Sex Offender Registry

Pennsylvania Sex Offender Registry Act Unconstitutional as Applied to Low-Risk Non-Sex-Offender

The court relied on the right to “possess[] and protect[] ... reputation,” secured by the Pennsylvania Constitution.

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From Friday's decision in Commonwealth v. Muhammad, written by Judge Victor Stabile and joined by Judges Jack Panella and John Musmanno:

Based on Appellant's convictions for interference with custody of children ("interference") and conspiracy to interfere with custody of children ("conspiracy"), the trial court ordered Appellant to register as a sexual offender under Revised Subchapter H of the Sexual Offenders Registration and Notification Act ("SORNA") as a Tier I offender. We hold that SORNA is unconstitutional as applied to Appellant, because it creates an irrebuttable presumption that her convictions for interference and conspiracy make her a risk to commit additional sexual offenses….

The present case arose from a custody dispute between Khalid and Angelita, the father and mother of a three-year-old child, Pharaoh. Appellant assisted Khalid in taking Pharaoh away from Angelita by (1) driving with Khalid and Lisa Walker to Pharaoh's home in Reading, (2) pulling Angelita's daughter, Liajah, away while Pharaoh was placed in the car, (3) leaving Reading in the car with Khalid, Pharaoh, Liajah, and Lisa, and (4) driving to a train station in Philadelphia, where Pharaoh was transferred to another vehicle.

The interference and conspiracy convictions would normally require, under the Pennsylvania SORNA, that the defendant register as a sex offender; but this, the appellate court concluded, was unconstitutional in this case:

SORNA prescribes that "[s]exual offenders pose a high risk of committing additional sexual offenses[.]"Based on this presumption, SORNA requires the State Police to maintain a statewide registry of sexual offenders that lists substantial information concerning the offenders. Further, the State Police must disseminate this information to the public through a website that is searchable by "any given zip code or geographic radius set by the user." At sentencing, the trial court must, inter alia, inform a sexual offender of the offender's duty to register and require the offender to read and sign a form stating that the duty to register under this subchapter has been explained….

In J.B. and Torsilieri, the [Pennsylvania] Supreme Court analyzed whether SORNA utilizes an unconstitutional irrebuttable presumption. In J.B., several juvenile offenders argued that SORNA violated their due process rights by including an irrebuttable presumption that all juvenile offenders "pose a high risk of committing additional sexual offenses," the same language that Appellant challenges here. The Court agreed. It held that SORNA's presumption impinges upon the juvenile offenders' right to reputation embodied within Article I, Section 1 of the Pennsylvania Constitution without giving them a meaningful opportunity to challenge the presumption.

Next, based on research credited by the trial court, the Court concluded that the presumption was not universally true. Finally, the Court observed that SORNA already provides for individualized assessment of adult sexual offenders as sexually violent predators and juvenile offenders as sexually violent delinquent children. Thus, it was possible to use a similar individualized assessment process to consider whether juvenile sexual offenders posed a high risk of recidivating.

In Torsilieri, an adult defendant convicted of aggravated indecent assault and indecent assault claimed that SORNA was unconstitutional on its face by creating an irrebuttable presumption that all sexual offenders pose a high risk of recidivation…. [The Pennsylvania Supreme] Court acknowledged that the defendant presented "colorable constitutional challenges" through the scientific research he presented to the trial court in expert affidavits, [and] held that remand was necessary "to allow the parties to present additional argument and evidence to address whether a scientific consensus has developed to overturn the legislative determinations in regard to adult sexual offenders' recidivation rates and the effectiveness of a tier-based registration and notification system as they relate to the prongs of the irrebuttable presumption doctrine." …

The first prong of the irrebuttable presumption test requires us to examine whether, as applied to this case, SORNA encroaches on a due process right of Appellant. We find guidance on this subject from J.B.'s discussion of SORNA's impact on juveniles' due process right to reputation…. "[R]eputation is an interest that is recognized and protected by our highest state law: our Constitution." It is beyond serious dispute that registration as a sex offender creates a presumption—indeed, a stigma—that Appellant is a dangerous adult who is likely to commit further sexual offenses. This mark of disgrace profoundly affects her ability to obtain employment, education, and housing, which in turn impedes her ability to function as a productive member of society.

Furthermore, SORNA fails to provide Appellant a meaningful opportunity to rebut the presumption that she is a danger to re-offend. She was automatically designated a Tier I sexual offender based on her convictions for interference and conspiracy, and she will not have any opportunity to challenge this designation or claim that she has been rehabilitated throughout the fifteen-year registration period. These factors convince us that SORNA, as applied to this case, creates an irrebuttable presumption that encroaches upon Appellant's constitutional interest in her reputation.

The second prong of the irrebuttable presumption test calls for analysis whether SORNA's presumption that sexual offenders present a high risk of recidivating is true as to Appellant. It plainly is not. Prior to this case, Appellant had no criminal history. Furthermore, there is no evidence in this case that Appellant committed or intended to commit any acts of a sexual nature….

The final prong of the irrebuttable presumption test requires examination of whether reasonable alternatives exist to determine whether Appellant is a high risk to commit additional sexual offenses in the future. Appellant pointed out in her sentencing memorandum and again in this appeal that two such alternatives exist.

First, there are well-established risk assessment tools employed in Pennsylvania. The Sexual Offenders Assessment Board ("SOAB"), the entity created by the legislature to perform sexually violent predator ("SVP") assessments, has identified a variety of "actuarial instruments" that are available and preferable for determining risk assessments. These tools "should be routinely used" because they can help "distinguish between low-risk and high-risk sex offenders." Failure to do so "wastes resources" because "most sex offenders are never reconvicted for a sexual offense." Second, the SOAB itself could perform an individualized assessment, similar to the tests it performs to determine whether individuals are SVP's. Neither of these alternatives was used here.

For these reasons, we hold that, as applied to Appellant, SORNA's provision that sexual offenders pose a high risk of recidivating is an irrebuttable presumption that clearly, palpably, and plainly violates Appellant's constitutional right to reputation. Appellant's convictions for interference and conspiracy to interfere with custody of children were not sexual offenses.

The fact that Appellant had a prior record score of zero and her presentence report acknowledged that Appellant's offenses were "totally out of character" for her underscore the illegality of SORNA's presumption as applied to Appellant. Nothing in this record suggests that Appellant is a high risk to commit additional (or any) sexual offenses….

NEXT: Cuyahoga County Settles Anti-Discrimination Suit Against Covenant Weddings

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  1. I propose a Registry of People who Propose Registries. This is a classic form of lawyer paper work quackery, to generate worthless government worker jobs.

    Little Jessica was taken by a sex offender who was well known. The police, agents of the local prosecutor, visited his trailer across from hers. She was alive in his closet. He was too cowardly to kill her. He buried her alive with her blue dolphin plush toy. He got anal cancer on death row. The taxpayer spent a $million to torment him with medical care for this condition. He died of it.

    Then Megan opened the door to her neighbor, and was taken from us by a repeat sex offender loosed by the lawyer profession.

    The lawyer profession is a joke. The lawyer profession must be crushed if children are to be protected from these serial rapists and murderers.

    1. The worthlessness and rent seeking nature of these registries is on display. You will be prosecuted by the vile lawyer if you so much as criticize a sex offender.

      Here, from Pennsylvania.

      “Welcome to the Pennsylvania State Police Megan’s Law Website

      Warning
      Any person who uses the information contained herein to threaten, intimidate, or harass the registrant or their family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability.”

      You have To Agree to being prosecuted for any criticism of the sex offender, to enter the website.

      1. Threatening, intimidating, and harassing are more than simply expressing criticism.

        1. You could be prosecuted for hurting the feelings of a sex offender, a good lawyer client.

  2. That’s the Commonwealth Court, which is populated by judges, not justices.

    1. Prof. Volokh has said he does not read my comments. Perhaps someone else might alert him that Judges Stabile, Panella, and Musmanno are not justices?

      1. We disdain anything you post and mock you.

        1. We’re even on that.

          Therefore, this will be decided by who has won the culture war.

        2. Kirkland, when he wants to be, is actually intelligent and insightful.

          Too bad he generally wishes to be angry, hateful and inciteful instead.

          But he’s still worth reading just for the occasional comment where he drops the persona.

          1. I am starting to consider the arguments of some Democrats who are counseling caution with respect to enlargement of the Supreme Court.

            People I respect are circulating proposals to focus on other points — legislating very aggressively after tossing the filibuster, admitting a couple of states, expanding and populating the lower federal benches — while evaluating whether Court enlargement is necessary.

            I still lean toward Court enlargement, but I am open to suggestions it might be better to focus on other endeavors (with the recognition that expansion could be arranged in 2022 if necessary).

    2. You’re correct about their titles, but it’s the Superior Court not Commonwealth Court.

      1. You are right. Commonwealth is the plaintiff, not the court. That I know one of those judges makes it worse.

    3. “From Friday’s decision in Commonwealth v. Muhammad, written by Judge Victor Stabile and joined by Judges Jack Panella and John Musmanno:”
      Where do you read justices?

      1. I read it before the author corrected the mistake without acknowledging it. Not all publishers observe the journalistic standard that calls for noting corrected mistakes, especially when they dislike the person who identified the publisher’s error.

        1. Nitpicking is bad faith. It has an agenda, and is false. Crush all nitpicking.

  3. If allowed to run rampant, the lawyer profession will have us be Communist China. In China, they have Jaywalker Registries. One’s picture and personal information is on big video billboards. Then, facial recognition spots prior abusers of public bathroom toilet paper (greater than 1 meter used), and locks the dispenser in the park toilet.

    The lawyer profession is our Chinese Communist Party. It must be crushed to protect our nation and its freedoms.

  4. The police saw the weewee of a 10 year old peeing in an alley. He was placed on a sex offender registry in Texas. That was not even a sexual crime. It was a urinary crime.

    Thank the lawyer for this farce. This profession must be crushed if our nation is to be saved.

    1. Point to the part of the doll where the lawyer touched you.

      1. James, you support the listing of a 10 year old boy who peed in an alley, just to support lawyer rent seeking.

        1. I just tried googling the ten year old boy who was listed for peeing in an alley, and nothing came up. Are you sure you didn’t just make that one up?

          1. Mine is an anecdote, but it is not rare. These states list people convicted of public urination in sex offender registries, Arizona, California, Connecticut, Georgia, Idaho, Kentucky, Massachusetts, Michigan, New Hampshire, Oklahoma, South Carolina, Utah and Vermont. Texas has since allowed deregistration by youthful offenders.

            1. But were any of those people ten years old at the time, or did you just make that one up?

        2. “James, you support the listing of a 10 year old boy who peed in an alley, just to support lawyer rent seeking.”

          Grow the fuck up.

      2. James, 15 million common law crimes, a billion internet crimes, a $trillion damage to the economy every year the lawyer is allowed to breathe. Every self stated goal of every law subject is in failure. Your profession stinks.

        1. I recall an early anti-terrorism law under Clinton. It impinged on freedom, but the politicians swore up and down it would be used only for terrorism.

          They immediately used it against drugs. When asked about this, they did not trot out the sophistry that drug dealing was akin to terrorism, but rather said “The law doesn’t say terrorism.”

          Ha ha! The joke’s on us!

          I had been suspicious of government, but this was the birth of my hatred for the facade of lying, weasel politicians.

        2. “James, 15 million common law crimes, a billion internet crimes, a $trillion damage to the economy every year the lawyer is allowed to breathe. Every self stated goal of every law subject is in failure. Your profession stinks.”

          Now you’re mad at lawyers AND IT administrators?!?

  5. What does ‘custodial interference’ have to do with sexual offense….oh, wait, it is a jewish construct stemming from the jew game of family courts where a jew in a black robe applies ‘discretion’ to strip a parent of custody because they are divorced, for no-fault….so no one is at fault, but there is sexual crimes by interfering with ones own kid…..mmmm….how jewish can the law become? Just replace all statutes with the Talmud and the jew is happy!

    1. These Judges are Italian Catholics.

    2. Pavel’s ignorant and stupid anti-Semitism aside, he’s right that there isn’t a thing here that even remotely qualifies as sexual.

      I am not, in theory, opposed to a sex offenders registry providing it is limited to people who are actually dangerous. But the concept of “sex offender” has morphed into something that has little to do with actual dangerousness. At this point, I think shutting down registries altogether unless and until that issue is fixed would do far less harm.

      1. There is a commonly held misperception that people who commit sex crimes have 100% recidivism, once a sex criminal one is always a criminal with regards to sex.
        Then, society turns against the sex criminal who is, in fact, violent and/or recidivist, and turns the anger onto anyone nearby instead of reserving it for the actual violent recidivist sex criminals, who turn out to be rarer and harder to find than previously thought. Blame TV, because when they need a ratings push, cop shows bring in sex predators and serial murderers to drive the storylines. Blame Dick Wolf… he started out with a show that worked around one murder per week, and wound up with a half-dozen shows, with one focused on serial murderers and one focused on sex crimes. then, he found out there were cities other than New York, and now all his shows are set in Chicago.

      2. The relevant federal statutes require state registries to encompass child kidnapping offenses as well as sex crimes.

        1. All lawyers are feminists. The law is totally biased against the productive male.

          1. ” The law is totally biased against the productive male.”

            Why does your unproductive ass care?

  6. Troll commentators who 1 time in 1000 deviate from their bigoted trolling should not be responded to, ever. It just encourages them.

    WaPo hosting of the Conspiracy had its own problems but there was an “Ignore” button that was a godsend.

    1. Your brain has an “ignore” function, if you can be bothered to engage it.

    2. I complained to jeff@amazon.com that Volokh blocked me. A Vice President responded the next day, and restored my Washington Post posting privilege.

  7. That is a lot of fancy legal ink for “if you didn’t commit a sex offense, you shouldn’t be on the sex offender registry”.

    1. but if you aren’t on a registry, how will people know they should discriminate against you? Some kind of marking on the skin, perhaps? A black mark of some kind?

    2. I must admit to being completely baffled by why the crime qualified for a place on the sex offender registry.

  8. I’m one of the few people who will actually defend the idea of a sex-offender registry (though I limit my support to lists that contain people for whom there is actually reason to believe the likelihood of re-offending is above-average, and where the only condition attached to being listed is being on the list).

    The idea is, if you have, say, a sports coach who has in the past violated the trust of parents with regard to children placed in their care, parents might want to know that coach’s history when deciding who should coach their children. The true offense being monitored being abuse of trust, and the registry serving as a warning about who to trust (or not trust.)

    1. You should be listed in a Registry of Registry Supporters.

    2. What makes you say you’re one of a few?

      1. Being one of a few.

  9. I am fairly skeptical about the utility served by these registries, and especially skeptical that registration of this defendant would accomplish much. But I find the court’s theory of why and how the requirement is unconstitutional to border on incoherent.

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