INTRODUCTION
It has long been established that legislatures can pass laws that limit a person's rights based on past criminal convictions. (1) In Hawker v. People of New York, (2) the United States Supreme Court held that there was no ex post facto problem when a state statute prohibited the practice of medicine by a person with a past conviction, even though this consequence was not contemplated at the time of the conviction. In subsequent cases, the Court has made clear that other after-the-fact consequences, including mandatory deportation, present no ex post facto problem. (3) Although there are arguments that due process might nonetheless curb extreme uses of this legislative power, the constitutional landscape for litigation is constrained. (4)
At the same time, statutory arguments against retroactive application of new consequences of criminal convictions have become more robust. Despite the fact that immigration consequences are widely treated as "collateral" to a conviction, (5) the Supreme Court's 2001 decision in I.N.S. v. St. Cyr (6) recognized that changes in the immigration consequences of a conviction can constitute a "new legal consequence" that cannot be imposed retroactively without clear congressional intent. (7) St. Cyr represents a major potential tool in protecting the rights of persons convicted of crimes from onerous new civil consequences.
St. Cyr leaves open many issues that will determine how powerful the decision will actually prove to be in practice. One of those issues is the core question of the date against which new legal consequences are measured. (8) Although it is well established in criminal law that retroactive effect is measured from the date of criminal conduct, (9) many courts have drawn a very different lesson from the Supreme Court's decision in St. Cyr. These courts have concluded that, for a new law to have a retroactive effect on those with past convictions, the conviction must arise from a plea, and the plea agreement must have predated the change in the laws. (10) This rule has led to many anomalous results, such as permitting new civil consequences based on past convictions for those who took their cases to trial years before a change in the law. (11)
This Article traces the roots of the current emphasis on plea Agreements (12) to confusion about indicia of retroactivity in cases involving quasi-economic transactions (13) and those involving laws that are targeted at wrongful conduct. (14) Although economic transactions are properly evaluated in terms of standards such as reliance, reliance has no proper application with respect to laws that govern wrongful conduct. Instead, when wrongful conduct is at issue, the proper question is whether the person had fair notice of the degree of consequences.
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THE ROOTS OF A PLEA-BASED STANDARD OF RETROACTIVITY
At the heart of retroactivity case law is the question whether a law has a retroactive effect. (15) Without a retroactive effect, the law does not trigger any special form of scrutiny under either statutory or constitutional principles. (16) If there is a retroactive effect, however, the law will not be read as applying in a retroactive manner absent a clear expression of legislative intent to apply the law in that manner. (17) In addition, only a retroactive effect will trigger per se bar imposed by the Ex Post Facto Clause or require seperate justification under the Due Process Clause. (18)
Recent case law developments exploring the retroactive effect of changes in the immigration consequences of convictions began by asking the question whether a "collateral" consequence, such as being excluded from relief from deportation, could also be considered a new legal consequence of any past criminal act. (19) In a series of cases decided after the 1990 revisions to the immigration laws, many courts concluded that there was no retroactive effect from new laws that eliminated the right to a discretionary relief hearing prior to deportation. (20) These courts found that people who were deportable suffered no new legal consequence by the change in the law. (21) They had been and remained deportable. The practical fact that they were denied any chance to remain through a showing of specific equities was treated as irrelevant. (22)
After Congress imposed more sweeping mandatory deportation laws in 1996, (23) courts faced a second wave of litigation. This time, retroactivity arguments received a more welcome reception in the courts. Ultimately, this litigation led to the Supreme Court's ruling in I.N.S. v. St. Cyr, where the Court concluded that a law has a retroactive effect if a past plea agreement mandates the deportation of a lawful permanent resident who previously was eligible for relief from deportation. (24)
The facts of St. Cyr, like the facts of most of the cases litigated in the aftermath of the 1996 laws, presented the Court with a person who had pled guilty to a crime at a time when the immigration consequences did not include mandatory deportation. (25) Thus, his case did not require the Court to take a position on what date constituted a proper date for finding a retroactive effect. (26) Indeed, St. Cyr's lawyers side-stepped this issue in their briefs, and instead suggested that under a variety of dates, including the date of the criminal conduct, the date of the plea or the date of the conviction, St. Cyr would have faced a retroactive change in consequences. (27) They noted that it was not unprecedented for the Court to rule on an issue of retroactivity without choosing a specific date; (28) indeed, the Court had done so just four years earlier in another retroactivity case. (29)
Because the St. Cyr litigation proceeded without a specific theory of the proper date for judging retroactive effect, St. Cyr was able to draw on retroactivity jurisprudence from a variety of contexts to support the claim that he had been subjected to retroactive consequences. (30) Similarly, the Court's opinion drew from a variety of strands of retroactivity jurisprudence to support its decision. (31) What remains unclear is whether all of these strands must coalesce in a single case in order to find a retroactive effect.
Parts of the St. Cyr decision draw directly on the specific transaction that constitutes the plea agreement. (32) The Court noted that plea agreements constitute a "quid pro quo" between the criminal defendant and the government. (33) The Court further found that it was reasonable to believe that immigrants consciously relied on the expectation of eligibility when they made decisions to plead guilty. (34) Throughout the opinion, the Court repeatedly uses the term "reliance" to underscore the degree to which a specific transaction--namely the plea--was premised on expectations about whether that plea would lead to automatic deportation. (35)
Other parts of the St. Cyr decision look to a more expansive concept of retroactivity. (36) The Court discusses several concepts other than reasonable reliance as standards for evaluating retroactivity. It specifically speaks of the need for "fair notice" and a respect for "settled expectations." (37) In addition, it underscores that there is no single formula for evaluating retroactive effect. (38) The Court proceeds to draw directly from cases that determined retroactive effect in the criminal context--a context where reasonable reliance has never been a key test. (39) Ultimately, the Court issued a decision where the holding was limited to persons who had entered plea agreements. (40) In contrast to the opinion of the Second Circuit, which it was reviewing, (41) the Supreme Court did not explicitly address the issue whether this was the only set of persons who would suffer an improper retroactive effect as a result of application of the new mandatory deportation rules. (42)
In the wake of St. Cyr, courts have faced the question whether the retroactive effect of the 1996 laws extends to those who did not enter a plea prior to the change in the law. (43) In general, courts have largely restricted the application of St. Cyr to those who entered pleas under the prior legal regime. (44) Despite a few thoughtful dissenting voices, the trend has been to limit St. Cyr to its facts. (45)
Behind judicial skepticism about retroactivity claims by those without plea agreements is a narrative presented in one of the early cases on the 1996 laws. In LaGuerre v. Reno, the Seventh Circuit considered the case of a person, like St. Cyr, whose conduct, plea, and conviction pre-dated the changes in the law. (46) Writing for the panel, Judge Posner said:
It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation. (47) Several years later, another panel backed off of the first part of this quote and concluded that the petitioner in that case had, in fact, relied on the state of immigration law at the time of his plea. (48) But the second part of the quote stuck. By the end of 2002, seventeen courts had quoted Judge Posner, either directly or indirectly, for the proposition that a criminal defendant relied on the state of the law when committing a crime and that, therefore, no retroactive effect could be applied. (49)
Of course, embedded in the LaGuerre quote, and generally unacknowledged, was the assumption that a retroactive effect would only exist if the criminal defendant had relied on immigration consequences when committing a crime. In narrative terms, the LaGuerre court presented the retroactive effect issue as placing the court at the scene of the crime and placing the spotlight on the criminal defendant as she revealed the thinking behind the criminal scheme. (50) Once posed in this manner, the answer appeared to...
