formalistic Distinction Between
“Direct” and “Collateral” Consequences.

Under the categorization scheme in the jurisprudence of criminal convictions,
there are two types of consequences: direct and collateral. However, these terms are not
self-defining. As one commentator has described them, collateral consequences “are not
part of the explicit punishment handed down by the court; they stem from the fact of
conviction rather than from the sentence of the court.” 17 Rather than appearing in the
state or federal statute defining permissible sentences for the particular conviction, 18
collateral consequences are scattered throughout a variety of state and federal statutes and
regulations, and increasingly in local laws. 19
OFFENDERS 127-65 (2005) (addressing, as part of chapter on “Sexually Violent Predator Laws,” such
things as “Cost of Implementing an SVP Law”) [hereinafter LA FOND, PREVENTING SEXUAL VIOLENCE];
Nora V. Demleitner, Abusing State Power or Controlling Risk? Sex Offender Commitment and
Sicherungverwahrung, 30 FORDHAM URB. L.J. 1621 (2003) [hereinafter Abusing State Power].
This Article uses “collateral” as that term is most commonly used in the cases and professional standards.
However, some commentators have noted that there are perhaps better – and more transparent – terms.
See, e.g., Smyth, supra note ___ at 493 (stressing importance of using term “invisible” as the strict
definition of “collateral sanctions” does not encompass all consequences of a criminal conviction, such as
those requiring a discretionary decision by an independent governmental agency).
Pinard, supra note ___ at 634.
See, e.g., N.Y. PENAL LAW ART. 70 (McKinney 2007) (“Sentences of Imprisonment”).
See, e.g., 42 U.S.C. § 1437n(f) (permanently barring individuals convicted of manufacturing
methamphetamine from access to federally subsidized housing); N.Y. REAL PROP. ACTS § 711(5)
(McKinney 2007) (allowing for eviction proceedings following any illegal manufacture or business); NEW
available at (local regulations denying
assistance to persons with certain convictions). There are also many potential effects of a criminal
conviction that are not codified, such as the difficulties a person with a criminal record may have in finding
a job. See Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOCIOLOGY 937, 960 (2003). These



Direct consequences thus appear limited to the penal sanction that will be
imposed as a result of a plea of guilty. 20 Yet even consequences that seem to go to the
heart of criminal punishment foster disagreement. For example, in some circuits, a
defendant may be sentenced in a federal criminal case without knowing that his federal
sentence will not begin until he has finished serving a state sentence. The fact that the
defendant will thus serve more prison time on the two cases than he expected when he
pled guilty is deemed “collateral.” 21 In other circuits, it is “direct.” 22 In some circuits,
the fact that a guilty plea to a particular charge will result in a defendant’s ineligibility for
parole is not a direct consequence. 23 In other circuits, the opposite is true. 24 In at least
one circuit, the fact that the defendant would have to admit to a sexual offense as part of
counseling required as a condition of his probation was considered collateral, even where

are the social effects of convictions and incarceration that relate to the convicted individual, his family and
IMPRISONMENT (Marc Mauer & Meda Chesney-Lind eds., 2002).
This Article uses, for its limited purposes, a restricted definition of “collateral consequences,”
including only consequences that result from some federal, state or local law or regulation that takes the
fact of conviction into account in deciding whether or not to impose the particular consequence.
There is little caselaw on what constitutes a direct consequence, as the issue most often arises when an
individual tries to vacate a guilty plea based on consequences almost always deemed “collateral” by the
reviewing court. However, it seems clear from the cases addressing due process in the guilty plea context
that a defendant must at least know the sentence or range of sentences to which he will be exposed should
he plead guilty. See, e.g., Boykin v. Alabama, 395 U.S. 238, 244 n.7 (1969).
See, e.g., Kincade v. United States, 559 F.2d 906, 909 (3d Cir. 1977) (finding that the federal statute that
states that the sentence begins to run when the defendant is received into federal custody “did operate to
increase the length of Kincade's overall incarceration, but not by modifying his federal punishment”);
United States v. Hernandez, 234 F.3d 252 (5th Cir. 2000). The court refused to allow Hernandez to vacate
his guilty plea despite an affidavit from the state prosecutor affirming that all parties involved in the federal
and state cases had agreed that he would be allowed to serve his 188-month federal sentence concurrent to
his 20-year state sentence and that, in fact, the state plea was postponed precisely to effectuate this aspect
of the bargain. Id. at 253-54. Although the state court eventually dismissed the charges so that Hernandez
could begin his federal sentence, this happened after Hernandez spent five years in state prison. Id. at 254
n.2. In other words, Hernandez spent five years longer in prison than he had expected under what he
believed were the terms of his plea. This is still far better, for Hernandez, than what would have happened
under the Fifth Circuit’s ruling and without the state court intervention – namely, spending 188 extra
months in custody.
See, e.g., United States v. Myers, 451 F.2d 402, 404 (9th Cir. 1972) (finding that federal law making
district court powerless to impose concurrent federal sentence when defendant also faces state charges
impacts defendant’s maximum total imprisonment, and thus is a direct consequence that defendant must be
aware of prior to entry of any guilty plea in the federal case) (superseded by statute). Although the federal
statute at issue in Myers has since been amended to allow federal judges to impose a federal sentence
concurrent to some state sentences, see 18 U.S.C. 3584, the cases nonetheless illustrate how different
circuits have approached an issue with such an enormous effect on the knowledge a defendant has about the
amount of prison time he will serve.
See, e.g., Trujillo v. United States, 377 F.2d 266, 269 (5th Cir. 1967) (finding that parole eligibility is a
matter of “legislative grace” and thus is not a direct consequence of guilty plea) (internal quotations
See, e.g., Munich v. United States, 337 F.2d 356, 361 (9th Cir. 1964) (holding that “one who, at the time
of entering a plea of guilty, is not aware of the fact that he will not be eligible for probation or parole, does
not plead with understanding of the consequences of such a plea”).



the court had allowed that defendant to enter a nolo contendere plea, meaning that he did
not have to admit guilt as part of his plea. 25
It is thus far from clear exactly where the line between direct and collateral
consequences falls. At a minimum, the actual term of jail or prison time imposed by the
court, as well as any fines or term of probation, fall on the “direct” side of the line. 26
Beyond that, the convoluted jurisprudence of what constitutes a collateral consequence in
each particular jurisdiction governs.

The Constitutional Landscape: Due Process, Effective Assistance,
and Guilty Pleas.

When a criminal defendant pleads guilty, he gives up his constitutional rights against
self-incrimination, to a jury trial, and to confront and cross-examine the government’s
witnesses. 27 The vast majority of criminal defendants plead guilty to resolve the criminal
charges against them. 28 There are two sets of constitutional rules relevant to the waiver
of these important rights and to the process surrounding, and leading up to, any guilty
plea: the Sixth Amendment right to the effective assistance of counsel, and the
Fourteenth Amendment due process standards. 29
All pleas must be voluntary, knowing and intelligent. 30 The defendant must enter the
plea in front of a judge or magistrate who guards, through the plea allocution process,
against coerced or unknowing pleas. 31 In addition, a defendant must have a competent
attorney who, among other things, counsels him so that he does not abandon his rights
without understanding what they mean. 32


Duke v. Cockrell, 292 F.3d 414, 417 (5th Cir. 2002). Duke was originally sentenced, under the plea
bargain, to ten years of probation with the condition that he complete a sexual offender treatment program.
Since he was unable to complete the program, the court re-sentenced him to twenty years in prison. Id. at
416; see also infra Part ___, discussing nolo contendere pleas.
See, e.g., Duke, 292 F.3d at 417 (explaining that “the direct consequences of a defendant's plea are the
immediate and automatic consequences of that plea such as the maximum sentence length or fine”)
(citation omitted).
See Boykin v. Alabama, 395 U.S. 238, 243 (1969); see also U.S. CONST. amends. V and VI. “[A] plea of
guilty is more than an admission of conduct; it is a conviction.” Boykin, 395 U.S. at 242.
Federal criminal cases against 83,391 defendants were terminated during 2004. Ninety percent of these
defendants were convicted. Of those, 96 percent pleaded guilty or nolo contendere. Bureau of Justice
Statistics, U.S. Dept. of Justice, (last visited Feb. 20, 2008).
Approximately 56,146 felony cases were filed in state courts of the seventy-five largest counties during
May 2002. Ninety-five percent of convictions occurring within one year of arrest were by guilty plea.
Bureau of Justice Statistics, U.S. Dept. of Justice, (last visited Feb.
20, 2008).
See U.S. CONST. amends. VI and XIV.
Brady v. United States., 397 U.S. 742, 748 (1970) (stating that “[w]aivers of constitutional rights not
only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences”); see also Bousley v. United States, 523 U.S. 614, 618 (1998)
(noting that a “plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent’”).
See Boykin, 395 U.S at 242 (finding, under due process principles, that trial court must ensure that
record demonstrates defendant’s guilty plea was knowing and voluntary).
See Iowa v. Tovar, 541 U.S. 77, 81 (2004) (noting how “[t]he entry of a guilty plea, whether to a
misdemeanor or a felony charge, ranks as a ‘critical stage’ at which the right to counsel adheres”) (internal
citations omitted).



Given these seemingly robust protections, 33 one might imagine that defendants know
what they are getting themselves into when they plead guilty. Yet courts continue to
pursue the fiction that lawyers are “effective” despite failing to warn about any number of
consequences, and that judges who accept guilty pleas in the absence of knowledge of
such consequences preside over voluntary, knowing and intelligent pleas.
This fiction cuts across all types of consequences deemed “collateral,” so that a
defendant may be surprised to learn that his guilty plea meets constitutional standards
even if taken in the absence of knowledge of, for example, mandatory sex offender
registration; 34 mandatory deportation; 35 loss of the right to vote; 36 loss of public housing
for family members, even if the defendant does not live in that housing; 37 revocation of a
driver’s license; 38 discharge from the armed forces; 39 and even, in some jurisdictions, the
statutory minimum sentence for the crime to which he is pleading guilty and the date that
he becomes eligible for parole. 40


They are “seemingly” robust because anyone who has practiced in the criminal justice system knows that
the words in the constitutional jurisprudence of guilty pleas do not always translate into strong protections.
For example, judges often find pleas “voluntary” despite evidence (or even without having considered) that
a defendant was seriously mentally ill at the time he took the plea, or under the influence of drugs. See,
e.g.,Godinez v. Moran, 509 U.S. 389 (1993) (defendant's guilty plea upheld despite the trial court's
knowledge that defendant was under the influence of medication to control seizures, a byproduct of cocaine
addiction); Patterson v. Hampton, 355 F.2d 470 (10th Cir. 1966) (describing how court accepted guilty plea
without holding hearing on defendant’s mental capacity to plead guilty, despite court’s knowledge of two
state hospital psychiatric examinations and reports). In a similar vein, judges can be quick to ignore
evidence that a defendant could not knowingly and voluntarily waive his Miranda rights due to mental
AMERICAN CRIMINAL COURTHOUSE 203-07 (2005) (describing how judge rejected testimony of three
experts, including director of psychology department for county courts, that the defendant was too mentally
retarded to knowingly waive his Miranda rights).
See, e.g., Doe v. Weld, 954 F.Supp. 425, 438 (D. Mass. 1996) (denying juvenile sex offender’s motion
for preliminary injunction against Massachusetts’ Megan’s Law and finding that “entering the guilty plea
without knowledge of the potential for registration and community notification does not render his plea
involuntary and, thus, does not violate the Constitution”).
See State v. Paredez, 101 P.3d 799, 803 (N.M. 2004) (citing cases from numerous Circuit Courts of
Appeal finding deportation to be a collateral consequence).
See, e.g., Meaton v. United States, 328 F.2d 379, 381 (5th Cir. 1964).
See generally Alicia Werning Truman, Note, Unexpected Evictions: Why Drug Offenders Should Be
Warned Others Could Lose Public Housing If They Plead Guilty, 89 IOWA L. REV. 1753 (2004); see also
Dep’t. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002).
See, e.g., Moore v. Hinton, 513 F.2d 781, 782 (5th Cir. 1975).
See, e.g.,Redwine v. Zuchert, 317 F.2d 336 (D.C. Cir. 1963) (per curiam).
See Brown v. Perini, 718 F.2d 784, 788 (6th Cir. 1983) (noting how “[t]his Circuit has expressly declined
to consider parole eligibility a direct consequence of a guilty plea”); see also Meyers v. Gillis, 93 F3.d
1147, 1153 (3d Cir. 1996) (stating that “[i]t is well settled that the Constitution does not require that a
defendant be provided with information concerning parole eligibility”). But see Michel v. United States,
507 F.2d 461, 463 (2d Cir. 1974) (explaining that defendant must be advised of parole term that
automatically attaches to sentence of imprisonment); Craig v. People, 986 P.2d 951, 963 (Colo. 1999) (en
banc) (finding that "[m]andatory parole is a direct consequence of pleading guilty to a charge which
subjects a defendant to immediate imprisonment because it has an 'immediate and largely automatic effect
on the range of possible punishment’") (internal citation omitted); People v. Catu, 825 N.E.2d 1081, 108283 (N.Y. 2005) (holding that mandatory post-release supervision is a direct consequence that requires
notification to defendant).


Due Process and Collateral Consequences: No Duty to Warn Defendants

Due process is “the dominant source of constitutional regulation” in the plea
bargaining arena. 41 The body of law distinguishing direct from collateral consequences
arises from the jurisprudence of plea bargains, namely the requirement that guilty pleas
must be knowing and voluntary to satisfy due process. 42 The knowledge prong
establishes the minimum amount of information that a defendant must possess before a
court may accept his guilty plea; the due process clause speaks to the role of both defense
counsel and the trial judge as providers of this information. 43
The question is: exactly what information must a defendant possess in order to make
his plea valid under the Due Process Clause? The general answer is very little beyond the
criminal sanction that the trial court can impose through the jurisdiction’s penal
sentencing laws.
Brady v. United States: The Doctrinal, and Doctrinally Flawed, Cornerstone of
the Collateral Consequences Rule
The United States Supreme Court has never addressed the issue of whether a
defendant’s ignorance of the collateral consequences of his guilty plea violates due
process. 44 However, lower federal and state courts have established what this Article
refers to as the “collateral consequences rule,” namely, that lack of knowledge about
collateral consequences will not cause a guilty plea to violate constitutional norms.
The vast majority of decisions considering claims of a due process violation based on
pre-plea lack of information about a collateral consequence relate to deportation. As the
New Mexico Supreme Court recently noted:
Each federal circuit that has directly considered the issue has held that
deportation is a collateral consequence of pleading guilty so that the trial
court is not required to inform the defendant of the immigration
consequences of his or her plea. Furthermore, the remaining federal
circuits that have not directly addressed the issue have signaled that they
would reach the same holding. 45

WAYNE R. LAFAVE, CRIMINAL PROCEDURE § 2.7(a) (3d ed. 2000).
See Brady v. United States, 397 U.S. 742, 747 n.4 (1970).
For constitutional, ethical and practical reasons, prosecutors do not generally communicate with a
represented defendant unless defense counsel is present. Thus, the prosecutor is not the party responsible
for communicating information about direct or collateral consequences to a defendant. However, a
prosecutor can cause a guilty plea to violate the Due Process Clause if she affirmatively misrepresents a
consequence of a conviction and if this misrepresentation is not corrected. See, e.g., United States v.
Russell, 868 F.2d 35, 36 (D.C. Cir. 1982) (holding that, since the “record on appeal makes it clear that the
prosecution made misrepresentations concerning the deportation consequences of the defendant's plea . . .
we must vacate the defendant's guilty plea”); United States v. Briscoe, 432 F.2d 1351, 1354 (D.C. Cir.
1970) (finding that “[c]alculations of the likelihood of deportation may thus rightly be included in the
judgment as to whether an accused should plead guilty, and any actions by Government counsel that create
a misapprehension as to that likelihood may undercut the voluntariness of the plea”).
See, e.g., Bustos v. White, 2007 WL 914229, at *6 (D.S.C. Mar. 22, 2007) (noting how “[t]he Supreme
Court of the United States has not addressed whether parole ineligibility is a direct consequence of a plea”).
State v. Paredez, 101 P.3d 799, 803 (N.M. 2004).



Like the First Circuit’s opinion in Steele, described in the Introduction, most courts
tightly circumscribe the constitutional right to information about collateral consequences.
Yet, they do so on the basis of a doctrinally flawed analysis. The courts have
fashioned the collateral consequences rule through reliance on the Supreme Court’s
statement, in Brady v. United States, that defendants must be “fully aware of the direct
consequences, including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel.” 46 These brief words in Brady did not result from
careful reasoning about exactly what type and quantum of information a defendant must
have to meet the “knowledge” requirement for guilty pleas. Indeed, as knowledge of
consequences was not the issue presented in Brady, the Court did not go any further in
defining what it meant by “direct consequences.” Instead, the words spring from dicta in
a decision that focused on a different aspect of the plea process, that of voluntariness.
Whatever its force in the original opinion, the “direct consequences” language
from Brady has become the doctrinal cornerstone of the distinction between direct and
collateral consequences. 47 Closer examination of Brady illustrates why this is such shaky
ground upon which to build a rule, particularly one that has such an enormous effect on
the transparency and legitimacy of the criminal justice system.
Robert Brady was charged under a federal kidnapping statute which allowed for the
death penalty only upon a jury verdict. The judge could not impose death without such a
verdict, and thus a guilty plea foreclosed a death sentence. Brady originally pled not
guilty, but later changed that plea and the judge sentenced him to fifty years in prison. 48
Some years later, Brady filed a petition for habeas corpus. Among other things, Brady
challenged the voluntariness of his guilty plea “because [the federal statute under which
he was prosecuted] operated to coerce his plea, because his counsel exerted
impermissible pressure upon him, and because his plea was induced by representations
with respect to reduction of sentence and clemency.” 49 He did not claim that lack of
knowledge invalidated his plea. 50
Brady is perhaps best known for clearly stating the rule that guilty pleas “not only
must be voluntary but must be knowing, intelligent acts done with sufficient awareness of
the relevant circumstances and likely consequences.” 51 The bulk of the Court’s analysis
examined Brady’s claim that his guilty plea was coerced, and thus focused on


Brady, 397 U.S. at 755 (internal quotation omitted) (emphasis added).
See Chin & Holmes, supra note ___, at 726 (noting how “[t]he collateral consequences rule is based in
large part on the Brady Court's implication that a trial court need advise a defendant only of direct
consequences to render a plea voluntary under the Due Process Clause”).
Brady, 397 U.S. at 743-44 (noting that 50-year sentence was later reduced to 30-year sentence).
Brady, 397 U.S. at 744.
Brief for the Petitioner at 18, Brady v. United States, 397 U.S. 742 (1970) (No. 270), 1969 WL 119963
(arguing that “the fear of the death penalty was a factor, if not the primary factor, in influencing the
Petitioner to plead guilty to the kidnapping charge against him, and, therefore, his guilty plea was
involuntary and in violation of his rights under the Fifth and Sixth Amendments to the Constitution of the
United States”). However, the Supreme Court did analyze the knowledge prong in a brief portion of its
opinion. Brady, 397 U.S. at 756-57; see also infra text accompanying notes ___ to __, noting knowledge
discussion in Brady.
Brady, 397 U.S. at 748. However, as the Court noted, “[t]he requirement that a plea of guilty must be
intelligent and voluntary to be valid has long been recognized.” Id. at 747 n.4.



voluntariness. At the end of its voluntariness analysis, the Court quoted from Shelton v.
United States, an unrelated Fifth Circuit case:
The standard as to the voluntariness of guilty pleas must be essentially
that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
“[A] plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable promises), or
perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business (e.g. bribes).” 52
In this quote the Court clearly references awareness of “direct consequences” in
determining the validity of a guilty plea. This has led some commentators to declare that
“[t]he Supreme Court created the rule that the Due Process Clause requires the trial court
to explain only the direct consequences of conviction.” 53 However, neither Shelton nor
Brady examined a defendant’s claim of lack of knowledge of either direct or collateral
consequences of a guilty plea. Shelton claimed that promised leniencies, about such
things as dismissal of other criminal charges and a specific sentence of imprisonment, led
to his involuntary guilty plea. 54 These promises all related to Shelton’s criminal case and
not to any consequences “collateral to that proceeding. Shelton, like Brady, focused on
whether such promises and inducements could operate to render a plea involuntary. 55
The Fifth Circuit test stated that a plea taken with awareness of direct consequences
“must stand unless induced by,” and then proceeded to list threats, misrepresentations or
improper promises as the three ways in which a plea may be involuntary. The original
Fifth Circuit dissent, from which the en banc court later drew its voluntariness definition,
described two categories of guilty pleas that would qualify as involuntary. The first
related to coercion by physical or psychological pressure or threats. The second related

Brady at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc))
(emphasis added). The en banc Fifth Circuit decision, in turn, quotes from the dissenting judge from the
original Fifth Circuit panel in the case. Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en
banc) (quoting Shelton v. United States, 242 F.2d 101 (5th Cir. 1957)).
Chin & Holmes, supra note ___, at 706. For an interpretation of the Fifth Circuit voluntariness test that
differs in significant ways with respect to the due process analysis in this Article, see generally id. at 72630 (analyzing Brady’s adoption of Fifth Circuit voluntariness test as “the Court accept[ing] the collateraldirect distinction in the context of what consequences the trial judge was required to explain to ensure
Shelton, 242 F.2d at 101.
In the wake of Brady, many lower courts have conflated the requirements of knowledge and
voluntariness. See, e.g., United States v. Hernandez, 234 F.3d 252, 255 n.3 (5th Cir. 2000) (noting how
“[t]he terms ‘voluntary’ and ‘knowing’ are frequently used interchangeably, although, strictly speaking, the
terms embody different concepts”); see also John L. Barkai, Accuracy Inquiries For All Felony and
Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants?, 126 U. PA. L. REV. 88, 91 n.16 (1977)
(noting how “[i]t is sometimes difficult to discern where the concept of ‘voluntariness’ ends and that of
‘intelligence’ begins”). But see Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985) (noting how the
Fifth Circuit has “consistently held that a guilty plea must not only be entered voluntarily, but also
knowingly and intelligently: the defendant must be aware of the relevant circumstances and the likely
consequences”) (internal quotations omitted).



to a defendant’s misapprehension of promises that were not or could not be kept. In other
words, inducements that might render a plea involuntary. 56 Nowhere in this dissent, in
any of the other Shelton opinions, or in Brady itself, is there any consideration or
discussion of the claim that lack of information about a consequence other than a penal
sanction might render the guilty plea invalid under the Due Process Clause. These cases
are all about coercion by threat or improper inducement, which go to the voluntariness of
a guilty plea, not knowledge.
The “direct consequences” language in Brady is thus an unexplored definition that
comprises one part of a multi-factor voluntariness test. But it could also be characterized
as dicta, an undefined precondition to the true voluntariness definition which follows. As
the original Shelton panel’s majority opinion noted: “That [the guilty plea] was
understandingly made in this case is not controverted, but the question is, was the guilty
plea made voluntarily?” 57 Thus, even if the Fifth Circuit meant to conflate the definition
of knowledge into what it clearly termed “the relevant definition of voluntariness,” 58
knowledge was not an issue before that court.
After concluding its voluntariness discussion, the Supreme Court in Brady did
undertake a short exploration of the knowledge prong:
The record before us also supports the conclusion that Brady's plea was
intelligently made. He was advised by competent counsel, he was made
aware of the nature of the charge against him, and there was nothing to
indicate that he was incompetent or otherwise not in control of his mental
faculties; once his confederate had pleaded guilty and became available to
testify, he chose to plead guilty, perhaps to ensure that he would face no
more than life imprisonment or a term of years. Brady was aware of
precisely what he was doing when he admitted that he had kidnaped [sic]
the victim and had not released her unharmed. 59
The Court addressed this issue in order to reject the argument that Brady’s plea was
invalid because the Supreme Court, nine years after his plea, invalidated that part of the
federal kidnapping statute which allowed for a death sentence by jury verdict only. The
Court thus found that “absent misrepresentation or other impermissible conduct by state
agents, a voluntary plea of guilty intelligently made in the light of the then applicable law
does not become vulnerable because later judicial decisions indicate that the plea rested
on a faulty premise.” 60 This brief discussion of the knowledge requirement evinces a

Shelton, 242 F.2d at 114-115. The dissent first described this second category as “includ[ing] all the
cases in which for one reason or another the defendant was not fully aware of all the consequences of his
plea.” Id. at 114. Although this sounds like “knowledge,” the dissenting judge went on to support this
statement with citation to cases that all relate to misapprehension by a defendant due to promises that were
not or cannot be kept. Id.
Shelton, 242 F.2d at 112. In rehearing the case en banc, the Court found that “[t]he original opinion
sufficiently sets out the facts except as to those matters which will be added here,” thus accepting the
finding that the knowledge requirement was uncontroverted. Shelton v. United States, 246 F.2d 571, 572
(5th Cir. 1957) (en banc).
Shelton, 246 U.S. at 572.
Brady, 397 U.S. at 756.
Brady, 397 U.S. at 757 (citing Von Moltke v. Gillies, 332 U.S. 708 (1948)).



concern with affirmative misrepresentations of direct consequences, but does not address
collateral consequences.
It is clear that knowledge stands separately from voluntariness in the due process
requirements for guilty pleas. It is also clear that the Supreme Court has never directly
examined the constitutionality of a guilty plea taken without knowledge of a collateral
consequence. Yet many lower federal and state courts blindly cite Brady in fashioning
the collateral consequences rule. As one court quite starkly put it, quoting Brady’s
“direct consequences” language: “We presume that the Supreme Court meant what it
said when it used the word ‘direct’; by doing so, it excluded collateral consequences.” 61
This is an incorrect presumption, and rests on shaky doctrinal ground.
b. Varying Definitions of Brady’s “Direct Consequences” Language
Although the Court in Brady did not define “direct consequences,” a long line of
(generally sparsely-reasoned) lower federal and state court decisions following Brady
have crafted a definition by omission. They have done this by labeling particular
consequences “collateral,” and then rejecting defendants’ requests to withdraw guilty
pleas due to lack of knowledge of those consequences. Building on the weak foundations
of the Brady dicta, the lower courts have developed three different, and largely
unsatisfactory, definitions of a “direct” consequence: (1) whether the consequence is
“definite, immediate and largely automatic”; (2) whether the consequence is within the
“control and responsibility” of the sentencing court; and (3) whether the consequence is
i. “Definite, Immediate and Largely Automatic”
Three years after Brady, the Fourth Circuit offered what is probably the most
widely-cited definition of a “direct consequence.” In Cuthrell v. Director, Patuxent
Institution, the court noted that “[t]he distinction between ‘direct’ and ‘collateral’
consequences of a plea, while sometimes shaded in the relevant decisions, turns on
whether the result represents a definite, immediate and largely automatic effect on the
range of the defendant's punishment.” 62
Joseph Cuthrell had claimed that his guilty plea was involuntary because he had
not been warned that it might result in civil commitment under Maryland’s Defective
Delinquents Act. 63 At the time, such commitment either replaced or counted towards any
term of imprisonment that the sentencing court had imposed, 64 although it was
indeterminate in length. 65 Using the “definite, immediate and largely automatic” test, the
court rejected Cuthrell’s claim. It found that the fact that commitment was not definite,

United States v. Sambro, 454 F.2d 918, 922 (D.C. Cir. 1971) (en banc).
475 F.2d 1364, 1366 (4th Cir. 1973).
Cuthrell, 475 F.2d at 1367. The Maryland Defective Delinquent Act resulted from the legislature’s
adoption of a study “recommending that a separate institution be established for ‘criminal mental and
emotional defectives' with a diagnostic clinic to determine what persons were susceptible to specialized
treatment in the institution.” Tippett v. Maryland, 436 F.2d 1153, 1155 (4th Cir. 1971).


See Id. at 1155-56 (explaining Maryland Defective Delinquent Act).
Cuthrell, 475 F.2d at 1367.



and that the Maryland Act mandated a separate civil proceeding, meant that Cuthrell was
not entitled to any warnings as a matter of due process. 66
Many courts cite Cuthrell’s “definite, immediate and largely automatic” language
in setting out their criteria for determining whether a particular consequence is direct. 67
However, as Texas’ highest court for criminal appeals recently noted in a rather scathing
critique, with respect to its definition of “direct” the Fourth Circuit offered “no citation to
statute or case law or any other legal authority; there is merely the assertion that it is
so.” 68 The Cuthrell court gave only one example of a “direct” consequence: parole
eligibility. The court explained that “[t]he reason for this conclusion is that the right to
parole has become so engrafted on the criminal sentence that such right is assumed by the
average defendant and is directly related in the defendant's mind with the length of his
sentence.” 69 This reason, however, does not coincide with Cuthrell’s definition of
“direct.” Parole may be engrafted, but it is not immediate, as it must come after a term of
imprisonment. It is not automatic, but rather is a matter that a parole board must
consider. It is not definite, since release is a matter of discretion with the board.
The Cuthrell parole dictum is quite important in how it takes into account the
defendant’s perspective on the consequences of his guilty plea. While it correctly
identifies this critical value in the voluntariness inquiry, it completely fails to capture that
value in the definition that it crafted, upon which so many state and federal courts now

Punitive v. Non-Punitive Consequences

The same Texas court that eschewed the Cuthrell approach came up with its own
manner of determining whether a particular consequence merits warnings before a guilty
plea. In Mitschke v. Texas, the court built upon the direct-collateral dichotomy for
warnings, finding that “[e]ven if the consequence is direct, . . . imposition of it without
admonishment might still be justified as remedial and civil rather than punitive.” 70
John Mitschke sought to withdraw his guilty plea, arguing that failure to inform
him about mandatory sex offender registration based on his conviction violated his due

Cuthrell, 475 F.2d at 1366 (emphases in original).
See, e.g., United States v. United States Currency in the Amount of $228,536.00, 895 F.2d 908,
916 (2d Cir. 1990) (noting how, under the Cuthrell standard, “civil forfeiture is not a direct
consequence of a guilty plea because it does not represent a definite, immediate and largely
automatic effect on the range of the defendant's punishment”) (internal citation omitted); Torrey v.
Estelle, 842 F.2d 234, 236 (9th Cir. 1988). A Westlaw “citing references” check of the Cuthrell
decision on January 24, 2008 shows 177 decisions citing to it, only three of them distinguishing or
disagreeing with the Fourth Circuit.
Mitschke v. State, 129 S.W.3d 130, 132 (Tx. Crim. App. 2004). The court in Mitschke noted other major
flaws in Cuthrell. First, “[w]hy is the distinction [between direct and collateral] made on the basis of effect
on the range of punishment? The range of punishment is set by law. If we require that a plea of guilty
affect the range of punishment, very few consequences will ever be direct.” 133. Second, “[w]hy
must the effect be immediate?” The court noted how some consequences, such as the prohibition on
possession of a firearm after a felony conviction or sex offender registration, are both definite and
automatic. However, they do not flow immediately after punishment, because they apply only after an
incarcerated person is released, which could be years after the sentence. Id.
Cuthrell, 475 F.2d at 1366 (internal quotations omitted) (emphasis added).
Mitschke, 129 S.W.3d at 135.



process rights. The court agreed that “the consequence, registration as a sex offender, is
definite. It is also completely automatic; if a defendant pleads to an enumerated offense,
he must register; there are no exceptions, no wiggle room, no conditions which relieve
him of that obligation.” 71 It denied Mitschke’s claim, however, finding that not all direct
consequences merit constitutionally-mandated warnings.
The court found that “[a] statute that can fairly be characterized as remedial, both
in its purpose and implementing provisions, does not constitute punishment even though
its remedial provisions have some inevitable deterrent affect, and even though it may
indirectly and adversely affect, potentially severely, some of those subject to its
provisions.” 72
Under this definition, sex offender registration was non-punitive and thus no
warnings were required.

“Control and Responsibility”

Immigration law reforms of the mid-1990s took almost all discretion away from
immigration authorities to grant relief from deportation for large classes of criminal
convictions. 73 Since that time, a number of defendants have argued that deportation
based on these convictions is now an automatic, definite consequence that requires preplea warnings. A number of courts have rejected such claims by relying on yet a third
way to draw the line between consequences that require or do not require warnings,
namely by privileging consequences that are under the “control and responsibility” of the
sentencing court.
Abdel-Karim El-Nobani was a lawful permanent resident of the United States.
Shortly after El-Nobani pled guilty to conspiracy to traffic food stamps and alienharboring, the Immigration and Naturalization Service began deportation proceedings
against him. 74 In seeking to withdraw his guilty plea, El-Nobani argued that he had not
been warned about the deportation consequences of that plea. Although the Sixth Circuit
ruled against El-Nobani on procedural grounds, it went on to state that “the automatic
nature of the deportation proceeding does not necessarily make deportation a direct
consequence of the guilty plea. A collateral consequence is one that remains beyond the
control and responsibility of the district court in which that conviction was entered.” 75
Although this definition quite neatly allows for denial of claims of due process
violations for failure to warn about immigration consequences, and some courts may in
fact have chosen it rather than Cuthrell for precisely this purpose, the “control and
responsibility” language predates the 1996 immigration law amendments. As early as
1974, the Second Circuit used similar language in denying a deportation-based plea
withdrawal request, finding that “[d]eportation . . . was not the sentence of the court
which accepted the plea but of another agency over which the trial judge has no control


See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009.
El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002).
El-Nobani, 287 F.3d at 421 (internal quotations omitted).



and for which he has no responsibility.” 76 The court further explained that the directcollateral distinction does not depend “upon degree of certainty with which the sanction
will be visited upon the defendant.” Instead, the trial judge “must assure himself only
that the punishment that he is meting out is understood.” 77
2. Effective Assistance of Counsel and Collateral Consequences
Defense counsel owes a duty of “effective assistance” to his client. 78 The nature of
counsel’s relationship with her client is very different than the relationship between a
judge, who simply presides over the guilty plea, and a defendant. Despite this, many
courts have improperly imported due process standards into decisions analyzing
ineffective assistance so that the trial judge and defense counsel are held to the same
standard as information-providers in the guilty plea process.
In the years since Gideon v. Wainwright made the right to counsel binding upon the
states, 79 the courts have cultivated a rather anemic right to the “effective assistance of
counsel” under the Sixth Amendment. 80 Under the seminal two-prong test for ineffective
assistance, articulated in Strickland v. Washington and later applied to guilty pleas, a
defendant must establish that: (1) counsel’s performance fell below an objective standard
of reasonable attorney performance, and (2) there is a reasonable probability that, but-for
counsel’s incompetent performance, he would not have pled guilty.81 The standard is
highly deferential to the autonomy of defense lawyers, illustrated by the strong
presumption in Sixth Amendment jurisprudence that counsel’s decisions are
“strategic.” 82
In the context of collateral consequences, the right to counsel is virtually nonexistent. 83 Courts rely on the same direct-collateral divide as they do in their due process
decisions. Federal constitutional law thus says little about what defense counsel must tell
her client prior to any plea and quite a bit about what defense counsel need not disclose.

Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) (basing holding on Federal Rules of Criminal
Procedure and not the Constitution).
Michel, 507 F.2d at 466.
U.S. CONST. amend. VI; see also McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (noting how
“[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel”).
See Gideon v. Wainwright, 372 U.S. 335 (1963).
See generally Klein, supra note ___; Note, supra note ___.
See Strickland v. Washington, 466 U.S. 668 (1984); see also Rompilla v. Beard, 545 U.S. 374, 380
(2005) (re-stating Strickland’s two-prong test). In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held
“that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective
assistance of counsel.” Id. at 58.
See Strickland, 466 U.S. at 689 (noting that for claims of ineffective assistance of counsel, “[j]udicial
scrutiny of counsel's performance must be highly deferential” and that “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial strategy”)
(internal quotations omitted).
There is one general exception, which is when defense counsel affirmatively misrepresents the collateral
consequence. See, e.g. Roberti v. Florida, 782 So. 2d 919, 920 (Fla. Dist. Ct. App. 2001) (holding that
“[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of
counsel and provides a basis on which to withdraw the plea”). But see Commonwealth v. Padilla, No.
2006-SC-000321-DG, 2008 WL 199818 (Ky. Jan. 24, 2008) (holding that defense counsel's mistaken
advice to his client about the potential deportation consequences of a guilty plea provided no basis for
vacating defendant's sentence).



The South Carolina Supreme Court’s recent examination of an ineffective assistance
claim starkly illustrates the merger of due process and effective assistance norms. 84
Joseph Page pled guilty to criminal sexual conduct and other charges in exchange for a
promise of no more than twenty years in prison. Neither Page’s lawyer nor the judge
informed him about South Carolina’s Sexually Violent Predator Act (SVPA). 85 This Act
applies to individuals convicted of a “sexually violent offense” who “suffer[] from a
mental abnormality or personality disorder that makes the person likely to engage in acts
of sexual violence if not confined in a secure facility for long-term control, care, and
treatment.” 86 Such individuals are eligible for involuntary commitment “until such time
as the person's mental abnormality or personality disorder has so changed that the person
is safe to be at large.” 87
As the Page Court noted, the criminal conviction is the triggering event for South
Carolina’s SVPA; it sets in motion a process that includes a separate trial where the state
must prove beyond a reasonable doubt that the person qualifies as a “sexually violent
predator.” 88 Because of this, involuntary commitment did not “flow directly from
[Page’s] guilty plea,” but was instead collateral.89 The Court held that Page’s lawyer had
no duty to inform him about the SVPA before he pled guilty. 90


Page v. State, 615 S.E.2d 740 (S.C. 2005).
Id. at 741. Between the 1998 passage of the South Carolina SVPA and December 2004, the state civilly
committed eighty-six people. Fifteen of those people were released in those six years. WASHINGTON
[hereinafter, COMPARING STATE LAWS].
S.C. CODE ANN. § 44-48-30.
S.C. CODE ANN. § 44-48-100.
Page, 615 S.E.2d at 742; see also S.C. CODE ANN. §§ 44-48-10 through 170.
Page, 615 S.E.2d at 742.
Page, 615 S.E.2d at 742. The South Carolina statute is a typical SVPA; most of the nineteen states that
now have such a statute modeled them on the Kansas SVPA, which the United States Supreme Court
upheld in 1997. See Kansas v. Hendricks, 521 U.S. 346 (1997) (rejecting ex post facto and double jeopardy
challenges to Kansas’ SVPA and finding that Act’s procedures comported with due process standards); see
also Page, 615 S.E.2d at 742 (noting that South Carolina’s SVPA is patterned after Kansas’).
There are several things to note with respect to the Page decision, which is representative of the
general approach that most courts take in analyzing defendants’ attempts to withdraw guilty pleas due to
lack of information about various consequences. First, the South Carolina SVPA is not triggered only by a
sex crime conviction. The definitional section for “sexual violent offense” includes “any offense for which
the judge makes a specific finding on the record that based on the circumstances of the case, the person's
offense should be considered a sexually violent offense.” S.C. CODE ANN. § 44-48-30(2)(o). South
Carolina is not unique in having such a discretionary, catch-all triggering definition. See, e.g., KAN. STAT.
ANN. § 59-29a02(e)(13); see also supra at Part ___, discussing non-sexual offense provisions.
Second, the list of other crimes in the definitional section of the South Carolina SVPA is long, and
includes such crimes as employing “someone under the age of eighteen years to appear in a state of
sexually explicit nudity . . . in a public place,” where mistake of age is not a defense to a prosecution,” S.C.
CODE ANN. § 16-15-387 (amended 2004), as well as a number of obscenity crimes involving minors, many
of which are also strict liability crimes. S.C. CODE ANN. § 16-15-305 to 355. It also includes sodomy, see
§ 16-15-120 (criminalizing “Buggery”), although that triggering crime is certainly unconstitutional in the
wake of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) (holding that a Texas
statute outlawing consensual sexual contact between persons of the same gender violates due process).
While the crime of “buggery” has been in the South Carolina criminal code since 1712, see Statutes of
South Carolina, Vol. 2, (Columbia: A.S. Johnston, 1837), pages 465 and 493, enacted Dec. 12, 1712, the



The Page decision slips loosely between due process and ineffective assistance of
counsel norms. Initially presenting the issue as one of due process, 91 the Court relied on
the two-prong Strickland test for ineffective assistance to frame its analysis.92 The
decision then discusses two cases stating that due process requires that a defendant be
told only of direct consequences of his criminal conviction. 93 While the Court does go
on to cite one ineffective assistance case, it follows this with a string citation to four more
due process cases. These four, as well as the two cited earlier in the decision, all discuss
the collateral-direct distinction in the context of a judge’s duty to warn a defendant,
during the plea allocution, about consequences of the conviction. Thus, only one of the
cases cited in Page considers the role of defense counsel in warning a client about
collateral consequences.
This importation of the due process-based collateral consequences rule into the
ineffective assistance realm is highly problematic because it treats the role of defense
counsel and the trial judge as identical. In their insightful exploration of the myriad
doctrinal weaknesses of the collateral consequences rule, Professor Gabriel Chin and
Richard Holmes note that:
[J]ust as defense counsel and the court have different duties of loyalty,
investigation, and legal research as a result of their distinct roles as
advocate and decisionmaker, there is no reason to assume that their
obligations of advising the accused of the risks and benefits of pleading
guilty should be identical. The judge is charged with ensuring that the plea
is knowing, voluntary, and intelligent; counsel's job is to assist with the
determination that a plea is a good idea, which encompasses a broader
range of considerations. 94
SVPA, which explicitly includes buggery in the definitional section of “sexually violent offenses,” was
enacted in 1998.
This list demonstrates that Page Court meant what it said in reasoning its case on a strict directcollateral distinction, where there is no duty to warn when the consequence does not flow directly from the
conviction. The Page decision, and others like it, cannot be explained as limiting the duty to warn to
instances of true surprise to a defendant. While one might argue that a person convicted of forcible rape is
on fair notice that involuntary commitment under an existing SVPA is possible or even likely, it is hard to
make that argument for many crimes that could fall under the catch-all definitional section in South
Carolina -- for example a burglary committed against an ex-girlfriend as revenge for her infidelity – or
some of the strict liability crimes.
Page, 615 S.E.2d at 741 (asking: “Was Petitioner’s plea entered knowingly, voluntarily, and intelligently
where Petitioner was not informed he would be potentially liable under the Sexually Violent Predator Act
after completing his sentence?”). The Court also noted that the trial judge did not discuss the SVPA with
Page before his plea. Id.
Id; see also supra text accompanying notes ___ to ___, discussing two-prong Strickland test.
Page, 615 S.E.2d at 742-43 (citing Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366-67 (4th Cir.
1973) and Brown v. State, 412 S.E.2d 399 (S.C. 1991)).
Chin & Holmes, supra note __ at 727; see also id. at 724-36 (setting out five categories of cases which
suggest that the collateral consequences rule is invalid when applied to effective assistance of counsel). In
an early and comprehensive critique of the collateral consequences rule, Guy Cohen describes the
importation of due process principles into the effective assistance realm as “distort[ing] the jurisprudence
upon which it is based.” Note, Guy Cohen, Weakness of The Collateral Consequences Doctrine:
Counsel’s Duty to Inform Aliens of the Deportation Consequences of Guilty Pleas, 16 FORDHAM INT’L L. J.
1094 (1993).



Yet most of the courts examining defendants’ claims of lack of knowledge, like Page, fail
to make any distinction between defense counsel and the trial judge when discussing
responsibility to warn about collateral consequences. 95
Certainly, the due process protections surrounding guilty pleas and the right to
counsel for that plea are not mutually exclusive. If a defendant receives ineffective
assistance of counsel leading up to a guilty plea, then that plea cannot be made
knowingly, voluntarily and intelligently. 96 But the fact that ineffective assistance means
that a plea also violates due process does not mean that there is ineffective assistance only
when the plea violates due process. The judge and defense counsel play very different
roles with respect to a person pleading guilty in a criminal case. Indeed, the labels of
“defendant” or “client” in relation to those roles make the point. While the judge must
ensure, on the record, that any plea entered is done voluntarily and with the requisite
knowledge, she is not charged with the underlying counseling of the defendant required
before the plea. The judge’s role is much more limited, both in terms of time spent with a
defendant and the extremely limited scope of permissible inquiry. For example, the
judge can ask the defendant if anyone is forcing him to plead guilty, but generally cannot
explore with the defendant the wisdom of that plea. 97
In State v. Paredez, the New Mexico Supreme Court recognized the different roles of
judge and defense counsel in the context of the duty to advise defendants about the
particularly severe collateral consequence of deportation. The trial judge had followed a
state statute requiring judges only to advise defendants that a conviction “may have an
effect upon the[ir] . . . immigration or naturalization status.” 98 In reviewing that warning,
the Court found that the Due Process Clause did not require more, despite the fact that
deportation was automatic in Mr. Paredez’s case. 99 The Court did not, however, treat
defense counsel’s responsibilities as identical to the judge’s: “counsel is in a much better
position to ascertain the personal circumstances of his or her client so as to determine
what indirect consequences the guilty plea may trigger.” 100 The Court did not stop with
its holding that defense counsel must correctly advise her client about the automatic


Indeed, some courts insist that there is no such distinction, at least in the guilty plea context. See, e.g.,
Morales v. State, 104 S.W.3d 432, 434 (Mo. Ct. App. 2003) (relying on state statute requiring judges to
warn defendants only about direct consequences in support of finding that defense counsel must also warn
only about such consequences and noting that, “[f]ollowing a guilty plea, the effectiveness of counsel is
relevant only to the extent that it affected whether or not the plea was made voluntarily and knowingly”)
(citation omitted).
See United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002); see also Downs-Morgan v. United States,
765 F.2d 1534, 1538 (11th Cir. 1985).
Such a conversation would not be protected by attorney-client confidentiality rules and could of course
lead to incriminating statements on the record in violation of the defendant’s Fifth Amendment rights.
State v. Paredez, 101 P.3d 799, 801 (N.M. 2004) (citing N.M. RULES ANN. § 5-303 (West 2007))
(emphasis added).
Id. at 803 (stating that “while it certainly would have been prudent for the district court to have been
more specific in its admonition to Defendant or to inquire into Defendant's understanding of the deportation
consequences of his plea, we hold that the district court was not constitutionally required to advise
Defendant that his guilty plea to criminal sexual contact of a minor almost certainly would result in his
Id. at 803 (internal quotations omitted).



nature of deportation. 101 It went one step further, holding that “an attorney's non-advice
to an alien defendant on the immigration consequences of a guilty plea would also be
deficient performance.” 102
The New Mexico approach, however, is unique in imposing an affirmative duty on
defense lawyers to advise their clients about immigration, or any other consequence,
under the Sixth Amendment. The Page case is representative of the generally flawed
analysis of the Sixth Amendment collateral consequences line of cases because it imports
the due process analysis into the effective assistance context without any reasoning. That
critique aside, the current rule in almost all jurisdictions is that a defendant has no right,
under either due process or effective assistance, to information about the collateral
consequences of a guilty plea.

The Outdated Landscape of Collateral Consequences

The Brady decision came well before the current reality of widespread, harsh
collateral consequences. The problem is not only the flawed doctrinal origins of the
collateral consequences rule. It is also the development of that rule in a context that is
now radically different, with myriad collateral consequences that affect individuals, their
families and their communities. The collateral consequences rule is outdated for three
interrelated reasons: (1) the rise in the percentage of criminal prosecutions that are
resolved by guilty plea; (2) increased prosecution of minor offenses; and (3) the rise in
the number and severity of collateral consequences of criminal convictions.
This country’s adversarial system of criminal justice centers around the tasks of
negotiation and counseling, with the overwhelming majority of defendants pleading
guilty. 103 While plea bargains have long existed,104 the percentage of cases resolved by
guilty pleas has risen sharply in the past few decades:
The proportion of guilty pleas has been moving steadily upward for over
thirty years, and has seen a dramatic increase of over eleven percentage
points just in the past ten years, from 85.4% in 1991. Indeed, the aggregate
national guilty plea rate in federal cases remained under 92% until 1997,
in line with the rough national norm for all criminal systems of about
90%; it is only in the past five years that we have witnessed the rise to a
bizarrely high plea rate. In some districts now, the percentage of
convictions attributable to guilty pleas reaches over 99%. 105


Id. at 804 (“when a defendant's guilty plea almost certainly will result in deportation, an attorney's
advice to the client that he or she ‘could’ or ‘might’ be deported would be misleading and thus deficient”).
Id at 804 (emphasis added); see also State v. Edwards, 157 P.3d 56 (N.M. Ct. App. 2007) (applying
Paredez to sex offender registration context and finding that defense counsel has Sixth Amendment duty to
advise defendant about registration and notification consequences of any guilty plea).
See supra note ___, describing how 95 percent of state convictions and 96 percent of federal
convictions were secured by guilty plea in certain years.
See generally George Fisher, Plea Bargaining's Triumph, 109 YALE L.J. 857 (2000).
Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 STAN. L. REV. 1409, 1415
(2003) (citation omitted).



There are also more minor cases in the criminal justice system than ever before.
Due to such phenomena as “zero-tolerance policing” and “broken windows” theory, 106
misdemeanor and “quality of life” prosecutions have skyrocketed. Under the New York
City Police Department’s “Clean Halls” program, for example, simple trespass arrests
have risen a staggering twenty-five percent since 2002, 107 at a time when crime in New
York City is dropping sharply. 108 For many of these low-level prosecutions, the penal
consequences are relatively minor, including time already served in jail, a fine or
community service. Yet a misdemeanor conviction, or even a conviction for a noncriminal offense, 109 can lead to extremely harsh non-penal consequences, including
deportation and registration as a sex offender.
At the same time that the percentage of guilty pleas and prosecution of minor
offenses has risen, collateral consequences have mushroomed. Individuals convicted of
crimes face both more numerous and harsher collateral consequences of those
convictions. 110 This trend is particularly true for sex offenders. All fifty states and the
District of Columbia now require people convicted of certain sex offenses to register with
their local police departments. 111 The passage of sex offender registry acts (SORAs) was
spurred by the Violent Crime Control and Law Enforcement Act of 1994, 112 which linked
federal funds to the establishment of sex offender registries. 113 In 1996, Congress passed
what is commonly known as “Megan’s Law,” to require public notification of

See Peter A. Barta, Note, Giuliani, Broken Windows, and the Right to Beg, 6 GEO. J. ON POVERTY L. &
POL'Y 165(1999) (summarizing Mayor Giuliani's "zero-tolerance policing" tactics and their ill-effects on
New York City's homeless population); George L. Kelling & James Q. Wilson, Broken Windows, THE
M. Chris Fabricant, Rousting the Cops: One Man Stands Up to the NYPD's Apartheid-like Trespassing
Crackdown, THE VILLAGE VOICE, NOV. 6, 2007.
“In an era of falling felony crime rates but rising arrest numbers, New York City’s courts are
increasingly dealing with low-level misdemeanor offenses that years ago might never have led to arrest,
arraignment and bail. And at the same time, a growing litany of life consequences – the loss of housing,
ineligibility for some jobs, disqualification for government assistance – have been arrayed to target people
found guilty even of petty crimes and non-criminal violations like disorderly conduct. People who get
arrested today are likely to be accused of more minor crimes but face penalties for a conviction that go well
beyond prison or probation.” Jarret Murphy, Awaiting Justice: The Punishing Price of NYC’s Bail System,
CITY LIMITS INVESTIGATES, Fall 2007 (Vol. 31 No. 03) at 6-7 (on file with author).
See, e.g., N.Y. PENAL LAW § 10.00(3) (McKinney 2007).
See JOAN PETERSILIA, WHEN PRISONERS COME HOME 9 (2003) (noting how “[s]ince 1980, the United
States has passed dozens of laws restricting the kinds of jobs for which ex-prisoners can be hired, easing
the requirements for their parental rights to be terminated, restricting their access to public welfare and
housing subsidies, and limiting their right to vote.”); see also Nora V. Demleitner, Preventing Internal
Exile: The Need For Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153,
154 (1999) (noting how, “[i]n conjunction with the exponential increase in the number and length of
incarcerative sentences during the last two decades, collateral sentencing consequences have contributed to
exiling ex-offenders within their country, even after expiration of their maximum sentences”) [hereinafter,
Preventing Internal Exile]. These collateral consequences are not limited to people who have spent time in
prison; many apply to misdemeanor convictions, and a few even to non-criminal convictions. See, e.g., 8
U.S.C. § 1227(a)(2)(A)(i)(1); Higher Education Act of 1965, as amended, 20 U.S.C. § 1091(r).
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, Pub. L.
No. 103-322, 108 Stat. 2038 (1994) (codified as amended at 42 U.S.C. § 14071 (2004)).
42 U.S.C. § 14071(g)(2).



information about certain people registered under SORAs. 114 The most recent
development is involuntary civil commitment of individuals convicted of qualifying
sexual offenses, with laws currently in nineteen states and others pending. 115
The combined effect of these three developments -- higher rates of guilty pleas, an
era of increasing adjudication of minor offenses, and increasing collateral consequences - suggests a need for greater transparency in the plea bargain process. Defendants should
be made aware of the myriad consequences of any guilty plea and, in particular, of the
most serious consequences. The collateral consequences rule is particularly problematic
when a defendant faces a relatively minor penal consequence yet also faces, and is
unaware, of an overwhelmingly more serious “collateral” consequence.



The problematic nature of the collateral consequences rule is illustrated when
applied to the harsh consequence of involuntary commitment under a SVPA. This
section briefly explains the typical modern statute allowing for commitment of “sexually
violent predators.” It then describes how most courts that have examined the duty to
warn about an SVPA have applied the collateral consequences rule.

A Growing Trend: Involuntary Commitment of “Sexually Violent

Involuntary commitment of people convicted of certain sex offenses has been
described as “a growing national movement that is popular with politicians and
voters.” 116 Many states include the charged term “sexually violent predator” in the title
of their laws, and legislatures continue to enact them despite evidence that they are both
extremely costly and do not adequately rehabilitate those committed. 117
In 1990, Washington became the first state to pass a modern law allowing for
involuntary commitment of “sexually violent predators.” 118 Other states quickly
followed suit, and as of mid-2007 there were nineteen states with some version of a


Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (amending 42 U.S.C. . § 14071(d) (1994).
See Davey & Goodnough, Doubts Rise, supra note ___.
Davey & Goodnough, Doubts Rise, supra note ___ at A1 (noting that, despite their popularity, “such
programs have almost never met a stated purpose of treating the worst criminals until they no longer pose a
See Eric S. Janus, Closing Pandora's Box: Sexual Predators and The Politics of Sexual Violence, 34
SETON HALL L. REV. 1233, 1237 (2004) (stating that “the promise of treatment and time-limited
confinement is belied by the almost non-existent treatment graduation rates in SVP programs across the
country”) [hereinafter Janus, Pandora’s Box]; see also WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY,
COMPARING STATE LAWS, supra note ___ at 1 (estimating cost of operating secure facilities for SVPs in the
United States to be $224 million per annum); Monica Davey & Abby Goodnough, A Record of Failure at
Center for Sex Offenders, N.Y. TIMES, Mar. 5, 2007, at A1 [hereinafter Record of Failure].
See Deborah L. Morris, Note, Constitutional Implications of the Involuntary Commitment of Sexually
Violent Predators: A Due Process Analysis, 82 CORNELL L. REV. 594, 611-15 (1997) (describing the
passage of Washington's law).



SVPA. These nineteen states now detain approximately 2,700 individuals. 119 While the
number of men currently confined under an SVPA is relatively low, that could change
with a single, highly-publicized crime by someone who could have been involuntarily
committed but was not. As one scholar noted, “[c]learly, SVPs are a growth industry.” 120
Involuntary commitment of “sexually violent predators” is an expensive proposition.
In Washington State, the cost of commitment some six years after the SVPA took effect
was more than $93,000 per person per year, at a total cost of more than $3.5 million per
year. 121 The current SVPAs are not unique, historically speaking, in singling out people
convicted of sex offenses for confinement in the mental health system. For several
decades beginning in the late 1930s, well over half of the states had some type of law
allowing for the placement of those convicted of sex offenses in psychiatric institutions
rather than in prisons. 122 These early statutes differed in at least one significant respect,
however, from the current crop of SVPAs: they substituted treatment for imprisonment,
rather than tacking on involuntary commitment after prison. 123
The United States Supreme Court upheld the constitutionality of modern SVPAs in
Kansas v. Hendricks. 124 It found that, because the Kansas SVPA required findings of
both dangerousness and mental abnormality, it was similar to non-sex offense-based civil
commitment statutes in the narrowness of its scope. 125 The law had sufficient procedural
and evidentiary safeguards to allow for what the Court recognized as “the core of the
liberty protected by the Due Process Clause,” namely, freedom from physical restraint. 126
The Court also rejected Hendricks’ arguments that the law violated both ex post facto and
double jeopardy prohibitions, finding that involuntary commitment was intended to
incapacitate and treat those who are committed, not punish them. 127 Confinement under
a properly tailored SVPA is thus a civil action, and not criminal punishment. This is
despite the fact that, as Justice Kennedy put it in his Hendricks concurrence,
“[n]otwithstanding its civil attributes, the practical effect of the Kansas law may be to
impose confinement for life.” 128


Davey & Goodnough, Doubts Rise, supra note ___ at A1.
John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4 PSYCHOL. PUB. POL’Y & L. 468, 476480 (1998) [hereinafter Cost].
Id. at 469-470.
Id. at 470-71. Compare Butler v. Burke, 360 F.2d 188, 120 (7th Cir. 1966) (describing how defendant
was committed for treatment shortly after entering a guilty plea) with Kansas v. Hendricks, 521 U.S. 346,
353-54 (1997) (describing how Hendricks was committed after serving his 10-year sentence).
521 U.S. 346, 357 (1997) (finding that it “cannot be said that the involuntary civil confinement of a
limited subclass of dangerous persons is contrary to our understanding of ordered liberty”).
Id. at 357-58.
Id at 356-57.
Id. at 360-71; see also Seling v. Young, 531 U.S. 250, 263 (2001) (holding that “respondent cannot
obtain release through an ‘as-applied’ challenge to the Washington [SVPA] on double jeopardy and ex post
facto grounds” and “agree[ing] with petitioner that an ‘as-applied’ analysis would prove unworkable”). In
2002, the Court revisited SVPAs, holding that the state must show “proof of serious difficulty in
controlling behavior” for those it seeks to civilly commit. Kansas v. Crane, 534 U.S. 407, 413 (2002)
(noting, however, that state need not show proof of absolute lack of ability to control behavior).
Hendricks, 521 U.S. at 372 (Kennedy, J., concurring).



The Kansas SVPA is typical of such statutes. 129 Under the Act, the state must make
two showings in order to commit an individual. It must show that the individual (1) has a
“mental abnormality” or suffers from a “personality disorder,” and (2) is likely to engage
in “predatory acts of sexual violence.” 130 Only those convicted of or charged with a
“sexually violent offense” qualify as sexually violent predators. 131 The list of qualifying
crimes is extensive, ranging from rape to attempted aggravated indecent liberties with a
child. There is also a category for any non-sexual offense “which either at the time of
sentencing for the offense or subsequently during involuntary commitment proceedings
pursuant to this act, has been determined beyond a reasonable doubt to have been
sexually motivated.” 132 In other words, a person can be deemed a sexually violent
predator even if the underlying charge or conviction is not a sexual offense. This is
significant, as it widens considerably the potential pool of candidates for involuntary
commitment. 133
The rate of release for those committed under an SVPA is very low. Of the 129
people committed under the Kansas SVPA between its 1994 passage and 2004, only
eighteen have been discharged or released from confinement into a less-restrictive
environment. Of these, fourteen were sent back.134 In Minnesota, which had a precursor
to its modern SVPA, not a single person convicted of a sex offense and then civilly
committed was ever released. 135 Every SVPA allows for indefinite confinement of the
individual, with periodic review. 136 In December 2004, seventeen states had SVPAs and
almost all of them had been in effect since 1999 or earlier. In these states, 3,493 people
had been held for evaluation as sexually violent predators or committed; only 427 had
ever been discharged or released for outpatient treatment. 137
While there is some recent legal scholarship on SVPAs, it focuses largely on the cost,
effectiveness and constitutionality of treating sex offenders though the mechanism of


See KAN. STAT. ANN. § 59-29a01 et seq. (1994); see also La Fond, Cost, supra note __ at n.8 (stating
that the Hendricks Court’s explanation of the Kansas SVPA “is a useful description that accurately
describes in general terms how these laws work”).
KAN. STAT. ANN. § 59-29a01 et seq. (1994).
KAN. STAT. ANN. § 59-29a02(a) (defining “sexually violent predator”).
KAN. STAT. ANN. § 59-29a02(e)(13).
See infra Part ___, discussing “Non-sexual offenses.”
Eric S. Janus, Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex
Offender Commitments, 72 IND. L.J. 157, 206 (1996).
See Wanda Kendall & Monit Cheung, Sexually Violent Predators and Involuntary Commitment Laws,
13 JOURNAL OF CHILD SEXUAL ABUSE 41, 49-52 tbl.2 (2004).
(noting that report “use[s] the term ‘held since the law went into effect,’ rather than ‘committed,’ because it
provides a more accurate reflection of the scope of the law’s application. In many states, individuals are
sent to the treatment facility for evaluation and may choose to wait for some time before proceeding with
the commitment hearing.”). The numbers reported in a 2007 New York Times investigation into SVPAs
was even more stark. See Davey & Goodnough, Doubts Rise, supra note ___ at A1 (noting how “[n]early
3,000 sex offenders have been committed since the first law passed in 1990. In 18 of the 19 states, about 50
have been released completely from commitment because clinicians or state-appointed evaluators deemed
them ready. Some 115 other people have been sent home because of legal technicalities, court rulings,
terminal illness or old age.”).



commitment. 138 The literature does not address the role of defense counsel, prosecutors
or courts involved in the criminal convictions that can lead to involuntary commitment.
A notable exception is Professor Nora Demleitner, who has recognized that confinement
of those committed under SVPAs “presents the starkest example of a collateral
sanction.” 139 Professor Demleitner has consistently argued for more transparency in the
imposition of collateral consequences, stating that the process “should be public and
should be part of the sentencing process.” 140 However, there is a general lack of
commentary on the constitutional dimensions of warnings about SVPAs during the plea
There is a significant body of literature on collateral consequences generally. The
vast majority of it considers the particular consequence of immigration, on the theory that
“exile” is the harshest consequence. 141 Yet even sex offenders who are not involuntarily
committed face their own form of “exile.” They are subject to zoning rules about where
they may or may not live, registration rules that can include Internet postings of their
photographs and addresses, and numerous bars on employment. 142

See, e.g., La Fond, Cost, supra note __; John Q. La Fond, Outpatient Commitment’s Next Frontier, 9
PSYCHOL. PUB. POL’Y & L. 159 (2003); Janus, Pandora’s Box, supra note ____; Kendall and Cheung,
supra note ___.
Demleitner, Abusing State Power, supra note ___ at 1621. Although Professor Demleitner has written
broadly about collateral consequences of all types, Abusing State Power focuses on the particular
consequence of commitment under an SVPA. In the article, Demleitner urges replacement of the current
approach to involuntary commitment in United States, through SVPAs, with an approach that more closely
approximates the German model. Id. at 1641.
Demleitner, Preventing Internal Exile, supra note ___ at 162; see also Nora V. Demleitner, Smart
Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences And Collateral Sanctions, 58
STAN. L. REV. 339, 359 (2005) (arguing, in article critiquing federal sentencing guidelines, that “[a]ll
substantial collateral sanctions should be imposed at sentencing”); Demleitner, Abusing State Power at
1654 (noting how her “proposed model relies heavily on the idea that all sanctions should be imposed at
sentencing to provide the offender and the public with a clear sense of the penalty assessed”).
See, e.g., John J. Francis, Failure to Advise Non-Citizens of Immigration Consequences of Criminal
Convictions: Should This Be Grounds to Withdraw a Guilty Plea?, 36 U. MICH. J.L. REFORM 691, 734
(2003) (stating that, “[u]nder the INA of 1996, non-citizens convicted of even minor criminal offenses can
face dire consequences, often far worse than the statutory sentence for the crime”); Bruce Robert Marley,
Exiling the New Felons: The Consequences of the Retroactive Application of Aggravated Felony
Convictions to Lawful Permanent Residents, 35 SAN DIEGO L. REV. 855 (1998). Some commentators have
focused on other types of consequences. See, e.g., Nora V. Demleitner, “Collateral Damage”: No ReEntry For Drug Offenders, 47 VILL. L. REV. 1027, 1022 (2002) (noting how, “[n]ext to sex offenders, drug
felons and drug misdemeanants have borne the brunt of civil sanctions”); Truman, supra note ___
(focusing on consequence of eviction based on drug conviction). Involuntary commitment is also
overlooked in the various court, professional and ethical rules that govern the guilty plea process. Many
ignore collateral consequences completely, see, e.g., S.D. CODIFIED LAWS § 23A-7-4 (requiring no
warnings about any collateral consequence of pleading guilty); others mandate warnings only about
immigration consequences. See, e.g,, GA. CODE ANN. § 17-7-93.
For some examples of the myriad consequences that individuals convicted of sex offenses face, see; see also Richard Gonzales, Iris Scanning
Tracks Sex Offenders, Dec. 3, 2007, available at; Richard Tewksbury, Experiences and
Attitudes of Registered Female Sex Offenders, 68-DEC FED. PROBATION 30, 32-33 (2004) (describing
research that makes it “clear that registered female sex offenders frequently experience collateral
consequences that may have serious deleterious effects on their social, economic, and physical well-being”
and specifically noting that 45% of surveyed women who had been on registry for 32 months or more
reported having lost a job due to registration); Richard Tewksbury, Collateral Consequences of Sex



Involuntary commitment is both incarceration and exile. The Supreme Court has
deemed the involuntary commitment of “sexually violent predators” to be non-punitive in
nature. 143 Still, the person who finds himself securely locked up as a civilly committed
former sex offender will experience it as quite similar to incarceration and thus
punishment. Indeed, in many of the nineteen SVPA states, commitment takes place in a
state prison or in a facility managed by the state’s department of corrections. 144

No Duty to Warn About Commitment as a “Sexually Violent Predator”

Although the number of people confined as sexually violent predators remains small,
many of them will never be released. In addition to the criminal sanctions that these
individuals served, they face potential lifetime commitment under the SVPA in their
state. This poses the central issue explored in this Article: should these individuals have
the right to be informed about the possibility of lifelong involuntary commitment during
the plea process? The answer provided by the current collateral consequences paradigm
is an unsettling “no.” This is true when courts have considered both due process and
ineffective assistance challenges.
The United States Supreme Court has never addressed the issue of whether the
Constitution requires, as a matter of either due process or the right to counsel, that a
defendant be told that his guilty plea might lead to involuntary commitment. 145
Offender Registration, 21 J. CONTEMP. CRIM. JUST. 67 (2005) (noting how “at least one-quarter of
registrants reported having received harassing/threatening mail and telephone calls, losing a job, being
denied a promotion at work, losing (or being unable to obtain) a place to live, being treated rudely in
public, being harassed/threatened in person, and losing at least one friend”); Sex Offenders Living Under
Miami Bridge, N.Y. TIMES, Apr. 8, 2007, at A22 (describing how local laws restricting where convicted
sex offenders may live have forced five men to live under a bridge); Jennifer Fusco, Stricter Rules for Sex
Offenders Approved, THE UTICA OBSERVER-DISPATCH, Oct. 10, 2007 (discussing local law which prohibits
convicted sex offenders from being within 1,500 feet of a county park, playground, school or child-care
center); Aimee Harris, Newton Considering Sex Offender Ban, N. Y. TIMES, Oct. 7, 2007 (discussing
proposal to ban "high risk" sex offenders from living anywhere within city limits).
Kansas v. Hendricks, 521 U.S. 346, 347 (1997) (finding that “[c]ommitment under the Act does not
implicate either of the two primary objectives of criminal punishment: retribution or deterrence”).

See, e.g., KAN. STAT. ANN. § 59-29a07(c) (describing how people subject to the Kansas Sexually
Violent Predators Act can be confined by the secretary of corrections so long as they are “housed and
managed separately from offenders in the custody of the secretary of corrections, and except for occasional
instances of supervised incidental contact, shall be segregated from such offenders”); Davey & Goodnough,
Doubts Rise, supra note ___ at A1 (reporting that “[m]ost of the centers tend to look and feel like prisons,
with clanking double doors, guard stations, fluorescent lighting, cinder-block walls, overcrowded
conditions and tall fences with razor wire around the perimeters. Bedroom doors are often locked at night,
and mail is searched by the staff for pornography or retail catalogs with pictures of women or children.
Most states put their centers in isolated areas.”). But see id. (“Yet soothing artwork hangs at some centers,
and cheerful fliers announce movie nights and other activities. The residents can wander the grounds and
often spend their time as they please in an effort to encourage their cooperation, including sunbathing in
courtyards and sometimes even ordering pizza for delivery. The new center in California will have a
20,000-book library, badminton courts and room for music and art therapy.”)

Steele v. Murphy, 365 F.3d 14, 16 (1st Cir. 2004) (noting how “[t]he Supreme Court has not addressed
whether a defendant has a constitutional right to be informed, before pleading guilty, of the possibility of
being deemed a sexually dangerous person”). Indeed, the Supreme Court has yet to undertake review of



However, in Kansas v. Hendricks the Supreme Court did find that commitment under an
SVPA was properly categorized as civil confinement and not criminal punishment.146
Some state courts have treated this civil-criminal distinction as analogous to the directcollateral distinction set out in the collateral consequences rule, and have thus found no
duty to warn about civil commitment. 147 If the Supreme Court ever adopted this
approach, presumably it would find that there is no duty to warn a defendant that his plea
to a qualifying sex offense could lead to lifelong involuntary commitment as a sexually
violent predator. 148
Unlike deportation, the duty to warn about involuntary commitment as a consequence
of sex offense convictions has not been extensively litigated in the lower federal
courts. 149 The dearth of federal cases examining this issue is likely due to the fact that
the vast majority of crimes are prosecuted in state courts and would be reviewed in
federal court only on writs of habeas corpus. This requires exhaustion of both the direct
appeal and the state collateral review processes and so comes years after the state court
conviction. Since SVPAs in many of the nineteen states that now have them are
relatively new, it could simply be that these cases have not yet arrived in great numbers
in the federal courts. Surely, the validity of guilty pleas without knowledge of an SVPA
will be litigated up into the federal courts, since the defendant will in many cases face
potential lifetime commitment and thus the stakes are high.150
However, a number of state courts have addressed the issue. They come to the same
conclusion as the Steele court, discussed in the Introduction: a plea is valid even though
any lower court finding that a defendant had no constitutional right to be warned of a “collateral”
consequence of his criminal conviction.
Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (stating that the Court was “unpersuaded by Hendricks'
argument that Kansas has established criminal proceedings”). The Court noted that the Kansas legislature
labeled its SVPA as civil, situating it within its civil probate code. Id. In addition, the Court found that the
Act’s purpose was neither retribution nor deterrence, and it was not punitive even though its primary
purpose may have been to incapacitate rather than treat sex offenders. Id. at 362-69.
See supra Part ___, describing how Texas’ highest court for criminal appeals required that a
consequence must be both “direct” and “punitive” in order to warrant warnings under the Due Process
This is likely, at the very least, on due process grounds. As set out in Part ___, supra, there is a
compelling argument that defense counsel should be treated differently from the trial court and thus
ineffective assistance claims should be treated differently from due process claims in the failure to warn
context. Indeed, the Supreme Court indicated as much in dicta in a 2001 decision. In Immigration &
Naturalization Serv. v. St. Cyr, 533 U.S. 289, (2001), the Court assumed that “alien defendants considering
whether to enter into a plea agreement are acutely aware of the immigration consequences of their
convictions.” Id. at 322. It noted, however, that “[e]ven if the defendant were not initially aware of [the
federal statute governing relief from deportation], competent defense counsel, following the advice of
numerous practice guides, would have advised him concerning the provision's importance.” Id. at 323
See supra note __ and accompanying text, listing decisions in the various circuits involving deportation
as a consequence of a guilty plea. But see Steele v. Murphy, 365 F.3d 14 (1st Cir. 2004).
However, defendants who challenge their convictions through writs of habeas corpus face increasingly
complex procedural hurdles. In the Antiterrorism and Effective Death Penalty Act of 1996, Congress
withdrew from federal judges the power to grant writs unless a state-court adjudication on the merits was
made, inter alia, "contrary to, or involved an unreasonable application of clearly established federal law as
determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1). The practical – indeed,
intended – effect of this law has been to reduce the likelihood that defendants who are convicted in the
state-court system will be able to have their cases heard in Article III courts.



the person pleading guilty did not know that the conviction for a sexual offense could
lead to involuntary commitment after he served his sentence. 151 These cases generally
arise when a defendant seeks to withdraw his guilty plea on the grounds that neither the
judge nor defense counsel told him about the SVPA. Almost all of the decisions deny, on
various grounds, the request to withdraw the plea. Some courts base their holdings on
due process grounds; 152 some reject claims that counsel offered ineffective assistance in
violation of the Sixth Amendment by failing to warn;153 others rely on a traditional
contract analysis in rejecting the claim that failure to inform about involuntary
commitment is a breach of the plea bargain agreement; 154 a few reason that the failure
does not meet state statutory or common law rules governing the withdrawal of guilty
pleas. 155
The case of State v. Myers illustrates the general approach to due process and
knowledge of an SVPA during the guilty plea process. 156 Robert Myers pled guilty to
sexual assault of a child. He later moved to withdraw his plea on the grounds that it was
not knowing, voluntary and intelligent because the trial court had failed to inform him
about Wisconsin’s “Sexually Violent Persons Commitment” law. 157 The court noted that
involuntary commitment would not automatically flow from the fact of Myers’
conviction. Instead, “Myers will have the full benefit of the [commitment law’s]
procedures, due process, and an independent trial.” 158 Since commitment was thus only a
potential future consequence of his plea, Myers had no due process right to know about it
prior to entering his plea.
With respect to ineffective assistance of counsel, the other major constitutional basis
for challenging failure to warn about involuntary commitment, a Kansas Court of

See, e.g., Martin v. Reinstein, 987 P.2d 779 (Ariz. Ct. App. 1999); Morales v. State, 104 S.W.3d 432,
437 (Mo. Ct. App. 2003); State v. Harris, 881 So.2d 1079, 1082-85 (Fla. 2004); Bussell v. State, 963 P.2d
1250 (Kan. Ct. App. 1998); Ames v. Johnson, No. CL04-413, 2005 WL 820305 (Va. Cir. Ct. Mar. 28,
See, e.g., Martin, 987 P.2d at 806 (noting how “one who pleads guilty should be informed of the
punishment that must be imposed so that he can make an intelligent and knowing plea. Here, confinement
for treatment under the [Sexually Violent Persons] Act is not ‘punishment,’ nor must it be imposed.
Therefore, there was no requirement that Petitioners be told of the Act's terms before they pled guilty.”)
(internal citation omitted). The best that can be said of some decisions in this area is that they “appear” to
base their decisions on due process grounds. Many courts confuse the due process and effective assistance
of counsel analyses, often making it difficult to determine which constitutional provision underlies the
decision. See infra at __ , critiquing courts’ tendency to treat defense counsel’s and judges’ obligations
with respect to plea bargaining as identical.
See, e.g., Morales, 104 S.W.3d at 437 (finding that “counsel did not render ineffective assistance of
counsel by failing to inform movant of the collateral consequence of involuntary commitment” under the
state’s SVPA).
See, e.g., Harris, 881 So.2d at 1082-85 (rejecting respondents’ breach of contract argument by
concluding that “any bargain that a defendant may strike in a plea agreement in a criminal case would have
no bearing on a subsequent involuntary commitment for control, care, and treatment” and also holding that
the doctrine of equitable estoppel does not prohibit the government from initiating involuntary commitment
proceedings even where there was no mention of this in the plea agreement).
See, e.g., Bussell, 963 P.2d at 1253 (confirming trial court’s finding that defendant did not meet state
statutory plea withdrawal standard of “manifest injustice” when both court and counsel failed to warn him
about SVPA prior to his guilty plea).
544 N.W.2d 609 (Wis. Ct. App. 1996).
Id. at 610.
Id. at 610-11.



Appeals case demonstrates the typical outcome. Richard Bussell pleaded guilty to a
sexual offense in exchange for a sentence of six to fifteen years. 159 In Bussell v. State,
the court found that Bussell was not entitled to withdraw his guilty plea despite the fact
that his attorney had failed to advise him about potential confinement under the Kansas
SVPA. 160 The court first noted the two-prong test for ineffective assistance of counsel,
which looks at both attorney competence and prejudice to the defendant. With respect to
the first prong, the court emphasized the “highly deferential” nature of judicial scrutiny of
defense counsel’s performance. 161 It went on to apply the circular reasoning that,
because defense counsel must warn only about possible criminal penalties, there was no
duty to warn about the Kansas SVPA. In addition, the court noted:
[I]t is unclear now and will remain so in the future whether the KSVPA
will ever apply to defendant because he has not yet finished his criminal
sentence. The uncertainty inherent in predicting whether the KSVPA will
ever be invoked against defendant is such that the failure of his counsel to
advise him of potential consequences cannot be said to be constitutionally
deficient. 162
The court also found that Bussell failed to show that the lack of warning about the
SVPA prejudiced him. It reasoned that Bussell did not “flatly state that his decision to
plead guilty would have changed had he known of the KSVPA” and also that the guilty
plea allowed him to avoid a substantially longer sentence. The court was thus “not
willing to assume that defendant is so lacking in judgment that he would have risked a
much longer sentence by going to trial if he had known that sometimes in the distant
future the KSVPA might have been applied to him.” 163 In other words, the court came to
the somewhat surprising conclusion that the risk of potential lifelong involuntary
commitment under the state’s SVPA would not deter Bussell from pleading guilty when
the plea saved him from a longer prison sentence.
The Myers approach utterly fails to consider the defendant’s perspective in
determining the need for knowledge before pleading guilty. The Bussell decision is naïve
at best, and perhaps disingenuous, about the importance that involuntary commitment as
a sexually violent predator plays in the plea bargain process. Both cases evidence a
formalistic approach where the line between “direct” and “collateral” is divorced from
the need for transparency in the plea bargain process.


Bussell v. State, 963 P.2d 1250, 1252 (1998). The actual sentence was two to five years on each count,
to be served consecutively on three counts and concurrently on the others. Id.
Id. at 1254. The court also denied Bussell’s claim that the trial court’s failure to warn about the SVPA
violated due process. Id. at 1252-53 (applying collateral consequences rule to Kansas’ Sexually Violent
Predators Act and noting that, because the SVPA did not flow immediately, definitely and automatically
from the guilty plea, the trial court had no duty to warn defendant about it).
Bussell, 963 P.2d at 1253-54.
Id. at 1254. Bussell is currently on parole in Linn County, Kansas. See Kansas Adult Supervised
Population Electronic Repositor, Kansas Criminal Justice Information System, (last visited Feb. 20, 2008).
Bussell, 963 P.2d at 1254.






Proposal: Rule of Reasonableness for Warnings

This section proposes a reasonableness standard in determining whether there
should be a duty to warn a defendant about a particular consequence prior to a guilty
plea. Under this standard, warnings must be given whenever a reasonable person in the
defendant’s situation would deem knowledge of the consequence a significant factor in
deciding whether or not to plead guilty.
To gauge the “significance” of a particular consequence to the plea decision-making
process, courts should consider two main factors: 1) the consequence’s severity and 2)
the likelihood that the consequence will apply. Any consequence that ranks highly on
either spectrum would qualify for a warning. If a consequence is severe, then it is
something that any reasonable defendant would use as a significant factor in deciding
whether or not to plead guilty even if it is not certain that it will apply. If a consequence
is highly likely to apply, it too should merit a warning. This would result in warnings
about even some collateral consequences that are not highly severe. However, it is not
onerous to warn about these since they will be limited in number and should, due to their
automatic nature, be quite familiar to defense counsel and the court.

Severity of Consequence

Consequences on the high end of the severity spectrum would be those that infringe
upon the defendant’s life, liberty or such fundamental rights as parenting or the ability to
travel. 164 Taking severity into account is critical, as any person facing a guilty plea
decision would treat as a significant factor any consequence that might lead, for example,
to potential lifelong civil commitment or deportation to a country where he faced likely
incarceration or even execution.
The New Jersey Supreme Court recognized that there is a duty to warn about the
state’s SVPA because it is so severe. In State v. Bellamy, the Court stated that
commitment “is theoretically without end. In that sense, it constitutes a greater liberty
deprivation than that imposed upon a criminal defendant who, in all but a handful of
cases, is given a maximum release date. A more onerous impairment of a person’s
liberty interest is difficult to imagine.” 165
The Court noted that it “continue[d] to stress the necessity of determining whether a
consequence is direct or penal when analyzing whether a defendant must be informed of
a particular consequence.” 166 However, it then made a significant departure and found
that “when the consequence of a plea may be so severe that a defendant may be confined

See Troxel v. Granville, 530 U.S. 57, 66 (2000) (recognizing “fundamental right of parents to make
decisions concerning the care, custody, and control of their children”); Saenz v. Roe, 526 U.S. 489, 502
n.14 (1999) (recognizing fundamental right of citizens to travel within the United States).
State v. Bellamy, 835 A.2d 1231, 1238 (N.J. 2003) (internal quotations omitted) (noting that, while
direct-penal distinction remains relevant, severity of consequence is central to inquiry into whether
fundamental fairness requires that trial court inform defendant of a particular consequence).
Id. at 1238.



for the remainder of his or her life, fundamental fairness demands that the trial court
inform defendant of that possible consequence.” 167
Deportation is another severe consequence, particularly when it happens to a noncitizen who has lived legally in the United States for many years and has family and other
connections here. Ivania Maria Couto entered the United States on a tourist visa from
Brazil in 1991. 168 She married an American citizen, who died, and later married another
citizen. Couto’s son was born in the United States. She applied for legal permanent
resident status around 1994. Five years later, a man claiming to be an attorney offered to
help Couto with the pending application. She eventually traveled with him and a group
of others seeking immigration assistance to Albany, New York, where they met with a
man claiming to be an immigration official. This man, and the others on the trip, all
spoke Spanish. Couto spoke Portuguese and had the ability to communicate, with
difficulty, in Spanish or English. The purported immigration official stamped Couto’s
passport and she returned home. The man, however, was actually an undercover
immigration agent posing as a corrupt immigration official and Couto was later
arrested. 169
Couto eventually pled guilty to bribery of a public official. 170 Although the court that
ultimately allowed Couto to withdraw her guilty plea did so on the grounds that her
defense lawyer misled her into believing she could avoid deportation, the decision shows
concern with the severe nature of the consequence with respect to Couto’s situation. The
court noted how “the whole scenario – a single mother of a citizen child, who had lived
for almost a decade in this county, hiring a person that she believed to be an attorney to
help normalize her immigration status – suggests that avoiding deportation was Couto’s
central goal.” 171
Despite the Bellamy Court’s protestations to the contrary, its approach evidenced a
critical move away from the formalistic distinction between “collateral” and “direct”
consequences. Most courts continue to follow the bright line, even in the context of
warning about an SVPA. The Bellamy decision is significant in its recognition that
severity of the consequence is central to any credible rationale for a knowing and
voluntary guilty plea.

Likelihood That a Consequence Will Apply

This factor should be judged along the spectrum of the chance there is that the
particular consequence would apply to the defendant should he be convicted. It considers
the process by which the consequence would apply. Likelihood is high when the fact of
conviction serves as the sole and non-discretionary predicate for imposition of the
consequence. In such cases, there is no way for the defendant to rebut the conviction; it
is there and the collateral consequence flows automatically from the fact of the
conviction. Other consequences are less likely to apply, often because they are
discretionary or require a procedure separate and apart from the criminal proceeding.

See United States. v. Couto, 311 F.3d 179, 182 (2d Cir. 2002).
Id. at 182.
Id. at 184.
Id. at 188.



Part I of this Article critiqued the most-commonly used definition of direct
consequence, namely the Fourth Circuit’s “definite, immediate and largely automatic”
test. 172 The “likelihood” factor of the reasonableness proposal has some similarities, at
least semantically, to that test. However, the key concern of the Fourth Circuit’s
approach was action, or lack thereof, by the sentencing judge. The test reflects the desire
to safeguard the values of efficiency and finality in the plea bargaining process. The key
to the likelihood of application factor, by contrast, is how the defendant experiences the
consequence, regardless of which body imposes the consequence. In addition, the Fourth
Circuit test failed to consider severity at all.
Sex offender registration acts (SORAs) illustrate a consequence that is high on the
likelihood spectrum. Under most SORAs, individuals convicted of certain sexual
offenses must register with local authorities. For example, a person convicted of
misdemeanor sexual misconduct under New York’s penal law is subject to the state’s
Sexual Offender Registration Act (SORA). 173 Neither the judge nor the Board of
Examiners of Sex Offenders may waive this requirement; the duty to register flows
automatically from the fact of conviction. As Texas’ highest court for criminal cases
noted with respect to its registration act: “the consequence, registration as a sex offender,
is definite. It is also completely automatic; if a defendant pleads to an enumerated
offense, he must register; there are no exceptions, no wiggle room, no conditions which
relieve him of that obligation.” 174 The penal sanction for the misdemeanor conviction,
which may be as minimal as the night already served in jail, is completely overshadowed
by the prospect of automatic SORA registration.
On the other end of this factor’s spectrum would be the difficulty of finding work, at
least for those jobs that do not deny a professional license or clearance based on criminal
convictions. For example, a person convicted of a drug felony might seek employment in
a non-regulated area such as general business office work or construction. Although
there is no law or regulation barring people convicted of drug felonies from working in
such jobs, the employer might ask applicants to submit to a criminal background


See supra Part ___, discussing Cuthrell test.
N.Y. CORRECT. LAW §168-a(2)(a)(i) (McKinney 2007). Another example would be deportation for a
person convicted of forcible rape, which qualifies as an “aggravated felony” under federal immigration law.
An aggravated felony conviction leads to automatic deportation; neither an immigration court nor even the
Attorney General has the discretion to waive this consequence. See 8 U.S.C.A. § 1182(h) (2006); see also
Marley, supra note ___ at 874 (noting how, under current immigration law, “a lawful permanent resident
who falls within the 1996 definition of aggravated felon . . . regardless of the pettiness of his crime,
regardless of how unfair it may be to exile him from his adopted country and his family, and regardless of
the punishment, including death, he may receive at his country of origin, . . . is no longer eligible for
discretionary relief”). Although immigration officials do not find and deport every person convicted of an
“aggravated felony,” this factor does not ask whether the consequence will actually be executed, but rather
whether it applies. The fact that someone may, by chance, escape deportation does not make this
consequence any less “likely.”
Mitschke v. State, 129 S.W.3d 130, 135 (Tx. Crim. App. 2004). The Mitschke court’s determination
that the registration act was “direct” did not, however, lead to the constitutional right to know about it prior
to pleading guilty. The court took the unusual approach of finding that while the direct-collateral divide
may be instructive, not all direct consequences merited warnings prior to a guilty plea as a matter of
constitutional due process. It held that “although the sex- offender registration requirement is a direct
consequence of appellant’s plea, it is a non-punitive measure, and failure to admonish does not necessarily
render a plea involuntary.” Id. at 136; see also supra Part ____, discussing Mitschke court’s approach.



check. 175 The best practice, particularly given the fact that such background requests are
increasingly common in both employment and housing, is to warn the defendant.
However, warnings would be not constitutionally mandated under the likelihood of
application factor.


Rule of Reasonableness Applied to SVPAs

Any reasonable defendant would place significant weight on the possibility of
lifelong civil commitment as a sexual violent predator in the decision-making process
leading up to any guilty plea. Not every defendant will ultimately decide, due to the
potential for commitment, to reject all plea offers. However, this is information that
reasonable defendants will rely upon in making knowledgeable, voluntary decisions
about whether or not to plead guilty to a qualifying offense in the nineteen states with
SVPAs. 176 Involuntary commitment is thus a clear-cut case, where due process should
require a pre-plea warning under this Article’s proposed reasonableness test.
Under the Kansas SVPA that is the model for most states’ legislation, the state may
begin the procedure that will determine whether or not that person should be
involuntarily confined when a person meets the definition of a “sexually violent
predator.” 177 The Act sets forth the procedures that the state must follow in seeking
commitment. These include: an initial probable cause determination, followed by
confinement if cause exists; 178 a trial at which the state must prove beyond a reasonable
doubt that the person is a “sexually violent predator” and at which there is a right to
counsel, to a mental health examination, to present and cross examine witnesses, to some
discovery and (if either the individual, the prosecutor or the judge demands it) a jury
trial; 179 and yearly reviews of the individual’s mental condition to determine if continued
confinement is justified or if the individual is ready to move to the next level of
treatment. 180
This process, which is completely separate from the criminal proceeding which sets
the SVPA’s wheels in motion, 181 is the reason that civil commitment ranks relatively

See generally Adam Liptak, Expunged Criminal Records Live to Tell Tales, N.Y. TIMES, Oct. 16, 2006
(discussing increased use of background checks among employers and the inaccuracy of criminal records
provided to them by for-profit database companies).
The same would hold true in states with pending civil commitment legislation. This situation, which
further complicates the constitutional equation, is beyond the scope of this Article. Suffice it to say that at
the very least, a defendant might have a colorable claim for ineffective assistance of counsel if his lawyer
failed to inform him that he was pleading guilty to a qualifying offense in a state with an SVPA under
KAN. STAT. ANN. § 59-29a04(a).
KAN. STAT. ANN. § 59-29a05.
KAN. STAT. ANN. § 59-29a06.
KAN. STAT. ANN. § 59-29a08.
Although a criminal conviction is certainly an integral part of most commitment proceedings, some
SVPAs do not require an actual conviction as a predicate for commitment. Instead, they might also define
“sexually violent predator” to include individuals who were merely charged with a qualifying crime. See,
e.g., KAN. STAT. ANN. § 59-29a02(a) (1994). The intent here appears to be inclusion of individuals who
were charged yet found not guilty by reason of insanity, who were acquitted because the defendant “offered
substantial evidence of a mental disease or defect excluding the mental state required as an element of the
offense charged,” or who were found incompetent to stand trial. Id. at § 59-29a03. However, anecdotal



low on the likelihood of application spectrum. Indeed, courts have focused on the SVPA
process to justify the labeling of it as collateral. 182 Certainly, the fact that there is a
separate process is relevant to a defendant, and it may mean that he will decide to plead
guilty and then take advantage of that process, if need be, to argue that commitment is not
Yet relying solely on this process ignores severity. Due to the extremely harsh nature
of civil commitment, any reasonable defendant would take it into account despite the fact
that it will not automatically come to pass after conviction and despite the fact that the
state may never meet its procedural burden to secure commitment.
Three situations specific to civil commitment demonstrate why lack of knowledge
about an SVPA can lead to pleas that are not knowing and voluntary, and why it is so
critical to take the defendant’s perspective into account in determining requisite
knowledge. Two involve types of pleas, namely “no contest” and Alford pleas, which
result in convictions without any admission of guilt or with a protestation of innocence,
respectively. The third situation is the fact that under some SVPAs even non-sexual
offenses can be qualifying convictions for the purpose of involuntary commitment. All
three, because they can lead a reasonable person to assume that the SVPA would not
apply to them, emphasize need for transparency in the plea bargain process.

“No Contest” and Alford Pleas

A plea of nolo contendere or “no contest” is “a plea by which a defendant does
not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the
court for purposes of the case to treat him as if he were guilty.” 183 Nolo contendere
means “I do not wish to contend,” 184 and during such pleas a defendant is agreeing to
refrain from contesting, rather than affirmatively voicing his guilt to, the charge or
A defendant enters an Alford plea when he pleads guilty despite asserting his
innocence. In North Carolina v. Alford, the trial court had heard evidence from various
prosecution witnesses before accepting Alford’s plea. 185 Alford then stated:
I pleaded guilty on second degree murder because they said there is too
much evidence, but I ain't shot no man, but I take the fault for the other

review of the cases and news articles reveals SVPA commitments only of individuals convicted of sex
offenses, and often convicted of multiple sex offenses on different occasions. See, e.g., Davey &
Goodnough, Doubts Rise, supra note ___ at A1 (describing various committed offenders); Davey &
Goodnough, Record of Failure, supra note ___ at A1 (same); Monica Davey & Abby Goodnough, For Sex
Offenders, A Dispute Over Therapy’s Benefits, N.Y. TIMES, Mar. 6, 2007, at A1 (same); Kansas v.
Hendricks, 521 U.S. 346, 350 (1997) (describing Hendricks as “an inmate who had a long history of
sexually molesting children”); Kansas v. Crane, 534 U.S. 407, 410 (2002) (describing Crane as "a
previously convicted sexual offender”). Although this research was limited to reported decisions and cases
described in the press, it seems fair to say that conviction has been a central element of most if not all
commitments under SVPAs.
See supra Part ___ , discussing how most courts find no duty to warn about an SVPA.
North Carolina v. Alford, 400 U.S. 25, 35 (1970).
BLACK’S LAW DICTIONARY 1074 (8th ed. 2004).
Alford, 400 U.S. at 28.


man. We never had an argument in our life and I just pleaded guilty
because they said if I didn't they would gas me for it, and that is all. 186

The Supreme Court found such pleas to be constitutionally permissible, so long as the
trial court determined a strong factual basis for the underlying offense. 187
The basic premise behind both “no contest” and Alford pleas is that “[a]n individual
accused of crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his participation
in the acts constituting the crime.” 188 Such pleas have the same force and effect as a
guilty plea for the purpose of giving the defendant a conviction and allowing a judge to
impose a sentence. Most state criminal procedure codes allow Alford pleas, 189 and “no
contest” pleas are permitted with the court’s (and sometimes also the prosecution’s)
consent. 190
These pleas can lead to any number of collateral consequences, including involuntary
commitment under an SVPA. For example, Florida’s SVPA specifically includes nolo
contendere pleas in its definition of “convicted of a sexually violent offense.” 191 In other
states, the SVPA might only refer to a “conviction” for a qualifying offense more
generally, which would include conviction following a “no contest” or Alford plea.
Yet the problems resulting from the current lack of a duty to warn defendants about
collateral consequences, most prominently the failure to account for the defendant’s
perspective in the guilty plea process, are exacerbated in the context of “no contest” and
Alford pleas. For example, Jimmie Dale Otto pled no contest to felony child
molestation. 192 The trial court found a factual basis for his plea in the police report
detailing the incidents, and sentenced Otto to twelve years in prison. Prior to his release
on parole, the state sought to commit Otto under California’s SVPA. Because Otto
pleaded no contest, he did not make detailed admissions to the charged conduct during
his guilty plea. Despite this, the state was able to meet its burden of proving that Otto
was a sexually violent predator as defined in the act, relying in part on the victims’
statements. 193 The California Supreme Court rejected Otto’s argument “that because he
pled no contest in 1991, he had little motivation to challenge the accuracy of the victims'
statements at the time of sentencing for the underlying crimes.” 194
In George v. Black, the defendant challenged the voluntariness of his guilty plea
on the grounds that the trial judge failed to inform him that he could be civilly committed
based on his sex offense conviction. 195 Joseph George originally pled not guilty and

Id. at 29.
Id. at 37.
See MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES 1049 (2d ed. 2003) (noting how a
“substantial majority of states follow the lead of the U.S. Supreme Court [in North Carolina v. Alford] and
allow a defendant to plead guilty, despite claims of innocence, so long as the prosecution establishes a
strong factual basis to support the conviction. Fewer than a half dozen states prevent trial judges from
accepting Alford pleas.”).
LAFAVE, supra note ___ at § 21.4(a).
See FLA. STAT. § 394.912(2).
People v. Otto, 26 P.3d 1061, 1063 (Cal. 2001).
Id. at 1063.
Id. at 1069.
732 F.2d 108, 110 (8th Cir. 1984).



went to trial on sexual assault charges. Only after an appellate court reversed his
conviction did he plead nolo contendere to lower charges. 196 Despite these facts, the
Eight Circuit found that commitment was collateral and thus no warnings were
required. 197
Both of these cases highlight the reasonable expectations of a person pleading no
contest. No contest or Alford pleas presumably arise in cases where the prosecution or
court has tried, and has been unsuccessful, at securing a guilty plea with an admission.
The result is a compromise, one that allows a defendant to avoid a detailed admission of
guilt to the underlying facts of the crime charged. When a defendant enters such a plea,
he is likely to assume that collateral consequences would not flow from the conviction,
since the court (and perhaps also the prosecution) have agreed that he does not have to
say that he committed the crime but instead only state that he is pleading guilty. This
same analysis holds true – and is perhaps even more apt – when a defendant enters an
Alford plea.
In these cases, knowledge of a certain or severe collateral consequence may well
have caused the scale to tip away from a defendant’s willingness or desire to accept a
conviction. In other words, a reasonable defendant in such a situation is even more likely
than a reasonable defendant entering a standard guilty plea to make the collateral
consequence a significant factor in the plea decision-making process. The result is that
no contest and Alford pleas are even less likely to be knowing, voluntary and intelligent
waivers of the relevant constitutional rights. These examples underscore the need to
impose a duty to inform a defendant if an applicable consequence is severe, or is highly
likely to apply.

Non-Sexual Offenses

Six of the nineteen SVPA states either include non-sexual offenses in their list of
qualifying convictions or have definitions of “sexually violent predator” broad enough to
include non-sexual offenses. 198 For example, under the Kansas SVPA the prosecutor is
required to file a “special allegation of sexual motivation” in “every criminal case other
than sexual offenses” where there is evidence to justify a finding of sexual motivation.
The court with jurisdiction over the criminal case must then make a finding of whether or
not sexual motivation was present or, if there is a jury trial, the jury must make that
determination through a special verdict on the issue. 199 Such provisions cast a very broad
net, and could include such situations as a person pleading guilty to burglarizing an exgirlfriend’s apartment.

Id. at 109.
Id. at 111. A number of courts have held that an Alford plea is valid despite failure to warn about an
SVPA. See, e.g., In the Matter of the Care and Treatment of Ronald Gibson, 168 S.W.3d 72, 73-75 (Mo.
Ct. App. 2004) (holding that sexually violent predator proceedings following defendant’s Alford plea did
not violate agreement which allowed plea yet did not mention predator proceedings); Ames v. Johnson, No.
CL04-413, 2005 WL 820305 (Va. Cir. Ct. Mar. 28, 2005) (rejecting Ames’s attempt to withdraw his plea
of nolo contendere on the grounds that his lawyer was ineffective for failing to warn him about Virginia’s
See KAN. STAT. ANN. § 59-29a14(a); N.J. STAT. ANN. § 30:4-27.26; IOWA CODE ANN. § 229A.2(10)(g);
FL. STAT. ANN. § 394.912 (h); MINN. STAT. ANN. § 253B.02.7a(b); S.C. CODE ANN. § 44-48-30(2)(o).
KAN. STAT. ANN. § 59-29a14(a).



To any reasonable defendant considering a guilty plea to a non-sexual offense,
potential lifelong involuntary commitment as a sexual predator would be a significant
factor in deciding whether to proceed with the plea. In this respect, the duty to warn
becomes critical to protecting the central norms of due process in the guilty plea context.
In addition, due to “special allegation”-type requirements during the criminal
case, the trial judge, prosecutor and defense counsel are integral to the SVPA process for
non-sexual offenses. Because of their roles and consequent full awareness of the
possibility that the consequence may apply, it is difficult to excuse a duty to warn on the
grounds that it would slow down the process or somehow overwhelm overburdened
actors in the criminal justice system.


Collateral Consequences Rule Emphasizes Institutional Values Over
Individual Defendant’s Right to Information

The collateral consequences rule, which allows and sanctions defendant
ignorance, is singularly concerned with the effect of a right to knowledge of collateral
consequences on the system, and not concerned with its effect on the defendant. It is
protective only of such systemic values as finality and efficiency in the administration of
criminal justice. This ignores the constitutional protections surrounding guilty pleas,
with their underlying purpose of ensuring that defendants know what they are getting
themselves into when they plead guilty. A reasonableness standard reflects those
1. Overemphasis on Institutional Values of Finality and Efficiency
The collateral consequences rule focuses only on the trial court’s role in accepting
guilty pleas, and more broadly on what the Supreme Court has described as “the
fundamental interest in the finality of guilty pleas.” 200 The rule strictly limits the
quantum of information that must flow to a defendant prior to any guilty plea in order to
avoid what courts perceive as a strong, multi-faceted threat to the criminal justice system:
Every inroad on the concept of finality undermines confidence in the
integrity of our procedures; and, by increasing the volume of judicial
work, inevitably delays and impairs the orderly administration of justice.
The impact is greatest when new grounds for setting aside guilty pleas are
approved because the vast majority of criminal convictions result from
such pleas. 201


Hill v. Lockhart, 474 U.S. 52, 58 (1985); see also United States v. Hyde, 520 U.S. 670, 670 (1997)
(noting how a permissive plea withdrawal interpretation would “debase the judicial proceeding at which a
defendant pleads and the court accepts his plea by allowing him to withdraw his plea simply on a lark”).
United States v. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521,
528-29 (Stevens, J., dissenting) (7th Cir. 1971)); see also Michel v. United States, 507 F.2d 461, 466 (2d
Cir.1974) (stating that judges cannot be expected to “anticipate the multifarious peripheral contingencies
which may affect the defendant's civil liabilities”).



Finality may be a legitimate policy concern, but it is not as fragile a concept as is
so often put forth. As Professor Gabriel Chin and Richard Holmes noted, in arguing that
requiring lawyers to warn clients about certain collateral consequences would not open
the floodgates to post-conviction challenges, it would be “an unusual case that would
satisfy the[] stringent requirements” for proving ineffective assistance. 202 This is
because a defendant would have to show that a consequence is well-established, so that
the failure to warn would be incompetent lawyering. In addition, in order to establish
prejudice, a defendant would have to show that the collateral consequence was serious as
compared to the direct consequence, so that “knowledge of the collateral consequences
might have made a difference. 203
This observation applies equally in the due process context. In the first
instance, a more rigorous rule of reasonableness would hopefully ensure front-end
warnings, leading to knowing pleas and thus avoiding post-conviction attacks on
those pleas. Even if a court permitted withdrawal of a guilty plea, that would not
mean the case was dismissed, but instead would result in reinstatement of the
original charges. Because of this, defendants who pleaded guilty based on a
determination that the plea was the preferable option would only seek to withdraw
the plea if the fact of the collateral consequence tipped the scale away from that
earlier decision. The scale would tip only if the collateral consequence really
mattered, which is exactly the type of consequence that a defendant should know
about before pleading guilty.
In short, the practical effect of a rule requiring reasonable warnings would
hardly cause the entire plea bargaining system to crumble under post-conviction
attacks on the underlying validity of pleas taken in absence of required warnings.
Rather, it would be the relatively rare case where a defendant seeks, after the fact,
to undo the plea bargain he accepted – with its penal benefits – based on lack of
knowledge about a collateral consequence.

Under Emphasis of a Defendant’s Right to Information

The Due Process Clause and the right to effective assistance of counsel are
intended to protect individual defendants, not the smooth operation of the system that
accepts so many guilty pleas. Even if finality and efficiency are legitimate concerns in the
criminal justice system, they are not of constitutional dimension. These values cannot
trump the protections for guilty pleas, which speak to individual rights.
As one commentator noted, the guilty plea process is “inequitable but
efficient.” 204 A reasonableness standard is a more principled approach to the duty to
warn about collateral consequences. It takes the defendant’s perspective into account by
looking at the facts and circumstances of the particular case, meaning both the underlying
criminal charges and the potential collateral consequences.


Chin & Holmes, supra note __ at 739.
Id. at 739-40.
Julian A. Cook, III, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal
Defendants, 75 U. COLO. L. REV. 863, 868 (2004).



In numerous areas of constitutional criminal procedure, courts analyze issues
from the perspective of the defendant. 205 Often, this manifests itself as a “totality of the
circumstances” test that views matters as a reasonable defendant (or even as the particular
defendant) would view them. For example, an analysis of the voluntariness of a
defendant’s confession considers the surrounding facts and circumstances, including the
length and location of the interrogation and the defendant’s access to friends and
family. 206 The particular defendant’s situation is also relevant, and courts have factored
things such as physical injury and mental illness into the voluntariness calculus. 207 Both
confessions and guilty pleas involve the waiver of the right against self-incrimination,
and both should be analyzed similarly, on the basis of surrounding circumstances.
Other areas also look at the facts and circumstances rather than adhering to a
bright-line rule. In 2007, the Supreme Court announced a “reasonable passenger”
standard in holding that someone in a car that the police have stopped is “seized” for
Fourth Amendment purposes and thus entitled to challenge the constitutionality of the car
stop. 208 In Brendlin v. California the Court “ask[ed] whether a reasonable person in [the
defendant’s] position when the car stopped would have believed himself free to
‘terminate the encounter’ between the police and himself.” 209 While this is an objective
test in that it considers the beliefs of a reasonable defendant rather than the particular
defendant, it takes the objective facts and circumstances of the particular defendant’s
situation into account. 210 This avoids the difficulties of administering a subjective
standard yet retains a fact-sensitive (rather than a bright-line) inquiry. Indeed, in
rejecting the state’s argument that the police officers did not intend to seize the
passenger, the Brendlin Court noted that “[t]he intent that counts under the Fourth
Amendment is the intent that has been conveyed to the person confronted, and the
criterion of willful restriction on freedom of movement is no invitation to look to
subjective intent when determining who is seized.” 211
Even Miranda, with its bright-line, prophylactic rule requiring a specific set of
warnings prior to any custodial interrogation, uses a fact-specific inquiry. 212 And it does
so, at least for part of the test, from a defendant’s perspective. Thus, the custody

Professor Kit Kinports, examining search and seizures as well as confession cases, notes how the
Court’s “criminal procedure jurisprudence . . . tends to shift opportunistically from case to case between
subjective and objective standards, and between whose point of view – the police officer’s or the
defendant’s – it considers controlling.” Kit Kinports, Criminal Procedure in Perspective, J. OF CRIM. L. &
CRIMINOLOGY (forthcoming), available at at
See Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Dickerson v. United States, 530 U.S. 428 (2000).
LAFAVE, supra note ___, at 321. But see Colorado v. Connelly, 479 U.S. 157, 165 (1986) (stating that,
“while mental condition is surely relevant to an individual’s susceptibility to police coercion, mere
examination of the confessant’s state of mind can never conclude the due process inquiry”).
Brendlin v. California, 127 S. Ct. 2400, 2402 (2007).
Id. at 2406 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)).
Id. at 2407 n.4 (stating that “the test is not what Brendlin felt but what a reasonable passenger would
have understood”); see also id. at 2408 (critiquing the California Supreme Court’s “view of the facts [as]
ignor[ing] the objective Mendenhall test of what a reasonable passenger would understand”). However, it
is difficult to apply a purely objective standard, as subjective elements often creep into this analysis. See
generally Kinports, supra note ___ (offering various instances where the Supreme Court used “subjective”
elements in purportedly “objective” analysis).
Brendlin, 127 S. Ct. at 2409 (internal quotations omitted).
Miranda v. Arizona, 384 U.S. 436, 478-79 (1996).



prerequisite to Miranda warnings is satisfied if a reasonable person in the defendant’s
position would not feel free to leave. 213 While not subjective, the inquiry considers the
particular (external) facts and circumstances of the defendant’s situation, including the
place and length of detention, any physical restraints on the defendant’s person, and the
number of police officers present. 214 In theory, these warnings are designed so that a
person in custody knows that he can refuse to speak with the authorities, or can request a
lawyer before doing so. In the same way, an appropriate rule governing warnings about
consequences would allow defendants to plead guilty or not, based on full information
about the true meaning of the resulting conviction.
The constitutional doctrine surrounding guilty pleas already takes the defendant’s
perspective, as well as the circumstances surrounding the plea, into account. In Brady v.
United States, the Supreme Court noted how guilty pleas are a “grave and solemn act to
be accepted only with care and discernment.” 215 In recognizing the need for special
scrutiny of guilty pleas taken when a defendant is unrepresented by counsel, Brady
recognized that “an intelligent assessment of the relative advantages of pleading guilty is
frequently impossible without the assistance of an attorney.” 216 This acknowledges that a
defendant’s understanding of the pros and cons of any guilty plea is a value deserving of
constitutional protection. The Court later stated that “[t]he voluntariness of Brady’s plea
can be determined only by considering all of the relevant circumstances surrounding
it.” 217 This explicitly relies on a fact-sensitive analysis, and should extend to the duty to
Yet contrary to all of these analogous areas, the constitutional law of warnings
about collateral consequences considers only whether a particular consequence flows
“directly and automatically” from the conviction, is penal in nature, or is under the
“control and responsibility” of the trial court.218 It is difficult to envision how this
advances the value of ensuring that defendants have knowledge of the relative advantages
and disadvantages of pleading guilty. Instead, it is a rule separated from its underlying
purpose, and works only to place strict limits on the constitutionally-mandated amount of
information that must go to a defendant who pleads guilty, in a focused yet misguided
attempt to protect the finality and efficiency of guilty pleas.
Professor Kit Kinports, in a thorough exploration of the different perspectives
from which the United States Supreme Court views constitutional rules of criminal
procedure, argues that “the Court should adopt a principled, consistent approach to the
question of perspective, based on the interests a particular constitutional protection is
designed to further.” 219 If the central purpose of a particular constitutional rule “is to


Id. at 444.
See, e.g., Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (finding that burglarly suspect was not “in
custody” after considering place and length of detention, as well as fact that police informed suspect that he
was not under arrest); Berkermer v. McCarty, 468 U.S. 420, 441-42 (1984) (rejecting categorical rule for
car stops in favor of rule considering particular circumstances to determine if person stopped is “in
Brady v. United States, 397 U.S. 742, 748 (1970).
Id. (emphasis added).
Id. at 749.
See supra Part ___, discussing various definitions of “direct” consequence.
Kinports, supra note ___ at 5.



preserve a criminal defendant’s right to make a free and unconstrained choice, Kinports
would apply what she terms a “consent model.” Under this model,
the Court should focus on the defendant’s perspective, applying a
subjective standard and examining the decision made by the particular
defendant to ensure that it was truly voluntary. The Court may prefer an
objective ‘reasonable defendant’ standard in some cases, in the interest of
ensuring that the reach of constitutional rights ‘does not vary with the state
of mind of the particular individual,’ but the emphasis should remain on
the defendant’s point of view. 220
Following this framework, a consent model would apply to the duty to warn about
collateral consequences. A core purpose of the due process clause is to ensure that the
defendant knows what he is doing when he enters a guilty plea. The core purpose of the
right to counsel is to ensure that each person charged with a crime and facing potential
jail time has a skilled advocate to guide him through the complex criminal justice system.
Looking at these two interrelated purposes from the perspective of the defendant (who is,
after all, the intended beneficiary of these two constitutional rights), and in the context of
today’s harsh world of collateral consequences, it is difficult to justify the collateral
consequences rule.

The current collateral consequences rule rests on doctrinally-flawed ground, is
outdated and is simply bad theory and policy. The fact that a defendant can plead guilty
to a sexual (or even, in some states, a non-sexual) offense without knowing that the
resulting conviction is a critical step toward involuntary commitment under an SVPA
starkly illustrates the problems with the current rule.
In an era where many non-penal consequences are anything but “collateral” to a
defendant, and where they may in fact dwarf the criminal sanction, it is time to debunk
the myth of the direct-collateral divide and revisit a defendant’s right to information in
the guilty plea process. A rule of reasonableness for pre-plea warnings offers this, and
brings the defendant’s missing perspective back into the guilty plea process. While there
are a number of issues that such a reasonableness standard raises, this Article does not
address all of the details of application of the rule. Instead, it is intended to begin a move
towards more transparency and rationality in the guilty plea process.


Id. at 6-7 (quoting Michigan v. Chesternut, 486 U.S. 567, 574 (1988)).