TWO WRONGS MAKE A WRONG: A CHALLENGE TO PLEA BARGAINING AND COLLATERAL CONSEQUENCE STATUTES THROUGH THEIR INTEGRATION

In the modern criminal justice system, adherence to expedience and pragmatism have contributed to the prevalence of two practices that have questionable constititional bases: plea bargains and postconviction civil penalties. Each practice has been challenged in the courts individually and has survived judicial scrutiny. And as these two practices have become more commonplace, their continued intersection and interaction has become increasingly inevitable; however, even a superficial analysis of this combination of plea bargaining and postconviction civil penalties demonstrates that the constitutionality of the two practices can no longer be justified by an uneasy compromise with practicality. This Comment is intended to illustrate the nature and the extent of the intersecting practices of plea bargaining and postconviction civil penalties. Furthermore, by embracing the contract-based approach to the theoretical justification of plea bargaining, this Comment argues that retroactive postconviction civil penalty statutes—in particular the most recently enacted federal sexual offender registration and notification law—should not survive a due process challenge and accordingly should not apply to plea-convicted defendants. At the very least, this Comment hopes to demonstrate that the individually debatable practices of plea bargaining and postconviction civil penalties have grown and interwoven to such an extent that, in light of the basic dictates of fairness and due process, the state has finally gone too far.