Challenge to SORNA retroactivity reaches Pennsylvania Supreme Court

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.

On April 22, 2016, the Pennsylvania Supreme Court accepted review in, Commonwealth v. Muniz, Commonwealth v. Gilbert,and Commonwealth v. Reed.  The cases raise both state and federal challenges.  First among several of the most compelling claims, the appellants seek a ruling that SORNA is punitive, not civil, and therefore cannot be applied retroactively under the Ex Post Facto Clauses of the United States and Pennsylvania Constitution.  The United States Supreme Court in a 2003 ruling, Smith v. Doe, 538 U.S. 84 (2003), held that Alaska’s registry was designed to protect public safety, and was not so burdensome so as to constitute punishment.  Because the Ex Post Facto clause applies to punishment only, retroactively requiring people to register was therefore acceptable under the Federal Constitution.  But many state supreme courts are reviewing registration laws under their own constitutions, often with different results. SORNA, like those laws struck down in Ohio, Indiana, Maryland, and elsewhere, is much broader and harsher than the Alaska law at issue in Smith.  The appellants hope that the Pennsylvania Supreme Court agrees and declares the law punitive thereby invalidating the retroactive increases in registration.

The appellants also raise intriguing procedural due process challenges, particularly under the Pennsylvania Constitution.  Under another United States Supreme Court case, Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), the Court held that because Connecticut’s law sent no message beyond that registration attaches to particular convictions, the trial process itself afforded sufficient due process.  That is not the case in Pennsylvania.  SORNA, as specified by statute, declares that registrants are highly likely to recidivise sexually, and are therefore dangerous.  However, not only do those convicted of sexual offenses tend to be one of the least likely populations to commit another offense generally, Pennsylvania does not allow a registrant to show he or she is a low risk for reoffending and that question is not at issue during a trial on the underlying offense.   To make a public finding that an individual is dangerous, but failing to provide an opportunity to challenge that determination, the appellants believe the fundamental tenets of notice and opportunity to be heard are denied.

This due process concern is amplified in Pennsylvania because unlike the Federal Constitution, Pennsylvania’s Constitution includes reputation as a fundamental right.  The appellants have latched onto the added protections of this clause and raised a version of due process called the irrebutable presumption doctrine.  The doctrine provides that if a state denies a person or group a right based upon a particular presumption, the presumption must be universally true and there must be no reasonable alternatives available to determine the classification.  In plain language, the appellants argue that SORNA denies a person their right to reputation by presuming that a conviction for an enumerated offense means they are likely to sexually recidivise.  However, that presumption is not universally true because many offenders are not high risks to recidivise, and there are science based risk assessment tools that are capable of making these assessments, i.e., reasonable alternatives.

The court also accepted many other claims, so it obviously wants to put the issue to rest.  On which side of the bed it ultimately settles is currently difficult to guess.  A decision is likely expected sometime in early 2017.

Aaron J. Marcus

Mr. Marcus is an assistant defender with the Defender Association of Philadelphia’s appellate unit. He also serves as an adjunct professor of law at Widener University, Delaware Law School, where he teaches Criminal Procedure. He is currently specializing in the area of sex offender registration and writes and lectures on the issue. He was one of several counsel on the 2014 Pennsylvania Supreme Court case striking down sex offender registration for juveniles.

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