PA Supreme Court sends Commonwealth v. Torsilieri back to local court

Originally published at parsol.org; reprinted in full with permission.

By Josiah . . . The PA Supreme Court (SCOPA) filed their opinions on Com. v. George Torsilieri on June 16 regarding the constitutionality of PA’s Sex Offender Registration and Notification Act (SORNA) Revised Subchapter H. Mr. Torsilieri and his attorneys argued that SORNA is based on outdated legislative findings and presented current scientific evidence refuting the accuracy of those findings. The majority opinion was written by Justice Baer with Justices Todd, Dougherty, and Wecht joining in, sending the case back to the Chester County Court of Common Pleas for a thorough evidentiary hearing. Justice Donohue dissented, affirming the trial court’s ruling that Subchapter H legislative findings present “an unconstitutional irrebuttable presumption that implicates the constitutional right to reputation.” Justice Mundy wrote a separate dissenting opinion, which Chief Justice Saylor joined, holding that the scientific evidence presented by Mr. Torsilieri did not demonstrate that all those on the sex offense registry are unlikely to reoffend. Further, Mundy and Saylor pronounced the evidence presented did not support rendering SORNA unconstitutional.

One of the legislative findings that is being challenged is that those who have been convicted of sexually offending “pose a high risk of committing additional sex offenses,” and “protection of the public from this type of offender is a paramount governmental interest.” In other words, recidivism rates are high, thus legislators are duty bound to protect the public from this population. Torsilieri primarily argued that Subchapter H violates PA’s Constitutional Right to Reputation Clause because of the presumption that EVERYONE who commits a sexual offense is at high risk of re-offending. Torsilieri’s argument demonstrated that the notion of high recidivism is in stark contrast to decades of empirical research that clearly demonstrates otherwise. Further, Torsilieri argued that SORNA’s reach is over-inclusive as it includes individuals who have committed non-sexual offenses (i.e., unlawful restraint, false imprisonment, interference with custody of children, and kidnapping). Torsilieri also questioned the effectiveness of the registry to reduce recidivism and increase public safety. To support these challenges, three affidavits from nationally respected experts were filed at the post-sentencing hearing.

The Commonwealth neglected to bring any counter expert testimony at the trial court level. Instead, they continued to rely on the previous legislative finding that all those convicted of sexual offenses pose a high risk of reoffending. In violation of the Court’s rule of procedure at the SCOPA arguments, the Attorney General (AG) submitted a single study in the Commonwealth’s appellate brief, which called in to question the expert testimonies presented by Mr. Torsilieri’s attorneys. There are an overwhelming number of empirical studies that indicate sexual offense recidivism rates are lower than all crimes with the exception of murder.

Additionally, the Commonwealth and AG believe that the “courts are not the proper forum for scientists to debate controversies regarding sex offenders and are ill equipped to determine scientific truth,” and should automatically refer to the General Assembly’s findings where there is no scientific consensus. In other words, the Commonwealth and AG believe the courts have no place overruling the General Assembly’s interpretation of scientific findings. Citing Commonwealth v. Hale, Justice Baer countered that the Court does indeed have the power to overrule legislative findings when constitutional rights are in jeopardy. That is to say, if you are going to violate someone’s rights, then you better have a solid foundation for doing so. SCOPA is demanding to see current empirical evidence from the General Assembly.

Torsilieri presented persuasive evidence at the trial court. However, SCOPA believes the trial court could have maybe been persuaded to rule in favor of the Commonwealth had they presented their own evidence. The opinion challenges the Commonwealth to provide opposing science to that presented by Torsilieri and further challenges Mr. Torsilieri to provide additional convincing evidence.

The current legislative findings construct SORNA as a collateral consequence and therefore constitutional. Should SCOPA’s next opinion rule in favor of Mr. Torsilieri, then the General Assembly’s argument that SORNA is constitutional based on the collateral consequence construct will fall. Essentially, the General Assembly will not be able to use these findings in the future, thus forcing them to acknowledge that SORNA is punitive and is in violation of numerous PA and U.S. Constitutional rights.

PARSOL sees this opinion and the upcoming trial court evidentiary hearing as an important battle ground for moving toward rational sex offense laws that will truly be safe and just for all. This is an opportunity to establish policy and law that are constitutionally sound and that actually promote public safety and prevent sexual abuse.

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    • #73658 Reply
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      Perry

      I’m going to be paying strict attention to this one. It may help me someday down the road…If all goes well. As I see it now, The Current Legislative Assembly is as Corrupt as any other set of Elected Entities. Let us all remember too: This Is A Presidential Election Year, and you know Who’s At The Top of All This Corruption! I recall certain Allegations regarding this man before the Last Election, and he skated through, around, above and below ALL of them…and Still Got Elected! So you cannot tell me that Money wasn’t involved in paying off a lot of people, and by the way, it works for him because of Who He Always Has Been And Still Is!
      I need not mention names.
      Done.

    • #73672 Reply
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      Mike

      Best argument I’ve heard in a long time. Very rejuvenating.
      Lets all put our hands together for this one.
      BTW, It’s all wording. Everyone knows what’s going on.
      Let’s not lie to ourselves.

    • #73690 Reply
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      Tim in WI

      Again we see the same argument that SORNA is in effect punitive, and based upon an assumption of high recidivism. State lays claim the legitimacy as civil collateral claim per safety concerns. IMO this an untenable argument as no truly dispositive fact can be made from it in resolution.

      While no man can reasonably dispute a people’s right to maintain a database of duly convicted persons, one may reasonably dispute the plain human indenture in the promulgation of it’s maintenance. Free men are paid to maintain machines.
      That this particular machine is a database matters not as it is still a property from which you may not extricate yourself from the duty to maintain the insatiable appetite for data. The machine property is being used to work anti-liberty because that is its true underlying intent of plain indenture as per the 13th. NGOs are also using the database infrastructure to impose their will upon the people.

    • #73887 Reply
      King Alexander
      King Alexander

      This is a very interesting development. I look forward to the record made on remand. Below* is the text of Louisiana’s supposed legislative “findings and purpose” in the opening section of its statutory scheme for the “registration of sex offenders, sexually violent predators, and child predators,” La. R.S. 15:540. The language, no doubt supplied by the Louisiana Attorney General with the backing of the Louisiana District Attorneys Association and the Louisiana Sheriffs Association, claims that the legislature “finds … high [recidivism] risk [and] paramount governmental interest …” The legislature also declares a “reduced expectation of privacy” in persons convicted, and attempts to help itself to the lowest standard of judicial review by declaring the governmental interest “paramount” (i.e., most compelling) and claiming that the statutes need only be “rationally related” to the claimed goals of protecting minors and the public. None of that is actually the legislature’s call– it is for the judiciary. The antidote to all of this is a well-made record of the true facts, and in Louisiana, federal litigation before a life-tenured Article III judge rather than the elected state judiciary.

      King Alexander

      *”CHAPTER 3-B. REGISTRATION OF SEX OFFENDERS, SEXUALLY VIOLENT PREDATORS, AND CHILD PREDATORS
      [Title 15] §540. Findings; purpose

      A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest. The legislature further finds that local law enforcement officers’ efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders, sexually violent predators, and child predators who live within the agency’s jurisdiction, and the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Restrictive confidentiality and liability laws governing the release of information about sex offenders, sexually violent predators, and child predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense or a crime against a victim who is a minor have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government. Release of information about sex offenders, sexually violent predators, and child predators to public agencies, and under limited circumstances to the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.

      B. Therefore, this state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by requiring sex offenders, sexually violent predators, and child predators to register with state and local law enforcement agencies and to require the exchange of relevant information about sex offenders, sexually violent predators, and child predators among state, local, and federal public agencies and officials and to authorize the release of necessary and relevant information about sex offenders, sexually violent predators, and child predators to members of the general public as provided in this Chapter.

      Acts 1992, No. 388, §1, eff. June 18, 1992; Acts 1997, No. 1147, §1, eff. July 14, 1997.”

    • #74998 Reply
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      Jeff

      What they completely missing is the fact those of us who were Convicted and sentenced in Court, either before Megans law or those with 10 year registration requirements. Those all have had their due process violated by having to register for life. Its called Double Jeopardy, once sentenced, you cannot resentence someone for the crime they already been charged and sentenced.

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