Two years ago, the Pennsylvania Supreme Court shook up long-settled orthodoxy by ruling that the state’s sex offender registration law, otherwise known as SORNA (Sexual Offender Registration and Notification Act) was punishment. The case, Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2018), presented the Court with two questions: whether people who committed their crimes before the adoption of the law could continue to be registered without running afoul of the state Constitution’s Ex Post Facto Clause, a fairness doctrine that prevents governments from retroactively applying greater punishments to conduct than could have been applied at the time of the crime; and, second, whether the law more broadly violates due process by unfairly labeling a person as sexually dangerous without first proving that fact and without giving the person an opportunity to challenge that message. While the Court answered the first question with a resounding yes, it punted on the second.

The effect of that decision meant that although Pennsylvania was forced to reduce the length of registration for many people who had committed their crimes many years before, or in many cases remove them from the registry altogether, it did little to change how the law would be applied moving forward.  SORNA was largely left undisturbed for the roughly 1500 new people added to the registry every year.  The due process issue left undecided by the Pennsylvania high court in Muniz is now again before that court, and this time it will be harder to avoid deciding it.

One of the first people to be required to register under the new law was the defendant in Commonwealth v. Torsilieri.   Torsilieri was convicted by a jury of a non-consensual sexual offense. He had no prior record, the jury acquitted him of the most serious charges, and according to the trial judge he did not pose a risk of committing other crimes. Yet, SORNA automatically required him to register for the remainder of his life. He is now 27. Not willing to accept that consequence, Torsilieri filed a pre-sentence motion seeking to bar his registration under nine different theories. Specifically, he relied on the Pennsylvania Constitution’s Declaration of Rights, which treats the right to reputation as fundamental and deserving of the same protections our federal constitution affords to life, liberty and property.  He also raised other claims under the state and federal constitutions, notably that SORNA is overbroad on its face and therefore cannot be applied to anyone without violating their rights to due process.

Although many of his specific claims have been raised by others seeking to challenge SORNA in the past, as we described more fully in earlier posts, the real strength of Torsilieri’s case is that he decided not to rely on legal arguments alone. He knew that facts matter, and that the facts are on his side. In support of his claims, he hired three of the world’s leading experts to present evidence that SORNA is overbroad and ineffective. The evidence and agreement is overwhelming, and importantly the state did not even attempt to rebut it. Torsilieri established that not all people convicted of sexual crimes are alike, and that many pose no more risk to the community of committing another sexual offense than people convicted of any other crime, from drug possession to theft. Most people now required to register will never reoffend, and even the few people who do, will do so within the first 10 years of their release. Moreover, he showed that SORNA does not keep us safe. It creates merely an appearance of safety, while in truth the law threatens the community by making those on the list second class citizens, thereby depriving them of the key things that reduce risk of reoffending, like jobs, family, and community reintegration.

On August 31, 2018, the trial court issued an 80 page opinion adopting the experts’ evidence and finding that SORNA violates both state and federal Due Process as well as a number of other constitutional provisions. The government appealed to the State Supreme Court.

Now, the Pennsylvania Supreme Court must address the broader question left undecided in Muniz: whether Pennsylvania’s current version of SORNA may constitutionally brand people with a contemporary scarlet letter without sufficient due process.  Or, if the law remains punitive, does it violate a host of other constitutional protections which accompany punitive laws, such as the prohibition on cruel or unusual punishments.

Before even addressing the key legal arguments, however, the Court must decide whether and to what extent it must consider the expert’s evidence. While the State challenges the import of the evidence, it is unlikely that the Court will seek to revisit foundational law establishing the primacy of judicial review. Despite a strong preference for deference to legislative fact-finding, no court and no standard of review has ever required the abdication of the courts’ independent responsibility to ensure that laws depriving fundamental rights do not overstep constitutional bounds.

It is unlikely this Court will accept the State’s position that it should not consider the expert’s opinion.   Even so, however, the Court has its job cut out for it.  Because Torsilieri won below, in order to save SORNA the Court must address each of his claims. While Muniz sheds light on the Court’s thinking that SORNA has overstepped constitutional bounds beyond its retroactive application, it is not clear which if any legal avenue the Court might pursue if it once again strikes down the law, this time in a case decided after its enactment.  If the Court strikes down SORNA under a due process theory, the Legislature will be tasked with reexamining the law’s fundamental premise – that all ex-offenders are and will permanently remain “high risks” to the community. That reexamination is precisely what appellee seeks. A decision on the case is expected sometime in early 2020.