An encouraging win in Pennsylvania

By Larry . . . T.S. v. Pennsylvania State Police was just decided by the Commonwealth Court of Pennsylvania. The Commonwealth Court is the intermediate court of appeals which leaves open the door for the state to seek review in the Pennsylvania Supreme Court.

This case has the potential to remove a significant number of people from the state’s sex offender registry. Petitioner T.S. sought mandamus and declaratory relief against the Pennsylvania State Police (PSP), challenging as unconstitutional subchapter I of the most recent version of the sexual offender registration scheme. T.S. was convicted and sentenced for his offenses before any sexual offender registration scheme existed in the state. He argued that the provisions of subchapter I of Act 29 governing his lifetime registration are punitive as applied to him in violation of the ex post facto clauses of the United States and Pennsylvania Constitutions.

SORNA, the fourth iteration of sex offender registration, which became operational in 2012, laid the foundation for this challenge. Pennsylvania enacted SORNA to comply with the federal Adam Walsh Act (AWA). SORNA classified offenders and offenses into three tiers, with each corresponding to an offender’s duration of registration and frequency of required verification, anywhere from quarterly to annually. The Pennsylvania Supreme Court struck down SORNA as unconstitutional in 2017. See Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, __ U.S. __, 136 S. Ct. 925 (2019). In Muniz, the petitioner was convicted and sentenced for his offense in 2007, when Megan’s Law III was in place. He absconded and at the time of his capture in 2014, SORNA dictated his registration requirements. His triggering offense carried a 10-year registration requirement under Megan’s Law III but a lifetime registration under SORNA. He challenged the retroactive application of SORNA’s provisions to him as ex post facto. The Pennsylvania Supreme Court agreed, concluding that the increased registration period and the other registration requirements of SORNA, including quarterly in-person registration, in-person verification of registration information, and the dissemination of personal information online were punitive provisions.

In response to Muniz, the General Assembly enacted Act 29. The new law divided SORNA into two subchapters. Subchapter H is based on the original SORNA statute and is applicable to offenders who committed offenses after the December 20, 2012, effective date of SORNA; Subchapter I is applicable to offenders who committed offenses prior to the effective date of SORNA and to whom the Muniz decision directly applied. However, the Supreme Court did not strike down the mere registration of such offenders retroactively, analyzing instead the provisions governing registration, which included an online database with information about offenders’ criminal convictions and requirements for periodic updates by offenders, and determined these provisions were non-punitive.

PSP argued that subchapter I of Act 29 is not a criminal punishment but “a civil registration system,” and neither PSP nor the courts can alter the registration obligations. None of the prior case law in Pennsylvania has addressed the application of subchapter I of Act 29 in the wake of Muniz to offenders who committed offenses prior to the enactment of any sexual offender registration scheme. Pursuant to subchapter I of Act 29, T.S. argued that he must: (1) register for life; (2) notify PSP within three business days of a change in residency or employment; (3) appear annually to verify residence and be photographed; (4) be subject to criminal sanction if he fails to verify his residence or notify PSP of changes; and (5) be subject to display on the internet for life through the internet dissemination provision.

The Supreme Court in Muniz emphasized the multiple times per year and over a lifetime that an offender was required to appear in person under SORNA; it also more generally stated that it found “. . . the in-person reporting requirements, for both verification and changes to an offender’s registration, to be a direct restraint upon liberty” and that this factor “. . . weighs in favor of finding SORNA’s effect to be punitive.” See Commonwealth v. Muniz, 164 A.3d at 1211. In Muniz, the Supreme Court stated, “The information SORNA allows to be released over the internet goes beyond publicly accessible conviction data,” to include addresses of residence and employment, physical description, and vehicle information. Id. at 1215-16.

Despite the General Assembly’s intent to address the concerns of the Supreme Court in Muniz through subchapter I of Act 29, T.S. asserted that this factor and the Mendoza-Martinez factors on the whole weigh in favor of finding subchapter I of Act 29 punitive. He emphasized that at the time of commission of his offenses and convictions, he could not have anticipated that his conduct would subject him to the sanctions imposed by Act 29. The Court agreed and held that Act 29 cannot be applied to T.S. because it violates the ex post facto clause. It remains to be seen if the state will seek further review to the Pennsylvania Supreme Court.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #72598 Reply
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      d

      Any time they have to admit it is punishment is going to help us in the long run!

    • #72604 Reply
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      S

      Will this affect other offenders residing in different states? I’ve already spent a lifetime fortune in legal fees abs cannot afford to contest my lifetime registered. This new lifetime requirement came up after I was released from all legal requirements before moving to this state.

    • #72612 Reply
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      Annon

      This is a great case and is another crack in the dam so to speak. The general reaction of the public, employment, even the prosepects of friends and romantic interests all gets altered and marred by a presence on the registry.
      It is no longer simply arguable as a civil requirement. It is punitive and in fact has been stated as “the least an offender deserves” by most in authority positions. The “its not punishment” argument doesn’t hold up anymore.

    • #72609 Reply
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      Perry

      I agree with ‘d’, in that this should help out in the overall long run of things. I also hope, ‘S’, that this will help you too. I cannot say for certain as to how it may or may not help me personally, yet, I do have a sense of renewed hope that there ‘May’, be Some Relief insofar as Conditions go. The General Assembly will for sure, try to figure out something else. They will not let go of this that easily. Believe that! as I see it; here’s what needs to happen, in order for such re-writing of the Laws should and could go: First; Politicians MUST become Transparent in what they Vote on and how they Vote WHEN, they do. Second; they MUST be held accountable to the Families of Registered Citizens inasmuch as they are to everyone else, ESPECIALLY when they Vote on Legislation that is ‘Directly Socially Assaultive’, on Us and Our Family Members. What do I mean by ‘Directly Socially Assaultive’? Simply this: Their Voting on things that continue to or much more; cause Us to be Socially Disadvantaged, Unemployable, Vulnerable to Vigilantes, and Endangering ALL Our Family Members related to Us by Irresponsible People ‘Just Because’ they’re related to Us. And by the way; The Internet MUST NOT, be used anymore by the General Public as a means of ‘Tracking’ Us for the purpose of Targeting Us. The state Police also; MUST be held accountable if and when one or more of their Officers happens to ‘let slip’, information about Us to someone who IS NOT, Law Enforcement. We know that does, AND CAN happen! The same should also apply to The General Assembly itself, AND Judges, D.A’s and A.D.A.’s, and ALL Court Officials! Because anybody, can tell anyone else, anything about ANY of Us, at any time, anyway now!
      Done.

    • #72617 Reply
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      Svejk

      Awesome news! I hope they don’t appeal, but if they do, then I pray the subordinate court’s ruling is upheld!
      Svejk

    • #72619 Reply
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      Tim in WI

      Good explanation Larry

      The registries are the people’s property for which the law demands maintenance. In order to keep up the database there are hired agents and indentured servants. Essentially registrants are slaves to the property against there will and liberty. The idea was new only in that it involves an electronic database and internet broadcast, but there is nothing new about indentured servitude, nor the concept of formal plantation, and according to the 13th is only permitted under conditions of punishment as the result from a duly had felony conviction. This court relief here relied upon the precedent set in the DOE 03 cases and applied the Kennedy Mendoza\ Martinez non dispositive analysis and found Sub1 incongruous with the balance struck via ratification of Article 1 sec. 9,10. Clearly the intent of regime no longer justifies the means. The presumption of congressional deference no longer standing a basic test of intermediate scrutiny. But truthfully it never really did according to the minority in DOE.

      What irks me most from the DOE03 opinion is the farce of striking a new balance was achieved by first promoting online personal attack, and second voiding the common & accepted understanding of what constitutes plain punishment, slavery by ignoring electronic domains as property. Those who’d argue “slavery” a misinterpretation vastly underestimate the effect of the database machine’s INSATIABLE need for data- burden. Free men are paid or otherwise compensated to maintain machine property precisely because of the burden in itself. This is precisely how Mr. Zuckerberg makes his Facebook property viable. He capitalizes on users willingness to provide free input and users receive compensation via the platforms bells, whistles etc. capability. Folks find something of value in an equitable relationship between FB & Self- symbiosis, however parasitic or codependent the relationship may be in realty. 5B $USD ain’t no chump change! Has our government punished FB? or regulated its use of database, by regulating the firms gleaning it for profitable data at the expense of citizen privacy(sovereignty rights)? Exploitation on mass.
      Ironically, FB TOS immunizations from offender input did the registrant a favor although I acknowledge many registrants complain of it bitterly. Obviously there was something benevolent in public safety, especially when it comes to protecting the people from government agencies where appropriate.

      Until the people come to terms with the true nature of the electronic database infrastructure individual liberty and traditional notions of sovereignty will continue to be eviscerated by its uses. We can look forward to facial recognition.

    • #72653 Reply
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      S

      Ok I’m in my mid 60s. Will I ever see relief?

    • #72699 Reply
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      Jonathan

      I’m trying to follow this but im confused. Does this apply to ALL non SVP offenders or just the ones put on the list after they completed their old legal obligations?

    • #72762 Reply
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      J

      Jonathan, the ruling in this case only applies to T.S. However, it can be used in cases where the non-SVP registrant’s crime was committed when there was no registry.

    • #72786 Reply
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      WC_TN

      Perry, since you posted that comment a registered citizen in Omaha, NE was murdered in cold blood by a vigilante who used the state’s public S.O.R. web site to identify him and tell exactly where he lives. Once a vigilante has your street address, it’s just a matter of plugging that address into Google Maps selecting “Get directions”, and entering your own address as the starting point for the route. With Google Street View, the vigilante is provided with a nice, clear photo of the front of your house. Thanks to how Google Maps interfaces with smartphones, the phone will give you turn-by-turn voice direction to navigate your way to the address.

      This murder just proved Judge Matsch right when he ruled the Colorado S.O.R. unconstitutional on 8th Amendment grounds due to the fact it opens registrants and their families up to violent vigilantism at the hands of the public. This case out of Colorado has been languishing for at least two years now at the 10th Circuit. The arguments have been made for quite some time now, but no ruling has been issued. I honestly don’t know what on Earth the court is waiting for.

      Way too much personal information is compelled from persons forced to register and disseminated in an unmonitored, uncontrolled, unlimited manner to the entirety of the WORLD’S INTERNET-CAPABLE POPULATION, and in all honesty outstrips the stated purpose of informing those who have a “need to know”. Like Larry, I defy the pro-registry crowd to show me anywhere in the U.S. Constitution there is an enumerated right citizens have to know who is living around them and what their personal backgrounds are. This is an INVENTED RIGHT “victim” groups screamed bloody murder for that never should have been given the time of day by either court or legislator. Politicians and elected judges are gutless cowards who will cow-tow to the loudest, persistent voices in the name of protecting position and re-electability. They have no backbone to stand up against the tyranny of the majority, which is a DUTY AND OBLIGATION of our government.

      Any law that puts life, limb, and property of those who have served their time and paid the due penalty for their crimes should not be allowed to stand for an instant.

    • #72779 Reply
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      Jonathan

      Darn…got excited. Lol. I’m only 2 years into a 25 year registration

    • #73314 Reply
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      Terry Brunson

      The T.S. V PSP case is only a win for those that pre-date the Megan’s Law -1 era

      If you have a situation like that – you can do an applied challenge – win and if there is a stay wait for the higher court to rule on T.S. v. PSP. If they uphold the T.S. decision of the lower appeals court. Them T.S. v. PSP case becomes a precedent case for an applied challenge if you have a registration that pre-dates Megan’s law -1.

      If you don’t file in court you may be removed by the PSP when they get around to it.

      There is also the Steinman V. Blocker, No. 255 MD 2018 case that is for those whose offense goes back to Megan’s Law -1 and you can show that ACT 10 and ACT 29 is greater in punishment than the Megan’s Law -1 punishment.

      This is also an applied challenge case. It will only affect those in this area.
      This case was won in November 15, 2019

      Cases like these are Not reported. You have to be in the court to see their win. On a docket search or know how to see the daily court docket opinions.

    • #75791 Reply
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      Terry Brunson

      The case 339 MD 2018 in Pa. Commonwealth Court is back on the docket for summary Relief under Rule 1532(b)

      The PSP has filed their opposition brief Monday 24, 2020

      I will file a reply brief within 14 days then the court will have 45 days to decide who is making the best law fight and rule in a decision. The facts are in and the fight is set for me. I move forward in faith and dependence on fate.

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