Pennsylvania Supreme Court Rules State Sex Offender Registration Law Violates Ex Post Facto Clause
by David Reutter
The Pennsylvania Supreme Court held that the registration sections of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) are punitive and thus cannot be applied retroactively. The Court concluded that applying SORNA’s registration requirements to a defendant convicted of offenses prior to SORNA’s effective date but sentenced afterwards violates the federal and state Constitutions’ Ex Post Facto Clause.
The Pennsylvania General Assembly strengthened its sex offender registration laws with the enactment of SORNA in 2012. It created three tiers, with Tier III requiring lifetime registration. Jose Muniz was convicted in 2007 of touching the breasts of his girlfriend’s 12-year-old daughter. He absconded prior to sentencing but was recaptured for sentencing in September 2014.
SORNA requires categorization as Tier III for persons convicted of indecent assault of a person less than 13 years of age, so Muniz was sentenced to lifetime registration requirements as a Tier III offender. Muniz argued unsuccessfully that he should have been sentenced to a 10-year registration period under the then-effective Megan’s Law III before it was replaced by SORNA.
The Pennsylvania Supreme Court granted review and began its analysis with Muniz’s federal ex post facto claim. It found that SORNA was enacted for the stated purpose of complying with federal law and “not to punish, but to promote public safety through a civil regulatory scheme.”
SORNA, however, could still be found to be punitive in effect, despite the stated intent for its passage. The Court determined that it involves an affirmative disability or restraint. It noted SORNA requires him to report in-person 100 times over the next 25 years. This does not include the times he must appear due to his “free” choices, such as moving or traveling out of state, which require additional in-person reporting. Accordingly, the in-person reporting requirement was found to be punitive.
The Court viewed “SORNA’s publication provisions—when viewed in the context of our current internet-based world—to be comparable to shaming punishments.” Shaming punishments were widespread in the colonial-era. The Supreme Court further found SORNA’s requirements are similar to probation requirements. Thus, it concluded the posting of information and reporting requirements to be punitive.
It determined SORNA promotes the traditional aims of punishment. The Commonwealth admitted SORNA is meant to have a deterrent purpose and effect, and the high court agreed “that the prospect of being labeled a sex offender accompanied by registration requirements and the public dissemination of an offender’s personal information over the internet has a deterrent effect.”
For the foregoing reasons, the Court concluded SORNA violates the federal Ex Post Facto Clause. It reached the same conclusion as to the Ex Post Facto Clause contained in Pennsylvania’s Constitution, which it stated “provides even greater protections than its federal counterpart….” Therefore, the Court announced “we hold they [SORNA registration provisions] are also unconstitutional under the state clause.” The Pennsylvania Supreme Court vacated that portion of Muniz’s sentence requiring him to comply with SORNA. See: Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
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