Big win for sex offenders in PA as registration held punishment

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.

Mr. Muniz was convicted in 2007 of indecent assault of a minor. 18 Pa.C.S. § 3126(a)(7). He fled at the time of sentencing and was not apprehended until 2014. During his absence, the Legislature passed SORNA, which greatly expanded the length and obligations imposed on those subject to sex offender registration. When Mr. Muniz was finally sentenced, SORNA applied and he was classified as a lifetime registrant. He challenged SORNA saying the law was punitive and cannot apply retroactively. Five Justices agreed.

Complicating the opinion slightly, for the law nerds amongst us, is how the five justices reach this single conclusion. Three Justices announced that SORNA is punitive under the Federal Constitution’s Ex Post Facto Clause. They applied the United Supreme Court’s test announced in Kennedy v. Mendoza-Martinez and found that although the Pennsylvania Legislature intended SORNA to be civil and non-punitive, the law imposes too many restrictions on individual liberty by making registrants report in-person, potentially hundreds of times, is too akin to historical punishments like shaming and probation, and pursues the same purposes as punishment – to punish and deter. Additionally, the court found that because SORNA imposes severe consequences on those “who in fact do not pose the type of risk to the community that the General Assembly sought to guard against” and includes “those convicted of offenses that do not specifically relate to a sexual act,” the law is excessive and over-inclusive. Thus, SORNA is “punishment” and cannot constitutionally apply retroactively.

Those same three Justices also concluded that although the same test is applied under Pennsylvania Law, Pennsylvania’s Ex Post Facto provision, the state clause is broader, and provides greater protection than the federal clause, thus ensuring that SORNA’s retroactive application independently violates state law as well.

Two Justices concurred in the result and much of the lead opinion’s reasoning, but got there in a slightly different way. Two Justices concluded that there was no reason to render a decision under the Federal Constitution and believed that the same result could be obtained under the State constitution exclusively. Although they concluded that “the United States Supreme Court’s interpretation of the federal ex post facto clause is entirely consistent with our understanding of Pennsylvania’s clause,” “nonetheless, as the lead opinion’s thorough analysis makes clear, applying the federal ex post facto standards also leads to the conclusion that SORNA is punitive and cannot be applied retroactively.” Although a little tricky, the narrowest reading appears to be that five justices agree that even if Pennsylvania law requires the application of identical tests as those applied federally, under an independent assessment of state law, the balance tips the scales in favor of punishment. Chief Justice Saylor was the lone dissenter.

The effect of the decision is to immediately alter the registration terms of thousands of registrants across Pennsylvania who saw their periods of registration increase dramatically on the date SORNA took effect. For those individuals, their periods of registration will likely revert back to the periods they were originally given at the time of their convictions. This means that hundreds if not thousands of people could suddenly find that they have completed their original registration terms and will now be removed from Pennsylvania’s registry altogether.

Finally, the Court says nothing about whether the decision has an effect on SORNA prospectively. However, if the law now says that SORNA is punishment, registrants, attorneys, and the courts will have to take a long hard look at the current statutory scheme and decide whether it can continue to be enforced in its current form, or whether certain protections typically attached to criminal sentences must now apply. This is a big win for registrants and those opposed to the misguided approaches Legislatures have taken to sexual crimes in recent years. Only time will tell how broad this ruling actually is.

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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