SVP Designation Under PA SORNA Deemed Unconstitutional

On October 31, 2017, the PA Superior Court (in Commonwealth v. Butler, 2017 PA Super 344) ruled that the methodology or “framework” used to designate individuals as Sexually Violent Predators (SVPs) under the State’s SORNA laws is unconstitutional.

Pennsylvania law (42 Pa.C.S.§ 9799.24) requires PA courts to order anyone convicted of a sexually violent offense (SVO) to be assessed by the Sexual Offenders Assessment Board (SOAB) in order to determine whether the individual  should be classified as a sexually violent predator. Prior to sentencing, the court “shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.” If an individual is deemed an SVO, he or she is required to register as a sex offender for life.

In Commonwealth v Butler, Appellant was required to register as a sex offender for a 15-year period based upon his conviction; however, as a result of being deemed an SVO he was subsequently required to register for life. In this case, the PA Superior Court analyzed this “framework” with consideration of Commonwealth v. Muniz, 164 A.3d 1189, in which case the PA Supreme Court ruled that SORNA’s requirements are “punitive,” i.e., they are to be considered punishment.

In its option, the Superior Court in Butler followed the findings of Alleyne v. United States, 133 S.Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and ruled:

“Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.”

“In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.”

In essence, because designating someone as a SVP under PA’s laws automatically increases his or her minimum registration period to lifetime (assuming the person is not already Tier III), this action creates added punishment. Therefore, this determination must be made by the trial fact-finder (judge or jury), AND must be proved “beyond a reasonable doubt”, not via “clear and convincing evidence,” which is the burden of proof in civil cases.

In light of its findings, the PA Superior Court forbade trial courts from designating anyone as an SVP, and from holding SVP hearings “until our General Assembly enacts a constitutional designation mechanism.”

This ruling is applicable to individuals who were designated as Sexually Violent Predators under SORNA laws (enacted December 20, 2012), AND whose registration period was increased to lifetime as a result of the designation.


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5 Responses to SVP Designation Under PA SORNA Deemed Unconstitutional

  1. Jim says:

    So it seems Gov. Wolff signed legislation that basically undermines the ruling of the court with Act 10 of 2018 which reverses the ruling of the court. i received a letter from PSP last week stating my tier was lowered from 2 to 1 and i had to go to the PSP to make an appearance, even though i just did in jan and wasnt due again until june, and it would start the clock on my 1 yr period. i called down to harrisburg last thursday and was told that yes i was lowered because of the new act and that my status is still being reviewed for possible relief finally because i was given a 10 yr in 2004 and received a judgement order in 2014 of completion of my requirements but PSP turned a blind eye to it but now it seems as if i might have some good news coming soon.

    • Jim says:

      well, here is the act as written on Gov. Wolff’s website dated Feb 21, 2018:

      Harrisburg, PA – Governor Tom Wolf today signed House Bill 631 into law, now Act 10 of 2018, the primary intent of which is to provide for greater public safety by ensuring convicted sexual offenders remain subject to registration requirements in the wake of recent court decisions impacting Pennsylvania’s implementation of the Sexual Offender Registration and Notification Act (SORNA).

      The legislation, introduced by Rep. Ron Marsico, would ensure that as many as 12,000 sexual offenders remain on Pennsylvania’s registry and subject to the regulations in place at the time of their offense – either a 10-year or lifetime registration.

      “I am proud to sign this bill, which helps to keep Pennsylvanians safer by maintaining a comprehensive list of sexual offenders,” said Governor Wolf. “We must maintain confidence in our judicial system, especially for victims of sexual abuse crimes. This bill works to help do that.”

  2. Jim says:

    B- Free:

    What do you mean (currently good law?).

    Also- Is Muniz currently “good law?”
    that can be applied by the courts for existing cases that are not newly filed and happen to be in the pipeline?
    Or is there a stay currently that prohibits courts rending relief for recently decided cases?

    Thank you

  3. Paul says:

    If PA SC affirms this decision, then it will put to bed the so called 50 / 50 split on the PA constitutionality, wouldn’t it?

    “In sum, we are constrained to hold that section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact- finder making the necessary factual findings beyond a reasonable doubt.”

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