Tag: Pennsylvania

Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians. This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment). New Mexico’s Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records.  HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes.  Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area.  Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license.  Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person.  In addition, New Mexico extended its “ban-the-box” law to private employment, requiring employers to delay consideration of an applicant’s criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project.  We will be tracking restoration bills throughout the year, and will report periodically in this space – particularly when a significant new law is enacted. RECORD-CLEARING RELIEF  Utah – Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant “clean slate” law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020.  Acquittals and dismissals with prejudice are eligible.  Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria.  Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category.  77-40-116(1)(a) and (1)(b).  A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.”  § 34-52-301.  The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law.  § 34-52-201.  More information can be found in the Restoration of Rights Project, Utah profile. New Mexico – First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault.  See HB 370, signed into law not yet codified.  Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual.  Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions.  The court must find that “justice will be served by an order to expunge,” applying a multi-factor test.  Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors.  Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation.  More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia – Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019.  The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time.  (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.)  Violent and sexual crimes are ineligible.  Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later.  The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies.  Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies).  Employers required by state or federal law to conduct a background check may access expunged convictions.  More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky – Expanded expungement eligibility and procedural reforms   On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky’s expungement law, expanding non-conviction and felony eligibility.  First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged).  § 431.076.  Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions.  A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident).  Prior to that, Class D felonies were only eligible if adjudication was deferred.  Under SB 57, any Class D felony or a “series” of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death.  § 431.073.  If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant’s behavior since conviction, and warranted by the interests of justice.  Id.  More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska – Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records.  Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence.  Neb. Rev. Stat. § 43-2,108.03.  More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming – Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming’s juvenile expungement laws, effective effective July 1, 2019. These changes include the following.  No filing fee may be charged for a petition to expunge juvenile records.  A state or municipality may petition to expunge juvenile records.  Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request.  A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records.  Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records.  More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia – Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019.  This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court.  Va. Code Ann. § 19.2-392.2(I).  (Absolute pardons are generally granted only for innocence.)  More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio – Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor.  Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license.  Ohio Rev. Code Ann. § 9.78(B).  A fee of no more than $25 may be charged.  Id.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request).  Id.  In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license.  § 9.78(C).  More details can be found in the Restoration of Rights Project, Ohio profile. Utah – Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019.  See HB 90; Utah Code Ann. § 58-1-310.  A fee may be charged.  Within 30 days of receipt of a completed application,  the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”   See id; HB 90.  More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico – Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend “ban-the-box” to include private employers when it goes into effect.  Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant’s criminal history.  (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.)  Nonetheless, an employer “may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  And an employer may notify the public or an applicant that the law or the employer’s policy could disqualify an applicant with a certain criminal history from particular positions.  Id.  More details can be found in the Restoration of Rights Project, New Mexico profile.  (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving “moral turpitude.”)  CLEMENCY South Dakota – Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor.  See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11).  A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.”   More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS  Virginia – Reinstatement of drivers’ licenses  An amendment to Virginia’s 2019 budget bill specifically requested by Governor Ralph Northam to “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” was accepted by the legislature on April 3, 2019.  See HB 1700.  When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.    Read more

PA prepares to implement clean slate

Community Legal Services of Philadelphia (CLS), with the leadership of Sharon M. Dietrich, has issued a report on the progress made towards implementing Pennsylvania’s Clean Slate Act.  (See our post describing this ground-breaking law when it was enacted last June.)  Notably, the state is “on target” to start automated sealing of criminal records by the onset date of June 28, 2019.  As the report explains, “[a]utomated sealing will permit Pennsylvania to close the large ‘second chance gap’ between those eligible for expungement or sealing and those who actually benefit, by allowing cases to be sealed in a volume not possible in the absence of technology.”  The most ambitious aspect of the new law is its retroactive application to millions of people, some of whom were convicted decades ago. CLS is to be commended for marshaling lawyers and other advocates to make the relief promised by this law a reality.  Other jurisdictions across the country will have their eyes on Pennsylvania as it works to harness technology in the service of reintegration. The report’s overview is reprinted below: Get Ready, Get Set: Pennsylvania Prepares for Clean Slate Implementation By: Community Legal Services, Inc., Philadelphia, PA First Published: March 6, 2019 Last Updated: March 13, 2019 Overview On June 28, 2018, Governor Tom Wolf of Pennsylvania signed Act 56 of 2018, more commonly known as the Clean Slate Act. With its signing, Pennsylvania became the first state in the nation to enact automated sealing of criminal records by technology. Instead of expunging or sealing cases one by one with the filing, adjudication, and processing of petitions, millions of cases will be sealed by algorithms. Automated sealing will permit Pennsylvania to close the large “second chance gap” between those eligible for expungement or sealing and those who actually benefit, by allowing cases to be sealed in a volume not possible in the absence of technology. The Clean Slate Act provides that automated sealing will begin on June 28, 2019. Sealing of the inventory of millions of eligible cases will be completed by June 27, 2020. With fewer than four months until June 28th, the Administrative Office of Pennsylvania Courts (“the Courts”) and the Pennsylvania State Police (“the State Police”) are on target for successful implementation of automated sealing by the onset date. Meanwhile, Phase 1 of the Clean Slate Act, which expanded eligibility for sealing in Pennsylvania to most misdemeanor convictions, started on December 26, 2018. Phase 1 implementation marked the kick-off for public awareness of the Clean Slate Act around the state, featuring the following. The creation of the Clean Slate Screening Project, through which hundreds of volunteer lawyers are screening records and providing advice to the more than 7,500 Pennsylvanians who have signed up for assistance. The establishment of MyCleanSlatePA.com as a statewide resource. A press conference by Governor Wolf that generated statewide press about Clean Slate At present, Community Legal Services (CLS) and its many partners are working to insure the best and fullest possible implementation of the law. The issues that we are working on include the following. Insertion of missing data, such as grading information, into the Courts’ database. Resolution of court fines and costs that prevent sealing of convictions. Extending the implementation of Pennsylvania’s sealed cases to FBI background checks. Finally, CLS has published numerous resources explaining the Clean Slate Act, leading to better understanding of the law among lawyers, court personnel, policy makers, and the public. Read the full report here. Read more

Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.] On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”   As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features. In addition to authorizing automatic sealing through an “order for limited access,” HR 1419 retains existing authority for sealing by individual petition, and expands the range of cases eligible for relief through petition.  It does this in several ways: It makes certain misdemeanors eligible for sealing for the first time; It shortens the 10-year eligibility waiting period by having it run from conviction as opposed to completion of sentence, and makes only convictions that occur within that period disqualifying, as opposed to any arrests, as under present law (though all financial penalties must be satisfied – a provision not explicitly in existing law); It cuts back substantially on the kinds of prior convictions that will make individuals ineligible for relief under present law; It further limits dissemination of sealed conviction records, so that licensing agencies will not longer be routinely permitted access once a sealing order has been issued. It clarifies and amends the laws providing for dissemination of non-conviction and juvenile records by police departments.  However, by far the most noteworthy and unusual provision of the bill is its provision for automatic computer-assisted identification and sealing of eligible conviction records, obviating the need for any initiating court action by the subject of the records.  While a few states now authorize automatic sealing of some non-conviction records, no state extends automatic sealing relief to adult convictions, or even to non-conviction records on as extensive a basis as Pennsylvania will when HR 1419 is signed into law.  As noted below, some though not all of the expanded eligibility criteria for sealing by petition also apply to this so-called “clean slate” sealing. HR 1419 spells out a procedure by which the Administrative Office for state courts and the State Police will identify eligible cases, giving local district attorneys an opportunity to object.  Lists of cases deemed eligible for automatic sealing will be submitted on a regular monthly basis to commonwealth courts.  The courts will then issue a blanket “order for limited disclosure” applicable to each listed case, so that individuals will not have to file a court petition or pay a filing fee in order to have their record sealed. The bill also authorizes automatic sealing of records that did not result in conviction. Finally, the bill specifies the process going forward whereby the Administrative Office of the Courts and the State Police will identify through computerized search techniques the cases that are eligible for automatic sealing, and submit to the commonwealth courts on a regular basis lists of these cases for a judicial sealing order. Even after passage of the new law, there will still be cases in which an individual must file a petition in order to obtain sealing relief.  This is because not all cases eligible for sealing by petition will also be eligible for automatic sealing, notably because of differences in the types of prior offenses that are disqualifying.  For example, a prior felony or serious misdemeanor conviction at any time will disqualify an individual from consideration for automatic sealing, whereas only the most serious prior felonies will disqualify an individual for sealing by petition, and then most only for a limited period of time.  Conversely, all “summary” offenses are eligible for automatic sealing after 10 years.  (These minor offenses are not mentioned in the law providing for sealing by petition, but they are eligible for expungement after five arrest-free years.). The amendments enlarging eligibility for sealing by petition are effective December 26, 2018, while many other provisions of the Act are effective June 28, 2019.  The courts and state police are directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.  Indications are that implementation will be done in phases during that period. Note:  Thanks to Sharon Dietrich, a major force behind the Clean Slate Act, for reviewing the above description of the new law.   Read more

New expungement legislation: Maryland and Oklahoma

The trend toward expanding expungement and sealing laws is continuing.  In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018.  The provisions of these two newest laws are described below.  Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont.  Vermont S 173, enrolled and awaiting the governor’s signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee (“unless either party objects in the interest of justice”).   We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted. Oklahoma:  On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned.  Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction 5 years after completion of sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven (7) years,  and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12) (as amended by SB 650 (2018)).  The 2018 law reduces the waiting period from 10 years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past 15 years; and omits a requirement that the person first be pardoned. Okla. Stat. Ann. § 18(A)(12), as amended.  Oklahoma’s additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies are explained in the Oklahoma profile from the Restoration of Rights Project. Maryland:  On April 24, Governor Larry Hogan signed SB 101, adding felony offenses involving theft, drug trafficking and burglary to the list of more than 100 misdemeanors first made eligible for expungement in 2016.  The waiting period for felonies is 15 years after completion of sentence, while most misdemeanants must wait 10 years. (Misdemeanors involving “domestically related crimes” and second degree assault are subject to a 15-year waiting period.)  In addition, SB 101 eliminated the three-year waiting period previously applicable to expungement of non-conviction records, except for “probation before judgment” cases.  The new provisions are explained in greater detail in the Maryland profile from the Restoration of Rights Project.  Also in April 2018, the Maryland legislature acted favorably on a bill to require state licensing agencies to report by October 1, 2018 on the number of licenses granted or denied based on conviction in the past five years.  The fact that HB 1597 has been awaiting Governor Hogan’s action for more than a month does not bode well for its prospects.  States that have enacted new general occupational licensing requirements this year include Indiana, Tennessee, Arizona, Wisconsin, Massachusetts and Nebraska, with an enrolled bill awaiting action in Kansas.  These new laws are the subject of several recent posts (see, e.g., here and here) and are written up in detail in the relevant state profiles from the RRP. Read more

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. Read more