****UPDATE – Petition for Writ of Certiorari Denied – U.S. Supreme Court Appeal – January 22, 2018 – This means that the below ruling was not disturbed****
Since Pennsylvania’s implementation of SORNA on December 20, 2012, numerous legal challenges regarding its seemingly unconstitutional application have found dead ends. That is until today, July 19 2017, when PA’s highest court released its opinion of the case Commonwealth v Muniz (No. 47 MAP 2016). Today, the Pennsylvania Supreme Court has declared the retroactive application of the state’s SORNA laws to be unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.
Until today, Pennsylvania courts have found that the registration, verification, and counseling requirements of Megan’s Law/SORNA “were not sufficiently onerous to be considered punishment.” And because the provisions were not deemed punishment, their retroactive application did not violate the ex post facto clause of Pennsylvania’s Constitution. Since such rulings, such as in Commonwealth v. Williams, 832 A.2d 962 (Pa. Sept. 25, 2003) and Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. Ct. July 9, 2014), politicians and lawmakers have continued to add to the restrictions and requirements of those who were required to register as sex offenders. And as the court in Muniz found, these additional burdons have finally tipped the scale from remedial to punitive effects.
As a result of a conviction for Indecent Assault in Cumberland County, PA, Defendant was scheduled to be sentenced on May 8, 2007 at which time he would have been required to register as a sex offender for 10 years. Because Defendant absconded, he was not sentenced until after PA implemented its SORNA laws, and therefore was sentenced with lifetime registration requirements under SORNA. Upon appeal, the PA Superior Court affirmed the trial court’s decision on August 7, 2015. Defendant appealed the decision to the PA Supreme Court, which brings us to today’s ruling.
In its analysis, the PA Supreme Court court in Muniz was tasked with determining whether PA’s existing SORNA requirements, when applied retroactively, violate the PA Constitution and/or the United States Constitution. Having found that the legislative intent of SORNA was not to punish, the Court was next required to determine whether SORNA is “sufficiently punitive in effect to overcome the General Assembly’s stated non-punitive purpose” using the Mendoza-Martinez factors.
FINDINGS OF MENDOZA-MARTINEZ FACTOR ANALYSES
i. Whether the Statute Involves an Affirmative Disability or Restraint
“….we find the in-person reporting requirements, for both verification and changes to an offender’s registration, to be a direct restraint upon appellant and hold this factor weighs in favor of finding SORNA’s effect to be punitive.”
ii. Whether the Sanction Has Been Historically Regarded as Punishment
“We conclude the weighing process with regard to this Mendoza-Martinez factor presents a much closer case than the Smith Court’s analysis of Alaska’s registration statute in 2003. We consider SORNA’s publication provisions-when viewed in the context of our current internet-based world-to be comparable to shaming punishments. We also find SORNA and the Alaska statute are materially different in their mandatory conditions such that SORNA is more akin to probation. We therefore hold this factor weighs in favor of finding SORNA’s effect to be punitive.”
iii. Whether the Statute Comes into Play Only on a Finding of Scienter
“….we agree with the Smith Court in finding this factor is of little significance in our inquiry.”
iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment
“Under the circumstances, we conclude SORNA is much more retributive than Megan’s Law II and the Alaska statute at issue in Smith, and this increase in retributive effect, along with the fact SORNA’s provisions act as deterrents for a number of predicate offenses, all weigh in favor of finding SORNA punitive.”
v. Whether the Behavior to which the Statute applies is Already a Crime
“As with the third Mendoza-Martinez factor discussed above, this factor carries little weight in the balance.”
vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected
“We therefore conclude there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive.”
vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned
“Accordingly, we conclude SORNA’s requirements are excessive and over-inclusive in relation to the statute’s alternative assigned purpose of protecting the public from sexual offenders.”
viii. Balancing of Factors
“Our review of SORNA under the Mendoza-Martinez factors reveals significant differences between Pennsylvania’s most recent attempt at a sex offender registration statute and the statutes upheld in Williams II and Smith. As stated, we have determined four of the five factors to which we have given weight-all except for whether there is an alternative purpose to which the statute may be rationally connected-weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, [*72] including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose. Accordingly, we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution.”
State Ex Post Facto Claim
“For those reasons, we find Pennsylvania’s ex post facto clause provides even greater protections than its federal counterpart, and as we have concluded SORNA’s registration provisions violate the federal clause, we hold they are also unconstitutional under the state clause.”
What This Means for Current Individuals on The Registry
1) If you were initially not required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was required to register retroactively as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.
2) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to register for a longer period of time as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.
3) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to fulfill more obligations as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.
To put it simply, if your conviction was prior to December 20, 2012, SORNA’s provisions shall not apply to you.
The Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers
The Association for the Treatment of Sexual Abusers
Assessment and Treatment Alternatives
The Joseph J. Peters Institute
The Collateral Consequences Resource Center
The Social Science Scholars
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