By Larry Neely . . . What follows was composed utilizing portions of an analysis written by Aaron Marcus of the Defender Association of Philadelphia. We will endeavor to answer some of the most common questions that arise after a favorable decision has been handed down.
The Pennsylvania Supreme Court held that the current (2012) version of Pennsylvania’s Sex Offender Registration and Notification Act, hereinafter referenced as “SORNA,” is punishment and cannot be applied retroactively. See Commonwealth v. Muniz
The challenge was brought by Jose M. Muniz who was convicted in 2007 of indecent assault of a minor in violation of 18 Pa.C.S. § 3126(a)(7). Sentencing was scheduled for May 8, 2007; however, Mr. Muniz failed to appear. Had he appeared, he would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten (10) years pursuant to Megan’s Law III (SORNA’s Predecessor), which was the statutory scheme in effect at that time. During his absence from the state, the Pennsylvania General Assembly passed SORNA, which greatly expanded the duration of registration and obligations imposed on those subject to sex offender registration. When Mr. Muniz was finally sentenced, the current version was in effect, and he was classified as a lifetime registrant. He challenged SORNA, asserting that the law was punitive and cannot apply retroactively. After years of litigation, five justices on the state’s high court agreed.The Court declared that SORNA’s registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The Court held:
- SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive;
- retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and
- retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.
This decision is a significant departure from prior Pennsylvania decisions as well as the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003). 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 needed to address the federal constitutional claim. Complicating the opinion slightly is how the five justices reached this single conclusion. Three justices concluded that SORNA is punitive under the federal Constitution’s Ex Post Facto Clause. They applied the United Supreme Court’s 7-prong test established in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), which was the framework relied upon in Smith v. Doe. The three justices held that despite the Legislature’s expressed intent that SORNA be civil and non-punitive, the law imposes too many restrictions on individual liberty by requiring that registrants report in-person, potentially hundreds of times, and is too akin to historical punishments such as shaming and probation. 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 be applied retroactively.
Those same three justices also concluded that although the same test is applied under Pennsylvania law, Pennsylvania’s ex post facto provision 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 in much of the lead opinion’s reasoning but got there in slightly different ways. 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. The likely effect of the decision is that the registration terms of thousands of registrants across Pennsylvania (whose periods of registration increased dramatically on the date SORNA took effect) may be returned to their original terms. This means that hundreds could suddenly find that they have completed their original registration terms and will now be removed from Pennsylvania’s registry altogether.
This is a big win for registrants, and when combined with the Sixth Circuit’s analysis in Does v. Snyder, 834 F.3d 696 (6th Cir. 2016), there is an unambiguous message to legislators that they cannot continue: (1) adding more and more restrictions within their registration schemes; and (2) increasing periods of registration at will. We caution everyone not to become too giddy because the court did not find that registration, in and of itself, is unconstitutional; rather, they found the 2012 version unconstitutional as applied to Mr. Muniz. And the Court’s ruling does not address whether SORNA is punitive as applied prospectively because Mr. Muniz did not have legal standing to assert that claim. It is noteworthy that since the highest court in PA has now found that SORNA is punishment, that may open the door to new challenges whether the current scheme can continue to be enforced prospectively.