Sex Offender Registry

Pennsylvania Supreme Court Recognizes Sex Offender Registration As Punitive

The court says retroactive application of the requirements violates the constitutional ban on ex post facto laws.

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Pennsylvania State Police

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."

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  1. So how many people end up back in prison due to registration? I’m not talking because of recidivating, but because they can’t find a job or a place to live after being listed?

    1. Or end up with felonies for failure to comply with registration requirements, even though the initial offense was a misdemeanor? I’ve seen that with some of my clients here in NC.

      1. I am guessing conplicated requirements with strict liability.

    2. Don’t fool yourself. Before such registries, public urinators were emboldened to start child brothels. Teen sex leads to college rape to basement dungeon to suicide cult, or something along those lines.

  2. Considering the behavior of certain Pennsylvania Supreme Court judges, I’m not surprised by this.

  3. Sorry, but I find this ruling dangerous. Before I move my family into a new neighborhood I want to know if there are any pedophiles in the area, for safety and home value reasons. In PA the registry includes what the offense (pleaded to or convicted of) was. So I can see if it were a 19 year old have consensual sex with his 17 year old girlfriend or a Jerry Sandusky who engaged in repeated institutional child rape for decades, and make my determination from there. Information and knowledge allow one to make better decisions, If your are okay have your kids live next door to a child rapist so be it. And you too should have access to that info. If you vitimize the weak and indefensible, you give up your expectation of privacy/anonymity.

    I’ll stand back as your collective heads explode.

    1. Why would that make anyone’s head explode?

      Your kind are as common as dirt.

      1. Be that as it may, remember though, dirt is essential to life.

        1. No, *soil* is what is essential to life. Dirt is that lifeless stuff that what is found swept under one’s rug and behind one’s door. Nothing lives or grows in dirt.

    2. yo man that’s cool, just be sure to spill your sneaky secrets to everyone who lives on your block so it’s even-steven

      1. You’ll have to explain to me how my weekly poker game is the same as forcibly sodomizing toddlers.

        1. What’s the percentage of offenses that even approaches your worst case scenario?

    3. You wanna violate other people’s constitutional rights so you can FEELZ safe?

      You’re Legion.

      1. Not interested in violating anyone’s rights.
        The legal system long ago established that some offenses are more offensive than others. They are divided as misdemeanor or felony and are weighted as to there severity and contrition to accepted societal norms and mores, otherwise shoplifting would carry the same punishment as murder 1. Child molesters/rapists are in the highest level of disdain. They are outcasts and targets of hate even within the prison society. All felons have restrictions placed upon them after release, pedophiles have the added restriction of letting common, blue-collar, working-class, tax paying. dumb MFers like me know where they live. Yep I worry about my kids safety and I want your kids to be safe too, that’s why we pay the boneheads running the legal system.

        1. “Not interested in violating anyone’s rights.”

          The rest of your post proves otherwise.

    4. You are certainly entitled to your misguided opinions, but don’t hold your breath waiting for heads to explode. Before the registries took hold of the country, reoffense rates were consistent with what they are now, and virtually all sexual crime against children was committed by those with no past convictions for such crimes. This is true today in the rest of the world where public notification and registration are not in place. And while you are entitled to your opinions, with rulings like this coming down, you will not be entitled to know the things about your neighbors that you believe keep you safe. Knowledge is indeed essential to make wise decisions, and you can get the facts about this issue and become a voice for truth and actual prevention.

  4. After people have completed their criminal conviction sentence, you cannot constitutionally have them register, tell them where to live, tell them where they can go, etc.

    Good start but the entire sex registry needs to be declared unconstitutional and move on.

    1. That’s my opinion also. I will say tho, if you’re sentenced to 5 years, but get out in two, if they want you to check in quarterly or whatever, it can only continue until your original sentence is up.

  5. In an armed society, taking unwanted liberties with an adult would be very dangerous in an immediate sort of way. That’s the kind of deterrence that actually works. People that have impulse control problems by definition discount future negative consequence for the immediate actions they are considering. When the potential negative consequences become sever, immediate and definite – the problem ends.
    In an armed society, taking unacceptable liberties with non-adults or persons with disabilities, etc. would also be dangerous because most people have someone that loves them and if they happen to walk in a sordid event of this nature would take the same actions as if defending themselves. If, on the other hand the offending behavior is discovered after the fact – lock up the offending party and throw away the key until he or she is incapable of recidivism.
    There’s a lot more that needs to be said about this including a good hard look at what constitutes consensual behavior.

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