PARSOL’s Analysis of Commonwealth v. Torsilieri
Pennsylvania Assc. for Rational Sexual Offense Laws . . . Here in Pennsylvania (PA), we have been given hope for significant improvement, possibly even abolishment, of SORNA. Judge Allison Bell Royer of Chester County has written an eloquent opinion on the June 2021 evidentiary hearing involving this case.
This analysis summarizes all the key points; however, due to the importance, we highlight how the U.S. Supreme Court decisions in Alleyne and Apprendi were effectively used in this case in Pennsylvania.
Please note that PARSOL does not give legal advice. For those who live in Chester County, we recommend that you follow up with your attorney and ask how this decision affects the status of your registration.
The key points of the court’s opinion have been discussed by ACSOL and on episode 236 of the Registry Matters podcast, where PARSOL’s executive director was a guest.
The three key points are as follows:
First, the main argument in this case is that SORNA violates Pennsylvania’s Constitution, Article I, Section 1, Right to Reputation, which states, “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness” (emphasis added). The PA General Assembly made a legislative finding that “Sexual offenders pose a high risk of committing additional sexual offenses, and protection of the public from this type of offender is a paramount governmental interest.” The defense argued that the legislative finding is not universally true. As a result, the court found, “. . . irrebuttable presumption unduly stigmatizes persons convicted of committing sexual offenses, a class of crimes that covers a wide spectrum of conduct, and does so without any consideration of individual characteristics and circumstances” Opinion at 3. Studies have consistently shown that persons on the registry have a low rate of reoffending.
We stress the term “indefeasible” because, according to Black’s Law Dictionary, it means “(of a claim or right) not vulnerable to being defeated, revoked, or lost.” Indefeasible is distinct from “inalienable” which means “not transferable or assignable.” An inalienable right can be forfeited through due process, but an indefeasible right, according to its definition, cannot under any circumstance be taken away by the government. As an afterthought, the right to an expungement is the enforcement of the constitutional right to reputation in the context of a criminal case after the sentence is completed.
At the heart of the legal and advocacy matter is the stigma of “high risk,” which ruins the chances for registrants to “. . . successfully rehabilitate under Pennsylvania law, rehabilitation being another indisputable aim of penal legislation and an equally compelling interest and policy of the Commonwealth” Fross. v. County of Allegheny, 20 A.3d 1993 (Pa. 2011), aff’d, 438 Fed. Appx. 99 (3rd Cir. Pa. 2011).
Dr. Elizabeth Letourneau, Ph.D. explained many studies have demonstrated that the registration and notification elements of SORNA do not considerably decrease recidivism rates. In some states, non-sexual recidivism rates have increased because the stigma has encumbered a registrant’s efforts to a successful reentry. Loss of housing, job, friends, family, and social supports are needed for a successful reintegration into society. Any state that seeks successful reentry or promotes public safety must reevaluate their versions of SORNA and other restrictive laws, because the end results of these statutes contradict said goals.
Second, after Judge Bell Royer’s examination of five of the seven Mendoza-Martinez factors, she concluded that SORNA constitutes criminal punishment. All five factors were found to weigh in favor of the punitiveness of the statute. The five factors reviewed were (1) whether the statute imposes an affirmative disability or restraint; (2) whether the resulting sanction or burden has historically been regarded as punishment; (3)) whether the statute promotes retribution and deterrence, traditional aims of punishment; (4) whether the statute is rationally connected to an alternative purpose other than punishment; and (5) whether the statutory sanction or burden appears excessive in relation to the alternative. More importantly, after the judge’s review of (2), sanction as punishment, she stated in a footnote “. . . that the provisions of SORNA are located in the [PA] Crimes Code and there are serious criminal penalties associated with one’s failure to comply. These facts support the conclusion that the second factor weighs in favor of a determination that SORNA is punitive” Opinion at 20, FN 8.
Third, because SORNA is punitive, “. . . it violates the cases of Apprendi and Alleyne; resulting in a criminal sentence that exceeds the statutory maximums; offends Federal and State proscriptions against cruel and unusual punishment; and breaches the separation of powers doctrine” Opinion at 29, Court Order. Apprendi noted that a state’s provisions are over and above what the regular sentence would be for a particular crime. Alleyne asserted that the minimum amount of punishment must be made known to the defendant, and the finder-of-fact must determine whether these circumstances apply to the defendant.
Our Conclusion
Apprendi and Alleyne tie in numerous factors of constitutional rights afforded to every Pennsylvania citizen. Of particular importance is the breach of the separation of powers doctrine. Apprendi and Alleyne are judicial sentencing issues. According to the rulings in these two cases, sentencing issues should be left to the sole discretion of the court because no two cases are the same. As the court noted, “[F]acts can be murky and most often there are no independent eyewitnesses” Opinion at 14.
Equally important in Judge Bell Royer’s opinion is the Court Order (Opinion at 29). The judge said, “SORNA is unconstitutional both facially and as applied” to Mr. Torsilieri for all the above reasons. “Facially” is important to note because “facially unconstitutional” means that there is no set of circumstances by which it could be constitutional.
The PA Supreme Court had remanded this case back to the Chester County Court of Common Pleas for a full development of the record. As such, it will most likely be sent back up to the Supreme Court for their final decision. We do not know when a decision will be made, but we will remain ever vigilant for a result in our favor.
We hope this case or at least the arguable points behind it are transferable among the states. We are highly grateful to Mr. Torsilieri’s defense team and the experts who testified for their dedication and commitment both to rational sexual offense laws and seeing that the rights and dignity of registrants in Pennsylvania are protected.
Hopeful yet cautious. When there were only a few of us in the early 1990s, we got no sympathy. Now that we are reaching close to one million nationwide registrants, we are beginning to get a voice.
Please please please can somebody please file this argument in Tennessee!! Thank you for all your hard work! I’m 38 and do not want to be on this for the rest of my life. It’s limiting me to living in a hotel and so many other things.
I am in TN. We would have to find an attorney willing to take on such a case. Would all registrants be able and willing to share the cost of an attorney with the right expertise and experience in this specific area of law?
Ya its not like you can afford a lawyer. It is a perfect destruction machine.
This is truly awesome news! I sincerely hope it stands and spreads like a wildfire across the country. Unfortunately, so much damage has occurred due to laws based on erroneous data, and by decisions made by SCOTUS citing outright lies spoken by supposed experts on the subject that it may very well take many more years before SORNA is overturned.
does a judicial judgment of conviction modified by the legislature become a legislative judgment of conviction that has no continuing validity? how does that bell get unrung?
Well Arkansas just touted that they went visiting 220 sex offenders, just so they knew they being checked up on.
Of the 270, there were 220 persons who were in compliance and the other 50 were either not registered , or had firearms or drugs.
This Prosecuting attorney used almost 20 other departments to run this operation.
I just wanted to cry, yes those 50 needed to be in compliance, but what of those 220 who were visited at their homes and with probably family around??
What about them???
Those 220 have spent their time, and doing right.
I am glad to see some reform in some states
And just if you want to proof it
Benton County Arkansas.
Yeah but Pa is about the worst state to get anything done. They dont do the right things here at all. I will be very surprised if this all works out. This SORNA is a fing nightmare for people who have already spent numerous years in prison going through sex offender classes being humiliated just because of the crime and then for them to come up with this idea of plastering a person’s face on a registry is like a doubled Jeopardy of a continuous punishment. Where is the LIBERTY, the justice for all. I dont see it if someone has a sex offense against them. If they’re serving their time in prison and completed the crime sentence that should be the end of this bull crap. NO OTHER crimes continue to persecute any other person on the face of this Earth so why is this any different. It’s just sickening this is being allowed to continue.
Since there is NO time frame in which PA SCOTUS must decide….This is the Slippery Slope as the Court can wait years to decide…they are not bound by legislative authority….
Well…at least…it is a step forward…forward progression is good!
In my case, convicted in April 2012, predates PA’s enactment of SORNA in Oct 2012….so technically I could move to PA and fight it…but that would be expensive!
I think it was the day after reading about this ruling on NARSOL that the UNC School of Government published a recidivism report that included the US Justice Department’s Roger Przybylski, Recidivism of Adult Sexual Offenders (July 2015). Like most of us these things are just too close to our hearts, they take me on an emotional roller coaster ride that renders a crushed soul and clouded mind.
The system is rigged. Yea, I know, no surprise there. But when a sex offender is charged with one of the draconian laws that require registration, that is in no way a new “sex” charge. Yet, it in the enforcement world it’s recorded as such. I urge everyone to read Mr. Przbylski’s 2015 report.
They use the same tactics in the context of failure to register trial. Judges often error by permitting sexualized questions to potential jury members during voir and jury selection process. As you correctly state, Registration violation cases are NOT sexual assault cases, yet judges will insist picking unbiased is a necessity in a case purely about paperwork ( missing).
Upon the unreasonable sexualized colloquium between judges AND potentials with questions like, ” Have any of you in the the jury panel been a victim of sexually assault?” is grounds for automatic strike. At which time the judge ” dismisses ” the admitted victim from the group of potentials. The victim exits the courtroom having been rejected. Thus leaving those remaining potentials with an ax to grind. I’VE WITNESSED IT FIRST HAND IN 2011!
Today I take a much different approach in Voir by insisting such questions unacceptable to defense. DAs generally will not object to former victims, or family member thereof, being on an FTR jury. Thus each side can agree with NOT asking that brand of questions in FTR voir process.
Automatic ( as if by machine) disqualification of a former victim as a jury member is every bit as socially destructive as automatically disqualifying a sex offender for a job.
Maryland has some weird rules and decisions that let some people off the registry instantly.
Because this is an unconstitutional law affecting hundreds of thousands of families, the Federal supreme court needs to take another very deep look into this matter. So it doesn’t continue to drag on for another 50 years, as each state decides what it will or will not accept as it’s terms and conditions.
I as an united states’citizen am now retired and would like to travel yet I have to worry about each state I travel through.
The hindrance of said travel is of an unconstitutional matter in itself.
This is really great progress. For so long the results of failing to register have been “minimized” by almost every municipality in our U.S.A. I was speaking with a police officer the other day and mentioned how burdensome and absolutely irrational the requirements and extensions to those considered in “failure to register” status are Unconstitutional. The officer laughed when I referenced the fact that if this law continues then eventually they may have those who commit theft register due to the “real fact” that most who commit petty theft usually reoffend. It’s not a laughing matter I said, it’s what can happen if the system continues on the way it is going. The officer just smiled and said that would never happen.
I think many do not comprehend how much SORNA has paved the path for both state and local governments to deprive a United States citizen other Civil Rights concerning non related issues to SORNA. Civil Rights are rights that should never be deprived a citizen of the United States of America.
One individual that stood for his rights and was also exonerated in Illinois was Kitterman. His case shows how truly deep and scrupulous the corruption goes in Illinois sex offender registration. Although after exoneration his claim of the conspiracy was dismissed between the State Police and local jurisdictions; the fact is that it is truth. A conspiracy to permanently keep offenders on registry for life in Illinois exists. That is why unless convicted as a juvenile there is no ability to appeal for removal without fighting and denying a crime ever occurred (which makes a person ask why would a responsible individual that made a mistake want to entirely deny their wrong? Why not just afford them the opportunity to move past their mistake?)
The question’s I have after removal of this registry happens, will it matter to me or my family? We can’t get the years back, the money we’ve spent and lost due to my family member not being able to work in the job he is qualified for because of his “Registration” hampering companies letting him get past the interview process? Right now he’d have made $600k+ if they wouldn’t have extended his time on the list in a basic job for his degree. Will he be compensated even a portion. We have endured rough times like so many.
The worst part of it all, even with progress it always just takes one horrible situation that makes national attention to cause the registry to be the focus of harder punishments. I only pray for all our families and our situations that this system of punishment doesn’t just end in Pennsylvania but throughout our country.
Thank you to those that continue to challenge and take on this horrible design.
The thing we will have to remember is that Life Is Not Fair. Fair means, One side got Exactly what they wanted, and in a way the other side can’t complain about. Period. There is No Such Thing as Fair!
Excellent explanation by the Author. I particularly respect the difference between inalienable right versus indefeasable right. An inalienable right can be forfeited via due process by the congenial use the Standard waiver of civil right. The indefeasable right suffers no such threat because those rights natural rights. The right to defend yourself for example. The right to an attorney however inalienable through the constitution is not a natural right. The right to council itself was established by SCOTUS and not the constitution. More than once I’ve disavowed myself of Council (by waiver) in the context of felony FTR indictment. The counties judges dislike it, and makes them uncomfortable with me raising the entire record from the sex case. Because state opens the door by raising the judgment ( touchstone) in FTR context the whole of the formal record comes into play. And when that formal record contains no signed standard waiver of civil right nor mention of the obligation to register it becomes exculpatory fodder for any jury. Essentially these facts make the case not only longer but much harder to prove without a doubt. Or as the judge and author says it…irrebutable presumption presumes too much.
Well Done. Robert Gordon
This is a great case to advance the abolishment of scarlet letter laws. I just have two questions: 1) whybis it so hard to find the actual legal citation for this case? And 2) who were all of the expert witnesses thatbtestified for the defense?
It would be great to get the same experts on more cases, but I cannot find more then the one mentioned here.
To answer your two questions: 1) this case is from the Chester County Court of Common Pleas which the common pleas courts do not generally publish their opinions, and 2) the experts are Dr. Elizabeth J. Letourneau, Ph.D.; Dr. James J. Prescott, J.D., Ph.D.; and Dr. R. Karl Hanson, Ph.D.
I have been keeping a close eye on the case in Torsilieri and give a special thanks to his legal team for defending our Constitutional rights. Not to get into details of my own case, but I have an allowance of appeal pending before the Pennsylvania Supreme Court challenging the Constitutionality of SORNA II inter alia, and both the trial court and Superior court issued opinions that were a miscarriage of justice, especially when I raise very legitimate points in a contentious area of law. Similar arguments in Torsilieri, have been recognized by the Pennsylvania Supreme Court in Commonwealth v. Muniz, such as public shaming and also finding it punitive. It that case our Court held that it violated the ex post facto clauses of both the federal and state Constitutions.
Yet, the legislatiors reenacted the same punitive laws regardless of our high courts opinions. I have written the legal team of Torsilieri, in hopes that they would want to take my case as I have suffered greatly for years and have so much evidence of public shaming as I, myself has experienced it due to the registration requirements and wrongful classification under the law.
I pray that SCOTUS will take this case soon , they are ready for the powers of separation argument and to chip away at the administrative state , and destroy the registry