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District Attorney to seek SCOTUS review of PA decision

By Joshua Vaughn . . . Roughly two weeks ago the Pennsylvania Supreme Court deemed the state’s current sex offender registration law to be punishment and ultimately barred by both the state and federal constitutions when applied retroactively.

That decision may now end up under review from the highest court in the country.

Cumberland County District Attorney David Freed said Friday his office would ask the Supreme Court of the United States to review the decision, which was handed down on July 19.

Freed contends the state court was split on whether the state constitution provides protections independent of the federal constitution, leaving the door open for possible review by the U.S. Supreme Court.

Punishment?

In 2012, Pennsylvania updated its sex offender registration law to come in compliance with an expanded federal registration law known as the Sexual Offender Registration and Notification Act.

Roughly 2,000 people who had previously been convicted but not required to register were added to the state registry.

An estimated 4,500 more people saw their registration requirements increase and many were required to register for life, according to the Associated Press.

“We’ve had clients where they’ve had previous registrations of 10 years or less than lifetime registrations and then having to come back and being told ‘you are now either lifetime or you are a 15-year registrant, 25-year registrant, something else,’” Cumberland County Chief Public Defender Michael Halkias said. “There’s been a lot of frustration from clients that it’s unfair that they now have these longer registration periods.”

Individuals on the registry are required to be photographed and submit information including their address, vehicle identification, employment and social media use to state police at regular intervals ranging from once a year to once every three months depending on the offense the person was convicted of.

Registrants are also required to update their record every time that information changes. Failing to do so can result in a criminal conviction and a prison sentence of several years.

At least 17 people in Cumberland County have been charged with failing to comply with the sex offender registry requirements since 2010, according to an analysis of court records conducted by The Sentinel.

“Our position has always been that it is punishment,” Halkias said. “It’s been very difficult to explain to people why it’s not considered criminal punishment. … I can’t say why they rationalized it that way, other than they could and wanted to.”

The case

The July 19 decision was a win for Halkias’ office, which argued their client Jose Muniz was subject to harsher penalties under the Megan’s Law update than were in place when he was convicted.

Muniz was convicted in 2007 in Cumberland Count of indecent assault of 12-year-old girl, but fled the state prior to sentencing. He was rearrested and sentenced in 2014. Under SORNA, Muniz was required to be on the sex offender registry for life. At the time of his conviction, Muniz would have only been required to register for 10 years.

Freed said his office has roughly 90 days to file its appeal with the Supreme Court.

“We believe that should put any action by the State Police regarding registration on hold and have informed them of the same,” Freed said. “Ultimately, what they do is up to them and the Governor’s Office of General Counsel.”

There is no guarantee the U.S. Supreme Court will accept the petition for review. The high court is deciding if it will take up a similar case from Michigan.

Recidivism

“My understanding is (the registry is) not considered punishment because it is post-sentencing and it is part of public safety,” assistant professor of criminal justice and criminology at Sam Houston State University Brandy Blasko said. “It’s not meant to punish the person, but it’s meant to protect the public. That was the idea, but empirically we know it doesn’t protect the public.”

Blasko, who previously worked in sex offender rehabilitation for the Pennsylvania Department of Corrections, said current policy, like sex offender registries, make individuals less connected to society, which can make them more likely to commit crimes.

“We obviously know from desistance theory that people need to be connected to their communities and feel connected to their communities,” she said. “Not only having a criminal record restricts employment but having the label of sex offender really restricts employment.”

Blasko said much of current sex offender policy is based around the assumption that people convicted of sexual offenses are highly likely to commit more offenses once they are released.  In passing the 2012 update, the Pennsylvania Legislature included language that the “Legislature found that … sexual offenders pose a high risk of committing additional sexual offences, and protection from this type of offender is a paramount government interest.” Blasko said the notion of high recidivism rates for all of the people on the registry is not true.

A wide-scale study released by the Bureau of Justice Statistics in 2016 looking at inmates who were released from prison found only 5 percent of people convicted of rape went on to be arrested for a new sexual offense within three years of their release.

Between 2013 and 2016, there were more than 300 charged sexual offense cases in Cumberland County. Less than 2 percent of those cases involved defendants on the state sex offender registry, according to an analysis of court records conducted by The Sentinel.

The concept of high recidivism rates for sexual offenders appears to have had less-than-scientific beginnings.

In a 2016 article, Arizona State University Law professor Ira Ellman found the current legal argument for high recidivism rates comes from a 1986 Psychology Today article. The article, written by counselor Robert Longo to tout a sex offender treatment program he ran, quipped that up to 80 percent of untreated sex offenders go on to commit new offenses.

Figures from Longo’s article have been cited by the U.S. Supreme Court to uphold previous iterations of sex offender registration laws. Longo has since disavowed the 80 percent figure and publicly opposed sex offender registries. In speaking with The Sentinel in 2016, Longo said the 80 percent figure is inaccurate and a “very high estimate.” He said it was unfortunate that his work has been used to support registries because “those laws did nothing. (Registries) didn’t prevent anything.” He now places recidivism rates at roughly a quarter of his original estimate. “People are going to take anything that works to their advantage, or twist a quote, to make it work to their advantage, and I just think it’s unfortunate,” he said.

Source: The Sentinel

This topic contains 16 replies, has 2 voices, and was last updated by  who removes from list 1 week ago.

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  • #17772 Reply

    TXSO4Life

    Robin, I agree that Court will not grant cert UNLESS its intention is to reverse the Sixth Circuit; however, I also tend to believe that SCOTUS will grant cert to resolve CIRCUIT SPLITS as Michigan repeatedly stated in their briefs. If and when SCOTUS granted cert, I believe they WILL do so based on contractions in briefs between STATES, FED, and the splits at the lower federal courts levels. Just my 2 cents.

    • #19058 Reply

      who removes from list

      My husband located this: FIRST DECISION/STATEMENT APPLYING THE MUNIZ DECISION IN THE PA SUPREME COURT!!! No need to read it all this Judge is against the decision of Muniz, but the last paragraph says it all. Muniz is law and must be applied to Leroy Spann.

      IN THE SUPREME COURT OF PENNSYLVANIA
      MIDDLE DISTRICT
      LEROY SPANN,
      Appellant
      v.
      PENNSYLVANIA BOARD OF
      PROBATION AND PAROLE AND
      PENNSYLVANIA STATE POLICE,
      Appellees
      :
      :
      No. 71 MAP 2016
      Appeal from the Order of the
      Commonwealth Court at No. 728 MD
      2012 dated June 9, 2016.
      CONCURRING STATEMENT

      JUSTICE MUNDY FILED: August 16, 2017
      I agree that in light of this Court’s recent decision in Commonwealth v. Muniz,
      ___ A.3d ___, 2017 WL 3173066 (Pa. July 19, 2017), the Commonwealth Court erred in
      rejecting Appellant’s argument that SORNA is an ex post facto law.1
      However, if I were
      writing on a blank slate, I would conclude that SORNA does not violate the Ex Post
      Facto Clauses of the Federal and Pennsylvania Constitutions.
      I have previously expressed my views in this area in Commonwealth v. Perez, 97
      A.3d 747 (Pa. Super. 2014). Therein, the Superior Court balanced the factors
      articulated under Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The panel
      concluded that SORNA’s requirement that an offender appear physically in person to
      regularly update his or her information was “an affirmative restraint,” weighing in favor of

      1
      I did not participate in Muniz, which was argued with Commonwealth v. Gilbert, 48
      MAP 2016, a case in which I participated on the Superior Court.
      2
      concluding SORNA was punitive, and therefore an ex post facto law. Perez, 97 A.3d at
      754. However, the court also concluded that the other six factors did not weigh in favor
      of concluding SORNA was punitive. See id. 754-58. Balancing these factors, Perez
      concluded that SORNA was not punitive, and therefore not an ex post facto law under
      the Federal Constitution.2
      Id. at 758-59.
      I continue to believe that Perez was correctly decided and struck the proper
      balance under controlling cases from the Supreme Court of the United States. I
      therefore disagree with Muniz’s conclusion that SORNA violates the Ex Post Facto
      Clause of the Federal Constitution. Even assuming that Muniz’s federal constitutional
      analysis was correct, its analysis should have properly ended there, since any claim
      under the Pennsylvania Constitution is moot. See generally Pap’s A.M. v. City of Erie,
      719 A.2d 273, 281 n.12 (Pa. 1998) (concluding that since a local ordinance violated the
      First Amendment of the Federal Constitution, there was no need to consider whether
      the ordinance also violated the Pennsylvania Constitution), rev’d, 529 U.S. 277 (2000).
      Since the Court decided to reach that argument, I agree with Justice Wecht that the Ex
      Post Facto Clause of the Pennsylvania Constitution does not provide higher protections
      than its federal counterpart. See Muniz, 2017 WL 3173066, at *26-33 (Wecht, J.,
      concurring).
      Although I disagree with Muniz’s conclusions, they are now the law of this
      Commonwealth. As such, they must be applied in a meaningful way. No sensible
      reading of Muniz would permit the Commonwealth Court’s contrary judgment to stand. I

      2
      The panel did not address Perez’s claim under the Pennsylvania Constitution, due to
      his failure to conduct an analysis pursuant to Commonwealth v. Edmunds, 586 A.2d
      887 (Pa. 1991) in his brief. See Perez, 97 A.3d at 759-60.
      3
      therefore join the Court’s order in this case, because it correctly applies Muniz and
      reverses the Commonwealth Court’s order in this regard.

    • #17873 Reply

      lovewillprevail

      Just so you know, there is a split between federal circuits regarding the constitutionality of residency restrictions. The 5th circuit ruled it was constitutional for a Texas municipality to banish registered people not on probation and not on parole from 99% of the city. The attorney very soon will be filing an appeal to the supreme court.

  • #17698 Reply

    DW

    Robin,

    If SCOTUS reverses the Sixth Circuit, does that mean that State’s like PA, AK etc. will have to defer their State’s Constitutional Rulings and re-register those who gained relief?

    • #17702 Reply

      Robin
      Keymaster

      Certainly not. If SCOTUS reverses the Sixth, it would be status quo for Michigan. It will have no effect in states like PA or AK. At least not insofar as their own state court decisions are concerned. However, the effect of a reversal would likely emboldened state legislatures throughout the country to enact even more onerous and burdensome statutes against registered citizens. However, if the high court does grant the petition, there will be a deluge of amicus briefs filed on both sides. Those that are opposed to a reversal will very likely cite to state supreme court decisions such as PA’s as supporting, persuasive reckoning in favor of allowing the Sixth Circuit opinion to stand. But I stand by my own legal reasoning in the belief that the Court will not grant cert UNLESS its intention is to reverse the Sixth Circuit. Otherwise, it affirms by default if it denies the petition, which is a whole lot easier. The Court is like any other branch of government. It only performs its duty when it absolutely has to….and, like the other branches, it’s always looking for a good reason to kick the ball.

      • #17707 Reply

        DW

        Thanks so much for that explanation. I must say you’ve convinced me. Results are better than a hoped-for outcome. I am now hoping SCOTUS will not hear the case and allow further favorable precedence to pile up.

        I am still at a loss as to how our highest court got it wrong the first time around.

        Thanks again.

  • #17665 Reply

    Tyrus Young

    The only advantage to having this heard before SCOTUS would be if they upheld the decision, thereby establishing a federal precedent rather then just for Pennsylvania. It will be vitally important to pound the recidivism statistics ad nauseum into the arguments as they have been used as the basis for supporting SORNA with the legal argument that EX POST FACTO doesn’t apply because the law is administrative, not punitive, for the purpose of protecting the community.

    What is often overlooked is Section 4 of the AWA which prohibits certain offenders from sponsoring anyone… spouse, parent, and so on. The AWA was instituted to protect minors, therefore application to any beneficiary over the age of 18 is not warranted. This provision of the AWA is definitely punitive… in no manner does separating a man and wife from being able to live in the same country achieving any degree of protection for the community. If an offender’s victim was NOT a minor, then the provision is not applicable…. a little discriminatory perhaps?

    It needs to be examined if the AWA has a severability clause.. without it, if any part of the law is deemed unconstitutional, then the Act has the same fate. I recommend that if the Supreme Court reviews this case that all parts of the AWA be subjected to review and not just the registration issue. It needs to be looked at, not just at the legal language of the Act itself, but the manner in which it is being applied… all sections of the Act. Even a cursory review of the application of Section 4 of the Act indicates that it is punitive and wholly unconstitutional.

    I don’t minimize the importance of the registration aspects of the Act. Due to work changes, I have now been registered in 5 different states. Trust me when I say that they are not all the same. Some are fairly supportive with offenders, while others are extremely punitive seeking to humiliate and badger everyone who is subjected to registration. After 20 years of this, with no issues of re-offending, or violating registration rules, it is ridiculous to see how many of those conducting the registration have little idea what they are really doing.

    I understand the argument regarding the community benefit of registration… but since too many of those doing the registration don’t understand the gravity of some crimes vs. others, how can they adequately advise the public? Being registered with local LEOs is one thing… dissemination of the information to the general public, who are generally ill informed, is disastrous. With one of the lowest recidivism rates, it is unrealistic, discriminatory and unconstitutional to continue this practice.

  • #17450 Reply

    Anthony

    The U.S. Supreme Court should deny review of the state appeal pertaining to the Sex Offender registration retroactively or extending the registry to prior convictions in which is punishment and not merely administrative as public servants claim. The prior ruling of the Sex Offender registry should never have been applied retroactively or to first time offenders period. The current penalty of a felony for not registering is not a new offense for a new charge because it reverts back to the original convictions of a sex offense. This is a blatant violation of Ex Post Facto and Bill of Attainder. Pure punishment in which does not protect society and is applied vindictively. Thousands of state plea bargains have been breached after the fact with this out lawry law. There will be another challenge in court to overturn prior convictions for not registering and those currently required to register retroactively in every state and federally.

    • #17452 Reply

      Anthony

      The appeal will be denied.

  • #17455 Reply

    Dave

    I guess District Attorney David Freed is not interested in the constitutional rights of the citizens!

  • #17424 Reply

    Darrel Hoffman

    Your appeal won’t succeed. If what I read here is any indication of the opinion of your state Supreme Court, those justices already included the US Constitution in their decision which does say that ex post facto laws are PROHIBITED!!!! Plus, with the way the US Supreme Court ruled against NC in their attempt to keep sex offenders off social media, I don’t see them overturning your Supreme Court’s decision. In fact, I see the death of this SORNA, which it should. Sex offender registries are nothing more than an added punishment of life-time probation after the fact, and it’s about time that the US Supreme Court recognize that fact and strike all of these laws down whether the hysterical public likes it or not. THAT IS OUR CONSTITUTION, AND WE EITHER ARE GOING TO FOLLOW IT OR DO AWAY WITH IT SO WE CAN CONTINUE AN ILLEGAL WITCH HUNT IN THE NAME OF “CHILD SAFETY”.

    • #17436 Reply

      George In Texas

      I’ve shifted my view a bit on this and now think the best course of action is to pray that SCOTUS does NOT grant cert in either this decision from the PA SC or the Snyder case. Robin is correct that most likely if the SCOTUS takes these cases it will be to overturn them — that’s something that we must not suffer at this point in time.

      Instead, IMO, we should focus our attention on the cases that have been defeated, or will meet defeat, at the lower levels and support their challenges up to the SCOTUS. The decisions from the 6th circuit (Snyder) as well as the PA SC can be used as material in the challenges. We need top level representation from here on out and select the best cases to throw our resources in with. Now is the time to strike — momentum is in our favor. For those, such as I, who believe in the power of prayer and positive thinking, the universal law of attraction or whatever you believe that is based in truth, now is the time to double down and concentrate on this time in history.

      We have a great opportunity it seems, let’s not waste it please!

  • #17344 Reply

    Lovecraft

    The link below is from another forum so Im not taking credit for finding it, but it has some priceless quotes from Freed. He does indeed use the word punishment and he also doesnt seem completely convinced the registry is doing anything.

    “You can look at that and say ‘people on the registry aren’t committing sex crimes,’” Cumberland County District Attorney David Freed said.

    “Would they be more likely to do so if we didn’t have a registry?” he said. “I can’t answer that. … Is it effective? That’s the question for all these punishments.”

    http://cumberlink.com/news/local/closer_look/digital_data/crime-review-a-look-at-the-effectiveness-of-sex-offender/article_a9923f58-9d65-5379-9670-eb08ad9d6620.html

  • #17340 Reply

    Caiya Wolfgang

    What about the fact that if someone took a plea agreement including 10 years on the registry, then they got switched to longer under SORNA.
    I’m not a “legal person,” but it seems to me that’s a breach of contract of some sort. They shouldn’t be able to go around switching the terms of the agreement after the fact.

  • #17088 Reply

    Lovecraft

    I believe this will be the proverbial straw that breaks the camels back in regards to the scotus taking the snyder case. Granted we are talking state vs fed, but the Pennsylvania decision has some federal undertones with awa. I really think Kennedy wants to correct what was misunderstood (or ignored) during the smith v doe case, which he more or less referenced in the Packingham case. I serioisly doubt he would have gone that far off topic in the Packingham opinion unless there was good reason to do so. I realize that both the Michigan federal district and the Pennsylvania supreme court have ruled in favor of registrants and normally the scotus looks for a difference of opinion, but based on what I listed above this will be an exception to the rule.

    • #17107 Reply

      Robin
      Keymaster

      Our attorneys are of the opinion that if SCOTUS grants the Snyder petition it will be for the purpose of reversing, not sustaining the Sixth Circuit’s decision. Otherwise, there is no good reason for the Court to disturb the outcome. Our attorneys could be wrong, of course. But it does make fairy good, practical sense. With regard to the PA case, it has not been the practice of the high Court to settle disputes between the Circuits and state supreme courts. So I don’t see that as a matter ripe for much contemplation. SCOTUS prefers to resolve clear questions of constitutional law that are at dispute or are otherwise in conflict where either two or more Circuits reach different outcomes or where there are a handful of state supreme courts on both sides of an unresolved constitutional question. From the Court’s perspective, there is no such dichotomy between a single Circuit and a single state supreme court.

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