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

71 Pages Posted: 9 Mar 2008 Last revised: 26 Jan 2009

See all articles by Jenny Roberts

Jenny Roberts

American University - Washington College of Law

Date Written: 2008


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.

Keywords: Criminal Procedure, Guilty Pleas, Sexual Offenses, Civil Commitment

Suggested Citation

Roberts, Jenny, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators" (2008). Minnesota Law Review, Vol. 93, p. 670, 2008, Available at SSRN:

Jenny Roberts (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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