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.
The Pennsylvania Supreme Court, in a divided opinion, has held the provisions of the state’s sex offender registration law (SORNA) unconstitutional under the state and federal constitutions. The majority in Commonwealth v. Muniz held that 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. The Court distinguished the Alaska registration scheme upheld by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and cited a number of other recent state high court holdings invalidating similarly harsh registration regimes. The Court relied heavily for its analysis on an amicus brief filed jointly by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (PACDL). CCRC also filed an amicus brief in support of the plaintiffs, describing the counterproductive effects of such registration schemes. The concurring and dissenting opinions are posted here and here.
A full analysis of the holding and of the concurring and dissenting opinions will follow shortly.
The author of the following post about the Supreme Court’s decision in Jae Lee v. United States drafted an amicus brief in the case for several national immigrant rights organizations.
In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for so long and had served in the military in Vietnam. However, Padilla’s case was remanded for a lower court determination of whether his trial lawyer’s incompetence caused him prejudice, since a defendant can win an ineffective assistance of counsel claim under the Court’s 1984 decision in Strickland v. Washington only by showing both attorney incompetence and prejudice.
Last week, in Lee v. United States, the Court considered the standard for proving prejudice, ruling in Lee’s favor in a 6-2 decision by Justice Roberts (Justices Alito and Thomas dissented). The Government conceded that Jae Lee’s trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The only issue for the Court was the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt.
The Supreme Court has settled a dispute lingering in the lower courts since its decision seven years ago in Padilla v. Kentucky: If a criminal defendant’s decision to plead guilty resulted from his lawyer’s constitutionally deficient advice about the collateral consequences of conviction, what does he have to show to undo the plea and bring the government back to the bargaining table? The question before the Court in Jae Lee v. United States was whether a defendant facing deportation must be given a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though the odds of his winning at trial are low and he is likely to be deported anyway.
The government argued that no “rational” defendant in Lee’s position would have risked a longer prison term, that he therefore could not show that he was prejudiced by his lawyer’s bad advice, and that the plea should accordingly stand. Lee countered that “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” and that he would have taken his chances with the jury if he had had accurate advice about the consequences of pleading guilty. As the Court put it, he “would have rejected any plea leading to deportation in favor of throwing a ‘Hail Mary’ at trial.”
On June 23, the Supreme Court agreed that Lee should have another bite at the apple. In an opinion by Chief Justice Roberts, the Court held 6-2 that Lee had met his burden of showing that it would not have been “irrational” for him to reject the plea offer and go to trial, even though he would have been “almost certain” to lose.
The Court’s opinion is analyzed by Amy Howe at SCOTUSblog here. Justices Thomas and Alito dissented, and Justice Gorsuch took no part in the decision.
The title of this post is the Washington Post’s “Fact Checker’s” assessment of a statement in Justice Alito’s concurrence in Packingham v. North Carolina about the recidivism rates of sex offenders. We reprint excerpts because of the importance of the issue to the Supreme Court’s collateral consequences jurisprudence:
“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”
–Supreme Court Justice Samuel A. Alito Jr., concurring opinion in Packingham v. North Carolina, June 19, 2017
. . . . .
The Fact Checker normally doesn’t fact-check Supreme Court justices, and we certainly do not fact-check opinions. But the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.
What do the data show?
The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites. SCOTUSblog’s Amy Howe introduced the Court’s ‘s holding in Packingham v. North Carolina as follows:
In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.
This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.
At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June. What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.
Last week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”
The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague. Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors. This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.
A former University of Maryland student who pled guilty last April to throwing a punch that resulted in the death of a fellow student, has been allowed the benefit of a nonconviction disposition that will likely result in the expungement of his record. According to a report in the Washington Post,
Prince George’s County Judge Albert W. Northrop ordered the manslaughter conviction of Arasp Biparva in the 2014 killing of Jack Godfrey vacated. The judge also granted Biparva probation before judgment, which means the charges can later be expunged from public records.
The modified sentence will help Biparva, 25, as he finds a job in accounting, according to his attorney.
“Currently the conviction will interfere with the application process and prevent Mr. Biparva from obtaining the certifications he needs to advance his career,” his attorney, Barry Helfand, said in a request for the modified sentence.
Most of the public interest in the Supreme Court’s cert grants on Friday focused on the transgender bathroom case from Virginia. But the Court also granted cert in two cases involving collateral consequences: one a First Amendment challenge to a North Carolina law barring a registered sex offender from internet access; and the other whether a man convicted in California of having consensual sex with his underage girlfriend committed an “aggravated felony” subjecting him to deportation. Here are the SCOTUSblog descriptions of the two cases:
Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.
In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.