On December 20, 2012, Pennsylvania will begin enforcing its new changes to Megan's Law. By now, many people have realized that they or their friends will be negatively impacted by these laws. For most, it's probably hard to grasp how such laws could be legal. Undoubtedly, many appeals will be filed to challenge these laws. In some states such as Ohio, many of the retroactive provisions have been found to be unconstitutional upon being appealed, and have been reversed. In other states, the high courts have upheld the new laws. The purpose of this article is to educate you all about why these new laws may or may not ultimately be determined to be illegal.
The United States Constitution, as well as the Pennsylvania Constitution, contain clauses that prevent legal consequences from being changed retroactively. Section 17 of the Pennsylvania Constitution reads:
"No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed."
For example, one cannot be arrested today based upon a new law if the actions of that individual were legal during the time the actions were taken. Additionally, if an individual were sentenced to the maximum term of 10 years of imprisonment for a crime in 1999, and in 2002 the maximum sentence for that crime changed to 20 years, the sentence of that individual cannot be changed retroactively to conform to the new law.
However, in order for a retroactive law to violate the ex post facto clause, the legal consequence that is changed retroactively must be "punitive" (i.e., considered to be punishment), as opposed to civil, remedial, or a collateral consequence. Some examples of collateral consequences include loss of the right to vote, enlist in the armed services, or own a firearm. Although it may be hard to imagine, some high courts have ruled that sex offender registration requirements are not punitive, but are instead collateral consequences.
However, in State v. Williams,129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme Court concluded that the requirements of Ohio's new sex offender laws based upon the Adam Walsh Act had transformed the law from remedial to punitive. Their decision was not based upon a single requirement, but instead was based upon the totality of the requirements. The Court cited the various new requirements, and also stated two other factors that influenced their decision: 1) the procedures for registration and classification of sex offenders were placed within Ohio's criminal code, and 2) failure to comply with certain registration requirements subjected an offender to criminal prosecution.
Some notable comments in this analysis include:
"The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender's actions.’
"When we consider all the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws."
A video of the oral argument that was administered prior to the decision is below.
In a recent Pennsylvania Supreme Court case (Commonwealth v. Abraham 2012), the court analyzed whether the appellant's losing his pension unknowingly as a result of a plea bargain was a collateral consequence. Although this case is not directly related to the issue at hand, the court discussed an analysis to determine whether a provision is punitive, or civil.
- The first inquiry is whether the legislature's intent in enacting the provision at issue was punitive. If the intent is found to be non-punitive and therefore civil,
- the second inquiry is whether, despite this intent, “the statute is ‘so punitive either in purpose or effect as to negate [the] intention to deem it civil.
"In applying the second prong, courts “ordinarily defer to the legislature's stated intent,” and “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty."
Ultimately the court ruled that the appellant's loss of pension was a collateral consequence. Based upon the rationale used by this court, if the PA's new sex offender laws are going to be challenged, the appellant should have "the clearest of proof" that he or she has been subject to punitive consequences as a result of the new laws.
Some of the consequences are listed below, but the Court should also realize that if it deems these new laws constitutional, additional consequences / conditions are sure to follow. The court should also consider, as did the Ohio Supreme Court, that it perhaps did not fully envision the negative effects of Megan's Law during the passage of the original law. In essence, the conditions imposed by Megan's Laws are tantamount to sentences of supervision that have historically been considered to be punishment.
There are basically two "Tiers" of offenders: 1) those that were already required to register, but whose conditions will be changed, and 2) those that were not required to register, and now must.
Please share your stories of how you have been affected by Megan's Law, or how you envision the new laws will negatively affect you.
- Required to register under Megan's Law even though one's plea agreement precluded such a condition
- Reclassification into higher tiers without causal reason (offense-based, not risk-based)
- Reclassification into higher tiers due to convictions for multiple lower-tiered "sexually violent offenses" that resulted from the same act
- Extensions of registration periods
- Increased reporting frequencies
- More-detailed personal information requirements on the website
- Prison sentences if in violation
- Inclusion of juvenile offenders on Megan's Law website
- Loss of employment, or prevention of employment
- Loss of ability to live with your children
- Residency restrictions
- Forced to move
- GPS monitoring
- Travel restrictions
- Loss of the right to use the internet and/or social media
- Banned from parks
- Ostracism by communities and friends
- Depression, loss of will, and suicide
- Harassment of offenders, and/or harassment of offenders' children
Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by these new laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws) to join the fight, and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. Additionally, the Law Offices of David S. Shrager in Pittsburgh, PA have been successful in precluding Megan's Law registration in some cases.
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