Case to Follow: Can a New Law Affect an Old Plea Agreement?

Michael Stephan

The Ninth Circuit certified an interesting question to the California Supreme Court on Monday: Are parties to a plea agreement bound by the law in effect at the time of the agreement, or can the terms of the plea agreement be affected by subsequent changes in the law?  In other words, can a new law change the terms of an old plea agreement?  The answer, in California at least, is unclear.

This question arose in Doe v. Harris, a case involving a man who in 1991 pleaded guilty to one count of committing a lewd and lascivious act upon a child.  In exchange for Doe’s guilty plea, the State dropped five additional counts of the same offense, which allowed Doe to avoid serving jail time.  Doe was sentenced to probation and, inter alia, required to register as a sex offender under the existing state registration law.

The state’s 1991 sex offender registration law provided that a registrant’s status as a sex offender would be kept confidential and would not be publicly available information.  Per the 1991 law, the sex offender registry would be available only to law enforcement officers.  But like many other states, California has since passed a “Megan’s Law,” which allows the general public to access the state’s sex offender registry.  California’s Megan’s Law applies retroactively to sex offenders, like Doe, who committed their crimes before the law was passed.

This puts Doe in a difficult situation.  He bargained for a plea agreement that, at the time, included his confidential registration as a sex offender.  A subsequent change in the law, however, eliminates the confidential nature of the state’s sex offender registry.  Thus, the big question is whether “the terms of a plea agreement may be affected by changes in law.”

Doe sought an injunction to prevent his inclusion in the public sex offender registry.  The district court held for Doe, noting that “the confidentiality of registration was a material part of the deal as far as Doe was concerned.”  It also felt that the parties could not reasonably interpret Doe’s plea agreement to require compliance with a registration law that didn’t exist yet.

The Ninth Circuit has asked the California Supreme Court for guidance on state plea-agreement law, which is currently unclear.  The state’s highest court has held that subsequent changes in the law do not affect commercial contracts, but it has not expressly applied that rule in the plea-agreement context.

It’s my sense that the district court got it right.  The Due Process Clause ensures criminal defendants the right to enforce the terms of their plea bargains, and it seems unlikely that those terms include the requirements of non-existent, future laws.  It also seems unlikely that plea bargains are distinguishable from commercial contracts in such a way as to receive different treatment when subsequent laws are made.  At any rate, this will be an interesting case to watch in the coming weeks as the California Supreme Court decides whether (and how) it will answer the Ninth Circuit’s question.

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