Yesterday the Pennsylvania Supreme Court ruled that the state's registration requirements for sex offenders impose punishment in the guise of regulation and therefore cannot be applied retroactively to people who committed their crimes before the rules were established. Five of the six justices who heard the case agreed that retroactive application of Pennsylvania's Sex Offender Registration and Notification Act (SORNA) violates the U.S. Constitution's ban on ex post facto laws as well as a similar provision in the state constitution.
The decision in Pennsylvania v. Muniz describes SORNA as more punitive than the Alaska registration law upheld by the U.S. Supreme Court in the 2003 case Smith v. Doe. In the latter case, the Court rejected an ex post facto challenge, viewing Alaska's law as a "civil regulatory scheme" aimed at protecting the public from recidivist sex offenders. But it allowed for the possibility that a law's effects could be punitive enough to "negate" a state's description of it or a legislature's avowed intent in passing it, in which case the Ex Post Facto Clause would apply.
SORNA is such a statute, the Pennsylvania Supreme Court concludes in a majority opinion by Justice Kevin Dougherty, who emphasizes the law's broad sweep and strict reporting requirements. "SORNA differs from the Alaska statute upheld in Smith by requiring quarterly in-person appearances and in-person appearances for any updates to an offender's information," Dougherty writes. He notes that the sex offender who brought the case, Jose Muniz, "must appear a minimum of 100 times over twenty-five years, and for the rest of his life," at a state police registration site. And that's assuming "he never changes his name, residence, employment, phone number, car, or e-mail address, or goes on vacation." Failing to report is a felony.
Muniz was convicted of indecent assault in 2007 for touching the breasts of his girlfriend's 12-year-old daughter. At the time he would have been required to register as a sex offender for 10 years. But Muniz failed to appear at his sentencing hearing and was not apprehended until 2014, at which point state law had been changed to require lifetime registration for people convicted of indecent assault when the victim is younger than 13. The registration requirement was in many ways more onerous than Muniz's official sentence of two to 14 months.
In fact, Dougherty observes, it is often the case that registration, which puts detailed information about an offender in an online, publicly accessible database, imposes a bigger burden than the explicit penalty attached to a crime. In addition to the reporting requirements, he says, there are "extraordinary secondary disabilities" in traveling out of state (which requires in-person notice at least three weeks in advance) and "in finding and keeping housing, employment, and schooling," not to mention the risk that "the offender may be subject to violence and adverse social and psychological impacts."
SORNA assigns offenders to one of three tiers based on their crime of conviction, as opposed to an individualized assessment of the danger they pose. Tier I, Tier II, and Tier III offenses trigger, respectively, 15 years of registration with annual reporting, 25 years of registration with semi-annual reporting, and lifetime registration with quarterly reporting. "Many SORNA offenses are misdemeanors where lengthy incarceration is unlikely and often impossible," Dougherty notes, "and thus SORNA is the greatest form of deterrence for those crimes."
The "sex offenders" covered by SORNA not only vary widely in the gravity of their crimes and the threat they pose to public safety; they are not even necessarily sex offenders. The court notes that SORNA covers "offenses that do not specifically relate to a sexual act," such as unlawful restraint, false imprisonment, and interference with the custody of a child.
In viewing SORNA's burdens as criminal penalties notwithstanding the state legislature's description of the law as "nonpunitive," the court applied the criteria outlined by the U.S. Supreme Court in the 1963 case Kennedy v. Mendoza-Martinez. "Four of the five factors to which we have given weight…weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose," Dougherty writes. "SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose."
This ruling, which could affect thousands of offenders who, like Muniz, were retroactively subjected to tougher rules, is in some ways more striking than the 2016 decision in which the U.S. Court of Appeals for the 6th Circuit concluded that Michigan's Sex Offender Registration Law is punitive. In addition to in-person reporting requirements, the Michigan law imposes restrictions on where registrants may live, work, or "loiter."
The Pennsylvania Supreme Court, which in 2014 rejected lifetime registration of juvenile sex offenders, even cast doubt on the continuing validity of the U.S. Supreme Court's 2003 judgment that public registration itself is not a punishment. "Smith was decided in an earlier technological environment," Dougherty says, noting that the vast majority of households now have internet access. "We consider SORNA's publication provisions—when viewed in the context of our current internet-based world—to be comparable to shaming punishments."