Yesterday, in Commonwealth v. Muniz, __A.3d__ (Pa., July 19, 2017) (47 MAP 2016), the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The majority of the Court held in no uncertain terms:
1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.
This is a radical shift from prior Pennsylvania and federal law. Although the reasoning of the justices to get to this result is a little convoluted because several in the majority did not believe that the court even needed to address the Federal claim, the end result is clear. The decision directly affects roughly 4500 people in addition to Mr. Muniz.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
Pennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods. No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia. Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws. The abstract follows:
Lincoln Caplan writes in this week’s New Yorker about Judge Frederic Block’s decision last week to reduce a woman’s prison sentence because of the life-altering collateral penalties she faced on account of her drug conviction. After describing the facts of the case and the judge’s reasoning, Caplan concludes with the following comments about what Jeremy Travis has called “invisible ingredients in the legislative menu of criminal sanctions”:
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
One of the most significant things about Mr. Caplan’s comments is that they make clear he believes collateral consequences are “punishment,” not “regulation,” and should be treated as such. Courts are beginning to regard them as such as well for purposes of applying constitutional principles. See, for example, the three cases now pending in the Pennsylvania Supreme Court, where the validity of the state’s new sex offender registration scheme is at stake. States are increasingly looking at lifetime registration as punishment under their own state constitutions. So it should not be long before the U.S. Supreme Court is asked to reconsider its 2003 holdings that such collateral consequences are immune from constitutional challenge based on the Due Process and Ex Post Facto clauses.
More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program. Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders. SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years. SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report. Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.
In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life. Hundreds of registrants sued, raising a number of different challenges to the law. Until now, the Pennsylvania Supreme Court has refused to get involved.
The Cumberland County (Pennsylvania) Sentinel recently published a series of articles by Joshua Vaughn that examine the operation and effect of sex offender registration laws from a variety of perspectives. We summarize the articles with links to the Sentinel’s website.
Finding statistics to fit a narrative
Vaughn traces the “frightening and high risk of recidivism” for untreated sex offenders that Justice Kennedy used to support the Supreme Court’s holdings in McKune v. Lile (2002) and Smith v. Doe (2003) to an unsourced “anecdotal quip” in a 1986 article from Psychology Today suggesting sex offender recidivism rates as high as 80%. That figure found its way into a Justice Department practitioner’s guide for treating incarcerated sex offenders, which in turn was cited by the Solicitor General’s amicus brief in McKune. Vaughn, asking how such a questionable statistic could turn out to be a “linchpin fact” in two extremely influential Supreme Court cases, proposes that the Court relied on the Solicitor General, who in turn relied on the practice guide without doing his own research.
Vaughn reports that the Justice Department “now states on its website that the rate at which released sexual offenders are rearrested for new sexual offenses is as low as 3 to 10 percent,” evidently referring to a report of the Bureau of Justice Statistics.
A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country. On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies. The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.” The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.
An effective NPR piece tells the story of Tyrone Peake, a Pennsylvania man whose 1981 conviction for attempted theft barred him from employment as a caregiver in a nursing home, despite training and certification that qualified him for the job. The state law making people with a felony record absolutely ineligible for employment in any health care facility in the state was was held unconstitutional by the Pennsylvania Supreme Court 15 years ago on equal protection grounds. However, it remains on the books and enforced despite repeated rulings by lower courts invalidating it in particular cases. Now another lawsuit has been filed, with Mr. Peake as one of the plaintiffs, that seeks to put an end to this broad and unfair collateral sanction once and for all. The lawsuit is described in the following article from the website of Community Legal Services of Philadelphia, one of the law’s challengers. Read more
Alan Gura describes in this post recent efforts to persuade federal courts that people who have lost their firearms rights by virtue of a criminal conviction may be entitled to claim the protections of the Second Amendment. Alan himself has spearheaded this litigation for the Second Amendment Foundation, following up his Supreme Court victories in D.C. v. Heller and McDonald v. Chicago. While successes have to date involved civil rights actions in behalf of people with dated non-violent convictions, these precedents may eventually find their way into felon-in-possession and related prosecutions. They also may portend, like the cases invalidating retroactive registration requirements, a greater willingness by courts to limit the scope of categorical collateral consequences that are considered unreasonable and unfair. Ed.