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PA: Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state’s sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. Full Article

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  1. Robert

    Another nail in the coffin for the 2006 AWA!

    State Supreme Courts in recent years that have held that the retroactive application of (SORNA) sex offender registration and notification laws violate their respective State Constitutions:

    Doe v. State, 189 P.3d 999 (Alaska 2008)
    Wallace v. State, 905 N.E.2d 371 (Ind. 2009)
    Maine v. Letalien, 985 A.2d 4 (Me. 2009)
    State v. Williams, 952 N.E.2d 1108 (Ohio 2011)
    Department of Public Safety and Correctional Services v. Doe (MA March 2013)
    Starkey v. Department of Corrections (OK June 25, 2013)
    Commonwealth of Pennsylvania v. Jose M. Munz (PA July 19, 2017)

    • AJ

      These seven cases are a mixture of compliant (OH, OK, PA) and non-compliant (AK, IN, ME, MA) States, so that further undercuts any AG arguing it’s only from States that are “anti-SORNA.” It would be nice to have some favorable rulings from further outside the NE U.S. Regardless, it adds strength to any suit others may bring elsewhere! The word about the emperor’s clothes is spreading….

      • Robert

        The AWA is becoming such a failure. Of the only 17 states (in 11 years) DOJ boasts to be “compliant”, several seem imminent to reversing their laws – PA just implemented, NV is on hold, 6th circuit will likely impact MI and TN, OH seems likely to undo their SORN law before the 6th circuit is decided (the OH revised statue rewrite is already complete, ready for the legislature). AJ, you are right, we need some court victories in the 5th and 11th circuit for an accelerated collapse.

        • Michael

          … and Kentucky. The 6th includes the district courts in the following districts:

          Eastern District of Kentucky
          Western District of Kentucky
          Eastern District of Michigan
          Western District of Michigan
          Northern District of Ohio
          Southern District of Ohio
          Eastern District of Tennessee
          Middle District of Tennessee
          Western District of Tennessee

          ….

    • @ Robert @ AJ

      So Robert & AJ, did the states then, after their respective SC’s handed them their losses, put it back to the way it was before SORNA even if they appealed to SCOTUS? If so, how long did it take to do that?

      • AJ

        I have no idea, as the States involved didn’t affect me. However, I have very difficult time believing a Governor or Legislature would ignore what the State SC says. Arresting–or worse, convicting–someone based on a law known to be invalid (unconstitutional) would fall bring Federal review, as it would violate the Bill of Rights. Since that hasn’t been in the news or, to my knowledge, the courts, I’m guessing the States all complied.

        As to the outcome of an appeal to SCOTUS, I once again point out that SCOTUS has no jurisdiction over whether a State law violates a State constitution (Calder v Bull). In other words, if the various SCs were ruling only on the State-level issue of the State law, there was no appeal available.

  2. AlexO

    I’m confused. I keep rereading that paragraph and am still not fully understanding what this decision means. How can this be punitive but only for those convicted prior to SORNA? Isn’t that like saying you can’t punch someone born before 1980 but its okay to punch someone born after? If its in deed punitive, then it can only be used while someone is under supervision. If they’ve completed their sentence, then its just as punitive for someone completing supervision a month ago or 30 years.

    Please post and clarify your opinion of this. I’m sure I’m just not understanding this correctly.

    • Joe

      It can be punitive and still “okay” for those convicted after the passage of the SORNA statute. The punitive analysis only comes into play in ex post facto claims. Challenges to the underlying law must be pursued using other theories and we are seeing some of that now, like Packingham. As these laws become more onerous, some courts seem to be less willing accept their validity even when using the least stringent “rational relation” standard. We will see more cases in the future.

      • AlexO

        I can see this split based on conviction date become very costly and unruly for states and cities to manage. Hopefully they’ll just do away with the whole thing post sentence completion.

      • Jim S

        But this should be helpful with IML, which only passed last year, right? So anyone convicted before it passed, would be considered ex post facto, right? Still doesn’t address how horrible the law is, but at least could be some relief for some RCs.

        • Lake County

          I’m not sure if this will help in stopping IML notification on travel. It will be harder to show that IML notifications are punishment instead of just regulatory. Since IML does not ban us from travel, showing ex post facto punishment will be a challenge. The advance 21 day notice under penalty of prison might be shown as punishment especially since providing an exact unchangeable itinerary with an advance notice creates a hardship. The passport “scarlet letter” marking part of IML might be easier to prove as ex post facto punishment especially as compelled speech. If they removed the 21 day advanced notice and the passport markings from IML, (basically going back to the old Angel Watch policy) then the court might agree that it is constitutional. I have a feeling that Janice’s denied suit against the passport markings must have made the government nervous since they have not started marking our passports yet. Maybe they believe that adding the marking will give Janice standing to file her lawsuit and they may not want to risk loosing another constitutional court case regarding registry laws. Or the markings may have been delayed because they are afraid they will mark the wrong John Smith passports with the scarlet letter. I’m sure all the government lawyers miss the days when no one was challenging any laws the legislators placed upon us. In fact, since many legislators are actually attorneys, we may start to see less SO laws being considered which might cause the entire registry to collapse.

    • AJ

      @AlexO
      Punishment after commission of a crime is ex post facto. But if the law, in this case SORNA, is on the books prior to committing the crime, it’s simply part of the punishment. It’s no different than how other “tough on crime” legislation has worked. Suppose GTA is 10-15 years, but effective 1/1/2018 a law kicks in that says it’s 25-life. Those already having gotten punished under the old law cannot suddenly be tossed in for life–that would be ex post facto. But anyone committing the crime on or after 1/1/2018 will face a harsher punishment. Punishment cannot be retroactive (ex post facto), it can only be prospective (here, effective 1/1/2018).

      What these rulings also will mean is that one cannot be subjected to harsher conditions in another state. That will violate the Full Faith and Credit and Double Jeopardy clauses of the Constitution, not to mention unconstitutional extraterritorial jurisdictional activity by the State (punishing me for something that happened outside its borders and where it has no authority).

      This ruling only helps push SCOTUS our direction, I feel. That this many wise women and men in black robes have decided this way really puts the salivating AGs and Legislators on shaky ground (for you Californians) and thin ice (for you Northerners).

      • AlexO

        You keep using the word “punishment”. The article starts out saying, “…though civil in design, was punitive in practice…”

        By law, you can’t continue “punishing” someone after they have completed their sentence. For example, if at the time of your conviction your crime constituted 1 year in jail but later the same crime was changed to 3 years, they can’t go back and have you serve those extra two years after the fact. And in this case, if I understand it correctly, if they made a new law that you can’t live within 2000 feet of whatever, those convicted prior to this new law can live where ever, but those convicted after have to adhere to the law, even if they’ve completed their sentence. So how can this be considered both punitive and regulatory, simply on your conviction date? If its only regulatory, then it doesn’t matter when you were convicted as it can still be applied to you whenever (that’s the entire bases of the registry legality). If it’s punitive, it again doesn’t matter when you were convicted as it can only be applied until you complete your sentence. So which is it? It’s can’t be both, as far as I understand it.

        • AJ

          @AlexO
          I’m not completely sure where your confusion is coming from, as it seems at times you grasp it exactly, but then claim confusion. Your confusion seems to revolve around a belief the laws being applied as regulatory and punishment at the same time. I’m unclear where you got that anyone has ever made that claim or that such is occurring anywhere. The Government says it’s regulatory, allowing them to reach back in time; the Courts are now saying they agree with us that it’s punishment, only allowing henceforth application. Your examples are, for the most part, correct (the 2000′ example would all depend on how it’s codified). If punitive, a law can only apply on-or-after, everyone else is grandfathered. This has been the back-and-forth argument since Smith in 2003. Back then SCOTUS, based on that comparatively simple scheme, said it was regulatory. As we all know, the schemes have gone ape-sh!t crazy and are well beyond that….and Courts are saying they’ve crossed the line from regulatory to punitive.

        • New Person

          I get what Alex is saying.

          Pre-date new legislation = punitive

          Post-date new legislation = regulatory

          Therein lies the problem. The new regulation is punitive as it was deemed so for the pre-dated cases. That is where Alex’s mind is at. Essentially, I think this is what Snyder might be addressing as well. Because Michigan found the added penalties as punishment, then by logic, the regulatory scheme is now a punitive one.

          I recall someone stating that the regulatory scheme must be seen as whole. Thus, if one part is false, then the whole scheme must be done away with. I know the Muniz case used the MM 7 factors for determining punitive vs regulatory. I think Michigan did as well, citing in-person registration as an example of being punitive.

          But I think we’re all waiting for the SCOTUS on Snyder and possibly Muniz.

          So Alex is wondering why are the new regulations called punitive for pre-dates, but regulatory for present and post-dates when the registry was deemed only to be regulatory. The new regulation possesses a duality in value separated by date, but not equality amongst peers. Alex and many others, like myself, ponder when that inequity will be addressed.

        • AJ

          Punitive = punishment. Civil = regulatory.

        • New Person

          Registration => civil.

          As per Muniz,

          New law to current registrant = Punitive (ex post facto)
          New law to newly minted registrant = Civil ?

          Removing adjectives from registrants, the new law (penalty) is punitive and civil to the same identified group. Well, that doesn’t make any sense b/c it, the penalty, cannot be both.

          Since punishment was identified, then the new law is actually punishment in nature. The registry was deemed only civil in nature. You cannot have a punitive aspect existing within a so called civil regulation.

    • Leroy Spann

      I think you should look up the case law which there are seven already presented to you and study them , find the one that fit your case and what you don’t understand get someone to help you. I have to admit the parole board will play games with you like you are stupid but you can’t give up. My only question to you is why haven’t you did something when they first came to you about the life time on Sorna because let me tell you brother I was cursing and everything , I said what if I don’t sign He also said that they will lock me up. So that’s all he had to say to me but before all that I showed my paper work from LT Grime from PA. State Police saying that I do not have to show my where about to anyone do you know what this A whole did ball my paper up , throw it in the trash.

  3. ReadyToFight

    This is Awesome. Love it. Love that comment. “Wage war against the Registry” I’m on board.

  4. Will it go further or not?

    Good article to read. I did not read the majority opinion and dissent, but look forward to the others here who will because I enjoy their comments and analysis. Wonder now if the 3rd Circuit, which PA is a part of, will be the next stop for it. If it does go there, the 3rd includes NJ, which we all know is the home of one IML author, Rep Chris Smith, who will certainly be watching from the sidelines.

    Who is starting the betting pool here?

    • Robert

      How can the case go further? The appellee won. Unlikely that the State will appeal their own PA Supreme court ruling.

      • I believe State AG can appeal again to a higher court

        If the State AG wants to appeal it, it can. They lost despite it being their own Supreme Court. If they did appeal it, would be nice to see them lose it again, then appeal to SCOTUS.

        AK did the same thing when their Supreme Court said the same thing…..all the way to SCOTUS

        If I am wrong here, someone will correct this entry.

        • AJ

          PA can appeal the Federal aspect of the case to SCOTUS, but not the decision based on the broader rights afforded in the PA Constitution. The broader rights of consequence here and granted by the PA State constitution are not Federally unconstitutional. So even if PA appeals to SCOTUS, the best they can hope for is the Federal ex post facto being overturned. They’re still stuck with the state-level ex post facto decision.

    • Joe

      The PA court seemed to go out of their way to only resolve this case under the PA Constitution and specifically stated that any Federal court decision on the Federal ex post facto question would likely have no impact on their findings under state law. IIRC, the only “relief” available to the Commonwealth is an appeal of the state court decision to the SCOTUS and that is not likely to be taken on cert. Even if jurisdiction could be found or created, I would suspect that the Feds would encourage the SCOTUS to NOT take this case for similar reasons as they are asking then to nether Snyder. They don’t want that nationwide can of worms opened.

      • Chris F

        I read it differently.

        I thought they took the unusual stance of declaring it Unconstitutional for both Federal Constitution and the PA Constitution. They did this because previous cases the court only did Federal and then the case got kicked back down to them from SCOTUS reversing them and then they had to adjudicate the state Constitution issue and try to send it back up. They just wanted to prevent the time and trouble of sending it twice and went ahead and ruled on both Constitutions. I applaud that.

        Too many times a high courts only rules one thing Unconstitutional and then leave the rest of the challenges “for another day”. Then that goes to SCOTUS and they reverse and send it back down for the other stuff to await its day in court but even if other items are disputed later SCOTUS may not even again accept the case. It’s a horribly flawed system that drags cases out a decade or more instead of just a couple years.

        • AJ

          I wholly agree with Chris F on this, and in fact was going to post something similar until I saw his posting. The PA SC was very smart in how they handled this, as they’ve pretty much made it a complete waste for the Commonwealth to appeal to SCOTUS. Having ruled that, regardless what SCOTUS says about the Federal aspect, PA-SORNA violates the PA Constitution, the Commonwealth has nothing to gain. PA RCs are now protected at the State level from this law, thanks to PA having a stronger set of rights than the US Constitution gives.

          I did read both the Opinion and the (lone Justice) Dissent. It was a pretty solid decision from the majority (5-1, with one Justice not partaking), and that they found affirmative restraint even though PA has no residency or presence restrictions is important and quite valuable.

          I do have to say that some of the dissent by the Chief Justice holds a little bit of water, but I think he also diverted the argument. He seemed much more interested in applying the sections of the scheme that specifically applied to the appellant, and not interested in viewing the scheme in toto.

  5. Harry

    “… though civil in design, was punitive in practice…”, Now there is a new legal phrase that can be useful?

    • Joe

      Not a new phrase or concept. That is why we have that multi-factor analysis of what constitutes punishment as a matter of law. ALL laws challenged in these cases are claimed to be merely civil, ministerial or what have you.

    • AJ

      Nope, this is already in case law. Rational Basis review looks at 1) intent and 2) effect. That is exactly what “though civil in design (intent), was punitive in practice (effect)” is. What it does mean is that even the lowest, easiest-to-win level of review (Rational Basis) says it’s punishment.

      • Joe

        AJ, THAT is what is interesting about these recent cases. In the past, the courts have mostly refused to apply any type of enhanced scrutiny to these laws unless they were crazy ones like forcing a person to move out of their home even though they had been living there before the new law was passed. That is what got Georgia and Kentucky into trouble. But lately, courts have come out and said that some of the newer laws cannot even stand up to a rational relation test when applied retroactively. The first one of these new breed may have been the state and Federal decisions in Ohio a couple of years back which not only shot down the retroactive application of the residency restrictions 9 but really only put in a “grandfather clause”, IIRC) AND,more importantly the application of the AWA requirements to person who were undertake old 10 year rule. . The next BIG step would be a court filing that some these laws as applied to NEWLY convicted people go too far. I know that people who were convicted after these laws were passed are disappointed, but this appears to be the most effective way to “get the camel’s nose under the tent” for now.
        The next round might go after cases where people were convicted under an older law, but have had the new law applied to them because they got out of jail after it was passed or they moved to or from another state and they state law says that the more onerous law will control, be it from the state of conviction or the new state where the person has moved.

  6. Lovecraft

    I havent read the article yet, but based on the first sentence “punitive in practice and thus cannot be applied retroactively” I would think if any of it is deemed “punitive in practice” it cant be applied to anyone unless the specific conditions were in their plea agreement or court decision. I imagine this is where substantive due process comes in with the ex post facto claims, which sets the precedent for a challenge via a procedure due process claim.

    There was a dicussion the other day on another article on here involving a lawsuit and due process. Right now procedural due process carries no water, but I would think with a ruling such as this (at least for that state) that it would open the flood gates for procedural due process. In a vacuum, either due process win should be enough to address everyone, but I know due process can fickle with how its applied. Maybe AJ would have more imput.

    I am glad that a state supreme court could arrive at this decision. Its nice to see elected officals make the correct call, especially when its an unpopular one.

    • Robert

      Pg. 47 – “We are also aware our decision that SORNA violates the federal ex post facto clause is a departure from federal case law which has upheld the Adam Walsh Act against federal ex post facto challenges.”

      Most courts have stopped short of finding the federal case law unconstitutional, this is a solid decision that is sure to be cited from now on.

    • AJ

      @Lovecraft
      IMHO, there is, and will never be, a reason to introduce a Procedural Due Process (PDP) claim. It’s a horrible argument, as it cedes (or at least ignores) the constitutionality of the law itself and any liberty interest deprivation(s). One must always sue under Substantive Due Process (SDP).

      Going back to the unanimous opinion of SCOTUS in CT DPS v Doe (https://supreme.justia.com/cases/federal/us/538/1/), “[u]nless respondent can show that the substantive rule of law is defective [], any hearing on current dangerousness is a bootless exercise.” Bootless. In other words, fourteen years ago, SCOTUS said PDP is a waste of time. Continuing further, SCOTUS then says, “[i]t may be that respondent’s claim is actually a substantive challenge to Connecticut’s statute ‘recast in “procedural due process” terms.’” Here, SCOTUS pretty much said, “you had a possibly valid SDP claim, but insisted on making it a PDP claim.” Then SCOTUS said, “[s]uch claims ‘must ultimately be analyzed’ in terms of substantive due process. [] Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles.” For the third time in the Opinion, SCOTUS says, “this has to be challenged as a SDP claim, not a PDP, but since you didn’t bring the SDP claim before us, we’re remaining mum about it.”

      How this has sat unchallenged for almost a decade-and-a-half is beyond comprehension.

      Takeaway lesson: never, ever, ever challenge these laws as a PDP issue. SDP is where the action is, and if there’s a SDP violation, PDP is rendered moot.

      • Lovecraft

        Thanks AJ. Yea I know SDP is the only viable due process claim. SDP is the crux of our nc challenge. One of the people in the lawsuit suggested that if a SDP claim was won in court that it could introduce the ability to process a PDP claim. For all practical purposes a victory in SDP should be enough to pave the way to make the registry just that, a registry. (with no extra bells and whistles)

        Im with you, I dont think the registry is going away at least not anytime soon, but the restrictions are on their way out. Maybe we get to a point where the registry is LE only, but thats going to be a tough battle to win. I imagine, that when the registry gets reduced to a membership only status there may be some wiggle room for reducing the amount of time one stays registered. Its certainly interesting to think about…when people have to live and be around registrants in everyday life (ie when we have the same basic rights) they will be more inclined to accept shorter registry requirements.

        And yes the SDP claim being unchallenged for going over a decade is astonishing.

        • AJ

          Yes. If there is no SDP violation, one could then go down the PDP route to make sure the process of applying punishment (if any) was done in a legal, constitutional manner.

          I think once the “fun” (and funds from Uncle Sam) of chasing down RCs to try to catch them in a violation evaporates with the punitive scheme, State’s may find a risk-based registry more valuable. That shouldn’t be too hard to do, as a Psychosexual Evaluation could be made part of any court proceeding, just like a PSI is. I think it will take a while for our culture and legislators to swing that way. They’ll probably instead spend their time trying to find ways around the court rulings.

  7. American Detained in America

    Perhaps this is a sign that the avalanche needed to see the registry abolished could be coming…

    • Joe123

      I believe within 5 years we will see the registry fall apart, at this rate. It may be outright outlawed or it will be a skeleton of what it is today. The momentum is there, we aren’t going backwards anymore.

      • AJ

        I foresee it being a skeleton, probably back to what AK had under Smith. I’m skeptical of it ever going back to being a non-public registry. I do think it will happen faster than five years. The process is crumbling fast at the State level, and I think SCOTUS will use Snyder to take care of those States that have yet to admit or face the unconstitutionality of it all.

      • ma.concerned.citizen

        Depending on Snyder I could absolutely see “something” big happening way sooner than within 5 years. What exactly that entails, who knows. I’d love to see it completely abolished, but I’m not sure the SCOTUS is willing to go that far. Maybe back to the original “Price Club” days, with everything after that deemed ex post facto. We’ll see….

  8. kind of living

    well its about time someone see that its wrong to stick this crap on people that have like old plea agreements that said nothing about having to register , like before the iml , its is punitive for those people , but should also be looked at as punitive for everyone else as well on many different levels , not just because it was not even law yet , at least in the old law of CA you could leave the state and move along and the most you were looking at was petty stuff , and its not like they were hoping to drag you back , face in the wind blowin down the road with my lady on the back of my putt , feeling free, having friends leaving the passed behind , then all of a sudden its all about we aint dune with you yet , now living in a crap hole of a life as well as the my family , it was like now you see freedom now you don’t , seeing the lady that was on the back of my bike is my wife and we are just locked down in this rut watching each other get old , I see the worry in her face all the time , it make me so sad that our kids have had to grow up with all this , our girls moved away and got hooked up on drugs , one is in prison right now , one of the others is def and with some low life punk of the week , and we are unable to help , so if I am going threw things like this then I know countless others are as well powerless to even help our own familys , punishment ! for all of us I am sorry that I bang on like I do some times I just have trouble reeling it in , I am sorry

  9. Chris F

    I’ve read the opinion completely.

    It’s great news, but I still have a few concerns.

    They totally blew off the challenge to recidivism actually being low. The plaintiff provided tons of proof it was a low number, and the state, as usual, said they found some conflicting findings and even the low numbers don’t take into account the possible huge amount of unreported crimes. The state requests the determination of dangerous recidivism be left to the legislature and not addressed by the Judiciary. The judges agreed.

    Here was the line from the State:
    “appellant is misguided in asking this Court to second-guess legislative judgment since there is no absolute truth when it comes to the risk posed by sexual offenders”

    Here was a judges quote on it:
    “We recognize there are studies which find the majority of sexual offenders will
    not re-offend, and that sex offender registration laws are ineffective in preventing reoffense;
    we also recognize there are studies that reach contrary conclusions.”

    I find it troubling that these issues aren’t attacked differently by plaintiffs. They need to protest that the “legislature” and executive branches are the ones that provided the totally debunked “80% recidivism” and “Frightening and high” that infected not only SCOTUS decisions since 2002 but then hundreds of cases, laws, and public opinion. All of this makes the legislatures involvement suspect, damaging to the pursuit of justice, and deceitful. The very punitive nature of the registry itself leads to the very problem with under-reporting that legislature uses as its excuse. We have a history of deferring to freedom over restrictions even when it comes to high chances of guilt. Just look at Miranda laws, double jeopardy, spouse can’t be forced to testify, right to remain silent, right to not self incriminate…etc..etc. How is it that just because something is declared sexual in nature does this theory of justice no longer apply?

    I did like the following quote from the judge, which shows the direction other cases should take:
    “However, we do find persuasive appellant’s argument that both the state
    and offenders have an interest in the finality of sentencing, as well as the claim the
    Pennsylvania Constitution’s special treatment of the right to reputation justifies greater
    protections under the Pennsylvania ex post facto clause”

    The dominoes continue to fall on Ex-Post Facto and the regulatory scheme is now clearly punitive.

    Now we just need to attack the entire scheme under other Constitutional violations like Substantive Due Process, Separation of Powers, Bill of Attainder, Right to Privacy, Involuntary Servitude, Cruel and Unusual Punishment, and any other relevant categories.

    I’m keen on running with what SCOTUS declared in Packingham about how it is “troubling” that we have restrictions after supervision. That is clearly a violation of Substantive Due Process, and Separation of Powers in that it is the Judiciary’s role to protect the public during the fair sentencing phase of a trial and not the legislature. Unless legislature takes that away from judges, legislature is clearly interfering with ordered liberty and established judicial processes.

    One other thing I didn’t like in this case was how they only determined reporting to the police is on par with parole/probation. It is actually FAR worse what registration requires. When I see my PO, it is in an office environment at a time that I schedule around work. To register, you do it every time something changes, at a police station, and at a time demanded by the police where they can make you wait as long as they want. The restrictions on probation/parole are more tailored to the individual and circumstances and can be reviewed and changed by a judge. The restrictions on registered people are set in stone and geared toward the worst offender. During parole/probation, the restrictions are also known to you and in effect wherever you go. With registration, any city can have different restrictions placed on you that you may not even be able to find or understand until you are arrested for something you knew nothing about.

    UGh…I can go on and on…

    • Judges leaving work on the table

      Ugh…..Judges…..not wanting to stand up…

      @Chris F, nice write up and thanks for it

      Open thoughts here:

      They know there will always be conflicting data because people will read and interpret data as they want when classifying it before publishing it. Many people here have shown what is truly in a recidivism rate vs what someone else puts into it then calls is recidivism. I won’t repeat the discussion points on that but they are valid by those who opine here on the real data rates. The Judges shouldn’t have chickened out on that argument but taken it head on and not left it for the Legislature et al because they aren’t wont to it. Point for the state….

      Courts and legislatures understand every crime is underreported through unreported crimes, so it is not possible but realistic; however, can you truly use the qualifier of “huge” and know that is possible? If you can quantify what huge is, then the verbal qualifier may be appropriate, but anything is possible including the total opposite in very small. Use data points not verbal qualifiers to show sample size in underreporting. Here the lawyers are painting with a broad brush of BS because they can and are used to do it to get the point across. Point for the state here too….

      My two metal Lincoln’s worth of thinking here…

    • JohnDoeUtah

      The one way to nip this in the butt, is to ask for an evidentiary hearing during the case in chief, before appeals. That way it gets into the record, and the judge is forced to rule as a matter of fact. The Plaintiff must object to the states studies and ask for the hearing, and a ruling that the state’s studies are false and misleading. This would include expert witness testimony from both sides regarding the studies, maybe even from the authors. An expensive proposition, but greatly needed.

    • Lovecraft

      “even the low numbers don’t take into account the possible huge amount of unreported crimes”

      Uh-oh here we go with that tired agrument. I love the lets make a statement seem logical to the general public which makes registrants look bad, but have zero data to quantify said remark. Come on judges! You should be better than that. Try this logic: if a registrant commits another sex crime and someone knows about it, they are way more likely to report the registrant because guess what….they are already on the registry. In fact, im willing to bet 99% of the time someone will report a registrant for a new sex crime. If you flip it around and the person has a clean record there is a much higher chance for it to go unreported. So its back to “most new sex crimes are commited by people not on the registry” In fact, it actually lends more creedence to that fact registrants have a low reoffense rate.

      Regardless to how many are unreported im sure if anything our numbers would be even lower if we had the actual true values.

      • AJ

        I can vouch that at the very least shoplifting, underage drinking, jaywalking, marijuana use and speeding are all under reported. 🙂

    • AJ

      @Chris F
      I agree with what you wrote, but am a little less concerned about the recidivism aspect. That the PA SC didn’t challenge it in their Opinion doesn’t say much to me. Perhaps they challenged it during argument. Perhaps due to the back-and-forth of what the “real” numbers are, they chose to leave it out in order to have a more solid Opinion. Perhaps they see it as of secondary and/or unnecessary importance given the weight of the Mendoza-Martinez factors. It would have been nice for them to address it, but in this specific case it doesn’t appear it would have contributed to either side of the scales. In fact, that they found the PA SORNA punitive without mention of the bad data only works in our favor. We still have that bit of ammo in reserve!

      I agree that the 80% lie needs to be dragged out into the open some day. As you say, it’s the lie upon which the legislatures are making their findings. Then, the judiciary uses the assumption that the legislature has done its due diligence in researching things to come to that finding, and doesn’t challenge the State on the source of its finding…because apparently that would be second-guessing the Legislature. No, it would be exposing a false finding, Your Honor. For some reason, the judiciary still seems to think legislatures always work with honorable intent. How quaint…and damaging.

      I think PA SC’s “finality of sentencing” statement mirrors the “troubling” statement from SCOTUS. It does appear the judiciary, in some quarters, has serious heartburn over these laws. Further suits attacking the SDP violations is definitely needed, and I think will have success (esp. given the SCOTUS comments in CT DPS).

      I was a little bothered by the probation comparison the Chief Justice used in his dissent. He took every single possible probation item and lumped them together as though that’s how every probation is. Just because the scheme lacks every element of probation doesn’t prevent it from resembling probation.

      What I found humorous out of the whole Opinion is that essentially the State kept arguing, “yeah, but the Legislature said it’s civil regulation.” Kind of how MI’s argument in Snyder seems to be, “but we’ll lose Federal funds if this is struck down.” Empty arguments, and, in MI’s case, probably false. Also of interest was that the Opinion repeatedly referred to the amicus from the PACDL, but only once used the amicus from PDAA.

      On a tangent, someone up above listed seven states as having found SORAs unconstitutional. I haven’t done a personal tally, but it seems it’s actually at least 8. The Opinion mentions 7 have already done so, making PA the eighth. Doesn’t matter too much, but it matters. 🙂

      Finally, what I find interesting is that only 17 states (plus Guam, Northern Mariana Islands, and the USVI) have bothered to become AWA/SORNA compliant (https://www.smart.gov/pdfs/SORNA-progress-check.pdf) as of 6/30/17. Two (ND, TX) are pending or missing information. That leaves 31 states (plus American Samoa, DC, and Puerto Rico) that say SORNA isn’t worth following. Unfortunately, Congress’ answer probably isn’t to assess AWA as the failure it is; they will probably increase the pain on the States and withhold a higher percentage of funds. This doesn’t mean 31 states are wonderful places to live (NY is non-compliant, but seemingly a PITA state), but it does go to show that AWA is found lacking by many.

      Now, I’m off to read that case mentioned in the Opinion, US v Irey, assuming I can find it. It could be a tough read, as apparently Mr. Irey did some very heinous things.(https://www.georgiafederalcriminallawyerblog.com/2010/08/us_v_irey_divided_en_banc_elev.html)

      • Chris F (@AJ)

        I read some of this case you linked at the bottom.

        I find it interesting that they bring up the Booker SCOTUS decision where:

        “In it the Supreme Court held the sentencing statute unconstitutional insofar as the guidelines were mandatory and to the extent that they allowed the upper limits of the sentence to depend on facts that had not been established by a plea of guilty or proven to a jury beyond a reasonable doubt.”

        So in effect, Legislature can’t set in stone what a Judge can do, but somehow that is exactly what happens with sex offender registration. The arbitrary lengths of time of registration are exactly set in stone, and judges have no discretion in leaving off registration or altering its timetable for any reason.

        I wonder if Booker could be referenced in a case against the mandatory nature of the registry?

        • AJ

          @Chris F
          Yeah, I read some of the Irey case (256 pages!), but didn’t get too much out of it. It seemed to be more an argument within the judiciary than anything else. I did a document search on “recidiv” to see what would come up, and nothing leapt out at me. The studies all seemed to deal with contact offense, which was pertinent in the PA case, but not to SOs in general.
          I was disappointed to see in Irey that yet again “frightening and high” from Smith was cited. They also mentioned that Congress had found recidivism high. I’d be willing to bet that finding was somehow based on Smith or the debunked “study.” (This circular ‘truth’ just cannot be escaped!)

          Booker could apply, but to me it seems a stretch. What I understand Booker to have done was reduce the Sentencing Guidelines from required ranges to…guidelines. (Funny how that works.) The whole Booker case was about judges going beyond the statutory maxima based on the Guidelines, and not the facts of the case. I don’t know that any RC suffers that. The reg. schemes are not guidelines, they are statutes with specific time frames. It’d be one thing if the reg. laws said 15 years and a judge mandated 20, or life, or whatever. But otherwise, the judge is following exactly what the law says. I think argument using Booker would have to be that it was about judicial discretion versus legislative requirement. Given the Guidelines are created by the US Sentencing Commission, an “independent agency of the judicial branch,” and that SCOTUS has already held it’s not legislative overreach into the executive, I think it’s a lost argument. (https://en.wikipedia.org/wiki/United_States_Sentencing_Commission)

          I’d be interested in seeing is if there are cases where a law mandated loss of driver’s license for a certain amount of time, say 12 months, and judges have issued less time, perhaps 6 months, due to mitigating circumstances. I gotta think there’s at least one DUI case out there where such happened, but maybe not. This would seem to be our best argument towards judges using risk-based assessment instead of offense-based.

        • Chris F (@AJ)

          @AJ

          “I’d be interested in seeing is if there are cases where a law mandated loss of driver’s license for a certain amount of time, say 12 months, and judges have issued less time, perhaps 6 months, due to mitigating circumstances.”

          I’ve posted something exactly like this at the end of the General discussion with a case in Houston for a sex offense not getting any supervision after jail time. We can probably continue this discussion there once it’s approved, which it should be if you can read this. 🙂

          Basically, Booker not only affect upward changes, but also downward, as both Max and Min guidelines are affected and made advisory now. So if any other crime and punishment can have circumstances that allow downward departure, why is the now punitive effect of registration also allowed to NOT be mandatory for the same reasoning as Booker, where a judge must be able to take everything into account to provide a just sentence? The case I mentioned in Houston had the judge’s decision for no supervision time reversed, but not because the Booker decision was flawed, because the judge’s reasoning to invoke Booker wasn’t sound enough in this particular case.

        • Chris F (@AJ)

          @AJ

          Oh, and to clarify, like many cases I bring up I don’t expect something like Booker to be part of the primary challenges to the registry. There are much better arguments. I just would like them included somewhere in an argument to add to the overall pool of reasons the Registry hampers the Justice department and how nothing should be put on someone after completing their time unless it passes a very strict scrutiny and the public is in grave and immediate danger.

          I have a similar opinion on the Involuntary Servitude argument. Standing alone, I think it doesn’t stand a chance. But as part of a large approach to showing the absurdity of the entire scheme, it may be a key lynch pin that changes a judges attitude about other challenges.

  10. David

    Thank you, Quaker State, for recognizing what so many in the judicuary are too cowardly to: the Registry is unconstitutional ex post facto punishment. Nothing but a modern day pillory designed to shame and ostracize!

  11. kat

    It only takes one state to get the ball rolling…, punitive is punitive no matter how you cut it.
    Hopefully, this is it!

  12. TXSO4Life

    Chris F, I agree with you when u stated the Court decided to tackle the issue head on on both Fed and State constitution for fearing of SCOTUS overturning them on the US constitution. As the PA Court own word …(We are also aware our decision that SORNA violates the federal ex post facto clause is a departure from federal case law which has upheld the Adam Walsh Actagainst federal ex post facto challenge… Therefore, our holding under the Pennsylvania Constitution would remain unchanged SHOULD the U.S. Supreme Court resolve the issue contrary to our analysis of the federal constitutional question..). On a different note, has anyone taken the time to read the MI state goverment’s brief filed in responding the snyder case? There was a spread sheet section when the goverment spreaded full of liars in citing many cases upholding restrictions. In one instance they cited a cali district court ruling finding resident restriction constitutional and we all know that decision has been over ruled by the cali supreme court. The goverment cited many cases (some has been overturned) supporting SO restrictions yet they only cited 2 cases to the contrary and as we know we now have 7 state supreme cases and one 6th circuit court case supporting our cause.

    • Chris F

      Will someone flle a brief challenging the state’s brief of lies?

  13. RP

    Just using the wording punitive is epic. A state Suprime Court has said it is punitive and the US Suprime Court said in the past these laws are only civil.

    This is a strong ruling that if peopl can keep building on will allow a documented history of legal rulings to show tSCOTUS that they need to end this practice

    • ma.concerned.citizen

      Hopefully they can prove that it’s all punitive, and not just the ex post facto aspects. I was convicted in 2008, so none of the ex post facto decisions directly affect me. Now if it can be proven the whole thing is punitive, and not just ex post facto, then it helps everyone.

      • AJ

        Ex post facto pretty much does make “the whole thing” punitive. The Ex Post Facto aspect merely prevents the punishment from reaching backwards in time; the prospective aspect will need to be attacked as excessive/unwarranted deprivation of liberty interest(s). But, with it being punitive, the 5th and 14th Amendments kick in. Given the scheme was deemed regulatory when pretty much anyone was convicted, there is no way there was any deliberation, risk assessment as to recidivism and/or rehabilitation, or due process afforded. Instead, one was given a “mandatory minimum” of whatever existed at sentencing.

        • New Person

          That’s the hope.

          Because the newer laws are considered punitive due to the construction “for the regulatory scheme”, then, hopefully, things can be revisited since the new laws are punitive. You can review punitive law, you can’t regulatory. That’s why SCOTUS bent over backwards to pass registration as a regulatory scheme based upon it’s “frightening and high” recidivism rate and the need to protect public safety from such an extreme threat of 80% recidivism rate.

  14. Stephen

    It’s my Guess that PA will just Create a second set of rules for People Convicted Before SORNA, but never let them off the list.

    • ma.concerned.citizen

      That would be blatant ex post facto beyond even what we’ve seen to date. I would imagine (hope) if they tried to implement “special” laws purposely designed only for those convicted prior to SORNA it would immediately be challenged and shot down.

  15. David

    Here’s another article on the ruling:

    http://www.mcall.com/news/police/mc-nws-pennsylvania-sex-offender-retroactive-rules-unconstitutional-20170720-story.html

    I strongly encourage folks to post comments to such news articles. Let’s use facts and good arguments to lead public opinion back to reality, common sense, and justice.

  16. ReadyToFight

    Soooo…..fellow RC’s have been wronged by their state. Please tell me that’s enough for an epic class action suit.

    P.s Death to the Registry

    • Chris F

      Funny, but I’ve often thought, the only way to STOP legislature and the public from continuing to ignore the US Constitution in the future when creating laws against a dis-favored and politically powerless class is if the courts were to awards tons of money to those hurt by the Unconstitutional laws.

      Can you imagine how carefully they would construct future laws if it was reported that child molesters were given thousands of dollars from the state or federal government? This is definitely possible, though unlikely. I only say it is possible because at some point the judges will get upset at politicians not only ignoring the Constitution but usurping the role of the Judiciary in determining how to punish a person and protect the public from an adjudicated person which is lawfully and historically the Judiciary’s boat house alone.

      • New Person

        Don’t forget to use of manipulative statistic!

        Dr. Ira and Tara Ellman proved how egregious the SCOTUS deemed sex offenders as a threat to public safety. This is similar to Justice Alito stating that the rate of re-offense is 4x’s higher than any other convict to commit a sexual offense. Well, therein lies the problem – it’s not a re-offense rate vs re-offense rate comparison. Sex offense between a sex offender and any other convicts reveals how minuscule sex offenders are to any other convicts.

        I believe the best way to put SCOTUS and legislators on the proper is to hit them fiscally by a huge margin. Apparently, the federal system didn’t learn from the Korematsu case. So up the ante to make a statement to never impose such a manipulation of law to circumvent the Constitution.

        To me, this registration does a negative pyschological effect. Mentally, I’m beat down. The SCOTUS and state of California have deemed me a monster. Only monsters get lifetime registration, right? 1203.4 states I’m a rehabilitated person, but the registry says the contrary and still forces me to register as well as abide to all the restrictions – thereby not making any significant difference by earning a 1203.4. As a registrant, you are disqualified for certain assistance such as HUD even with a 1203.4 in California b/c there is only one type of sex offender registry – lifetime.

        Look at the NY guy who got fired when the state government (the employer) discovered he is a sex offender b/c others told the state about his past. There’s no way to move up. And people are okay with this inequity?

        We did our time. Instead of letting us start over again, the state and country are making sure we are mentally serving the state still without the prison bars.

  17. Good analysis of PA SC AWA loss

    AWA Loses in Pennsylvania’s Highest Court
    https://narsol.org/2017/07/awa-loses-in-pennsylvanias-highest-court/

  18. Civil rights first

    So…. in short I take this to mean any changes to my states registration statute (WA) after my conviction is ex post facto…. and since at the time of my offense (1997) there was no mandatory life registration that would mean I could make that same argument.

    • If applied to you

      Yes, if they applied the changes to you after your conviction and time served, that’s ex posto facto.

      • Civil rights first

        If this is the case then any changes to the registry since my conviction wouldn’t apply to me. Like the newly implemented change on July 23, 2017 that requires me to notify I writing 21 days certified mail return receipt requested of any intentyou travel out of the country. Or the life time requirement to register…

  19. Whoremovesfromlist

    My husband was convicted in 2006. Sentence in 2006. Commonwealth v Muniz applies to him. But who is responsible for removing him from SORNA and putting him back on Megans Law 3. With all emotions set aside. The big issue is, who is resposible for removing his name from Sorna.

    • Michael

      The Pennsylvania State Police. It is possible that sometime PSP will begin to remove people affected by this ruling from the registry, but this could take quite some time. Your husband might want to consult an attorney.

      • PSP would delay it too...

        And you know PSP will drag their feet to delay it as much as they can until told no more delays. A court order would be helpful to ensure it gets started because PSP Chief wouldn’t want a contempt charge.

        • Michael

          Writ of Mandamus [Action in Mandamus], which is what an attorney would be filing, isn’t a blanket order. It applies to the appellant only.

          Once the Attorney General’s Office issues a formal opinion to the Pennsylvania State Police to remove offenders, they’ll have to start removing people.

          ….

    • AJ

      As Michael said, it’s the State (PSP in particular) who must remove it. They have no grounds to delay, either, since regardless whether the AG appeals the Federal aspect of the PA SC decision, the State part stands. The longer the State drags its feet on removing people, the more its butt is hanging out for a lawsuit. Agreed that any attorney needs to be brought in. Perhaps the State needs to be forced to pull the whole site down until it can clean it up.

    • Whoremovesfromlist

      My husband called PSP today. He was told that being July 19 2017 was the decision for Commonwealth V Muniz. The state has 30 days from that date to appeal. He was told that they are looking over 17,000 registered offenders. They estimated 4500 will be removed. They have been told to begin to look at the convictions. A letter will be sent to each person due relief from Muniz. They will be sending letters out on August 19 2017. She also stated a court order would not be necessary, however, my husband believes it would be a good idea to get an attorney for force there hand like they forced ours. The court order gives them a push like they pushed him on Sorna in 2012. They cant fight back. We won!

      • AJ

        @Whoremovesfromlist
        I think I would push harder on PSP (via an attorney) on this. The Commonwealth can only appeal the portion of the Opinion addressing the Federal constitutional issues; the Commonwealth portion is decided and cannot be appealed. PSP cannot follow Federal guidelines that are unconstitutional at the Commonwealth level. In other words, any possible appeal is moot to the outcome, as the Commonwealth-level ruling will stand no matter what. I’d get an attorney and see about forcing PSP to act–they obviously has the information ready and split out of the database, so they can’t say they’re not prepared.

        P.S. You may want to add spaces to your handle. “Whoremoves” can be read two ways…;)

        • Lake County

          “Whoremoves” that’s just too funny AJ. I read it as “whore” also.

        • Timmr

          Whore moves list. I was trying to picture that for awhile, then I moved the spaces… duh!

      • C

        Wow. What a wonderful feeling you must have. Very happy for you!

      • AJ

        @Whoremovesfromlist
        If you do contact an attorney, be sure s/he knows that in Calder v Bull (1798), SCOTUS determined it has no jurisdiction over whether a state law violates a state constitution. “[T]his court has no jurisdiction to determine that any law of any state Legislature, contrary to the Constitution of such state is void.” (https://en.wikipedia.org/wiki/Calder_v._Bull) As I said above, the State-level portion of the case has had its final determination and cannot be appealed. I would think any half-sharp attorney could make a successful case in the State (NOT Federal) court system and blow away that 30-day appeal claim.

  20. Bobby

    Ok, Ladies and Germs,

    Though I am not from Pa. I did run across this a few minutes ago on the NARSOL SITE , regarding the Pa registry. I was not sure which Pa Article to put it under, and I apologize if this was already found and posted some where else on here ,but here is what I found. https://narsol.org/2017/07/district-attorney-to-seek-scotus-review-of-pa-decision/

  21. S foersch

    Very confused with the decision. My husband got off the Pa registry last year after fighting the courts. We were told that if we travel he may still have to register in another state. Does this decision absolve him from having to register in another state?

    • It depends

      Most states I believe don’t care once you are done, you are done. However, there are a couple states, where I think FLA is one of them, who seem to think you need to register even when you are no longer required in your home state. Others here will chime in with their knowledge of it….

    • AJ

      @S foersch
      First, congrats for getting off the list in PA! That must have been a nice feeling to finally get that freedom.

      As to your question, it does indeed depend. It all depends on how the State visited has written its “regulations.” Some tie registration requirements to how long it’s been since the conviction, adjudication, etc., while others tie it to whether required to register in the State of conviction. States sometimes create a special definition of “resident” that applies only to the SORA laws of the State. They then will state that any resident convicted, etc, must register for XX years from date of conviction (MS, I think, does this, and I would imagine AL, SC and FL, among others, do too). Some States, on the other hand, only make you register if you’re required to do so in the State in which the conviction occurred (MN, I think). The takeaway is for your hubby to read the SORA laws of any State in which he plans to spend more than perhaps 48 hours (NV) and/or 3 cumulative days, consecutive or non-consecutive, in a calendar year (IL). I don’t know of any that are lower than that, but I could well be wrong.

      If you have access to a lawyer who will interpret the laws of whichever State is of interest, I would highly recommend doing so. Many lawyers are (understandably) gun-shy about doing such about laws beyond where they are licensed to practice, so you’ll probably have to have a pretty good relationship with her/him.

    • Trip reqs for RCs

      Here is a list of the 50 states and their requirements from this website’s legal section above. It is confusing because the states make it confusing, not because the author makes it confusing. It can be read through to gather some understanding basically of when you’d need to register. Finding it in each state’s laws online is a hard effort at times, so this here is a good ref point to start with. The other catch that has been recently discussed here is the person(s) traveling with the RC may be held liable for knowing the RC laws, e.g. Wyoming has been discussed that way of late,

      Other tip for you and yours: keep a low profile, stay outta trouble, register the trip in your name and most importantly, make great memories while having fun!

      http://all4consolaws.org/wp-content/uploads/2017/01/Summary-of-State-Registration-Laws-Concerning-Short.pdf

      • AJ

        You could also use the doc provided by USSG in its amicus to SCOTUS: http://www.csom.org/pubs/50%20state%20survey%20adult%20registries.pdf. I have to say that, given the tenor of the USSG’s amicus, I have suspicion as to why they used such an old document.

        The document is dated (Aug 2009), but it lists the applicable statutes for each State as well as their restrictions and such. Again, it’s only a reference, not necessarily the gospel truth. But at least it can help in finding the laws themselves, which “Trip req for RCs” correctly points out can take effort.

  22. Who removes from list?

    My husband located a case from PA Supreme Court – Leroy Spann vs PSP and Pennsylvania Parole Board. The PA Supreme Court used the Muniz Decision in his favor. Even the decision was concurring by Pa Supreme Court Judge Saylor and Mundy, and admit they dont agree with Muniz decision, they stated it is now Pa Law and must be applied to Spann. PSP or Pa State Parole couldnt mandate Leroy Spann to Register under Sorna because his sentence was 1990. Please look into this and post of your site, if this is correct!! This means that Muniz Decision, can be used for appealling SORNA cases when applied retroactively!

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