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Ohio State Journal of Criminal Law






It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, the four-Justice plurality undertook a somewhat tortured statutory analysis to find that Congress provided the Attorney General with appropriate guidance to exercise his discretion and thus did not violate the nondelegation doctrine. However, a full Court may soon return to nondelegation, given Justice Alito’s open invitation to do so in his reluctant Gundy concurrence and a widely-predicted fifth vote from Justice Kavanaugh to reconsider the current approach. A subsequent case might lead the Court to address long-standing and challenging issues about the line between civil and criminal sanctions, something Justice Gorsuch touched on when he suggested—shortly before joining the Supreme Court—that courts might use a particularly demanding nondelegation test “when the criminal law is involved.”

This Term Paper picks up on that suggestion and considers how the Court might distinguish civil (nonpunitive) from criminal (punitive) statutes or regulations. Although the Court has developed a conceptually muddled doctrine to make that distinction in varying contexts, changing realities might lead it to approach things differently (more coherently?) in the future. After laying out the relevant doctrinal background, this paper discusses three significant changed realities. First, there is recent empirical evidence that some consequences—such as some occupational barriers based on criminal convictions—undercut rather than advance the purportedly nonpunitive public safety rationales upon which they rest. Second, technological advances in access to criminal records render an individual’s experience of the “collateral” consequences of criminal convictions much harsher than in previous eras. This changes the substantive experience of, and public involvement in, punishment. Third, the integration of collateral consequences into the plea bargaining and sentencing phases of the criminal process has led some lower courts to find a Sixth Amendment duty for defense counsel to adhere to these new norms.



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