There a couple interesting new sex-crime related articles up on SSRN. First, there is an article by Jenny Roberts at Syracuse titled The Myth of Collateral Consequences of Criminal Convictions: Involuntary Commitment of Sexually Violent Predators. The article is forthcoming in the Minnesota Law Review. Here is the abstract:
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. Perhaps 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 examines 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.
Also up is an article forthcoming in the Boston University Law Review by Jennifer Collins, Ethan Leib, and Dan Markel titled Punishing Family Status. Here is the abstract:
This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.
Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as burdens. By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design - particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.
While this last article addresses a lot of issues tangential to this blog, it proposes changes in incest, adultery, and bigamy law. You might remember Markel had some unusual ideas about a sex licensing scheme recently. I haven't had a chance to read the whole article yet, but I'm definitely interested because it addresses an area of sex crime law that is rarely theorized these days.
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