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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July 19, 2017 10:10 am

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)

July 19, 2017 10:23 am

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.

July 19, 2017 10:26 am

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

Will it go further or not?
July 19, 2017 10:27 am

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?

July 19, 2017 10:37 am

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

July 19, 2017 11:39 am

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.

American Detained in America
July 19, 2017 12:41 pm

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

kind of living
July 19, 2017 1:45 pm

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

Chris F
July 19, 2017 2:20 pm

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…

July 19, 2017 4:28 pm

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!

July 20, 2017 7:06 am

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

July 20, 2017 7:41 am

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.

July 20, 2017 8:29 am

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

July 21, 2017 4:12 am

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.

July 21, 2017 10:01 am

Here’s another article on the ruling:

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.

July 21, 2017 10:30 am

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

Good analysis of PA SC AWA loss
July 22, 2017 7:35 am

AWA Loses in Pennsylvania’s Highest Court

Civil rights first
July 23, 2017 11:36 pm

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.

July 25, 2017 4:31 pm

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.

July 28, 2017 5:52 pm

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.

S foersch
July 29, 2017 4:51 pm

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?

Who removes from list?
August 16, 2017 6:23 pm

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!