PA: Internet dissemination provision of SORNA II violates the federal prohibition against ex post facto laws

Yes it is a win for some registrants in PA.

“At issue in this case is whether Acts 10 and 29
of 2018 (“SORNA II”)1, which require the Pennsylvania State Police (“PSP”) to
disseminate via the Internet registration information about sex offenders,
violate the Ex Post Facto Clause of the U.S. Constitution. In light of our
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), we conclude that the Internet dissemination provision of SORNA II
violates the federal prohibition against ex post facto laws. Accordingly, we
affirm Appellant’s Judgment of Sentence, but direct the removal of his entry
from the state police sex offender website.”

I know little about the law and court opinions, but the way I read this is that in PA due to the state supreme court Muniz decision issued during 2017, the public registry was found to be shaming and punishment and therefore the law to keep one on the public sex offender website after PA Acts 10 and 29 were effective is prohibited IF your offense was committed prior to the enactment of Acts 10 and 29.

This does not mean you don’t register in these certain instances, it just means the information is not made public. And it means if you commit a sex offense after the enactment of Acts 10 and 29, then you can have your information displayed on the public registry even though being on the public registry has been considered punishment. The punishment just can’t be retro-active or that violates the federal constitution.

There is another PA court case in process at the moment where the registry itself is being challenged and the PA supreme court remanded the case back to trial court where the state is being required to submit evidence of “high and frightening” to substantiate the registry and the defendent SO is being required to submit additional evidence to prove not all SOs are at high risk of recidivism. I think the attorney arguing the case should prove not all SOs are a high risk of reoffense, not recidvism. Because a sexual reoffense rate is low, but recidivism rate is higher due to so many technical violations of stuff that is completely bullsh_t and has no empirical evidence to back the bullsh_t rules.

Anyone please feel free to correct me if I am wrong on my understandings and statements.

@ Pat:. I think you are missing an important (if unfortunate & questionable) fact: Your argument HAS been made repeatedly, but the courts have repeatedly agreed with LEOs, prosecutors, D.A.s, etc. that Registries, limits on where one can reside, etc. are all “administrative” or “civil”, not criminal punishments. Therefore, they do not trigger Ex Post Facto limitations. This has been argued dozens of times in our courts.

🤗 So glad to hear of this intelligent and appropriate ruling by the Pennsylvania Court! Those of us required to be on registries KNOW that Registries are punishment! 😠

td777 hits a home run with his observation of the facts.

What I don’t understand is if it’s considered punishment, then why does it matter when a person was convicted? If one finishes their sentence in full, then they shouldn’t be subject to this regardless if their conviction was pre or post the law change.

I do think people are focusing too much on the ex post facto part of this, which is relevant primarily because it requires a law to involve punishment to qualify. By recognizing the registry as punishment, it strengthens the argument, which we all know as absolute fact, that the registry is cruel and unusual punishment. This is why the registry IS unconstitutional, as it clearly violates the Eighth Amendment. This is the argument that needs to be pursued if we ever hope to see the registry abolished, and to get there, we need more and more rulings like this one that reaffirm the registry as punishment.

Through all the comments I’ve read have really good understanding of our constitutions that offers us many protections. Act 10 and 29 never fixed the unconstitutional aspects of Muniz nor Butler. Here, Act 10 amended SORNA’s declaration of policy to read: “it is the intention of the General Assembly to address the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and Pennsylvania Superior Court’s decision in Commonwealth v. Butler,[173 A.3d 1212 (Pa. Super. 2017)].” 42 PA. C.S.A. section 9799.10(b)(4). But we already have the Pennsylvania Supreme Court interpreting pre-amendment SORNA as punishment for Constitutional purpose. Muniz, 164 A.3d at 1218. We have Butler applying this construction to follow the rule announced by the United States Supreme Court. Butler, 173 A.3d at 1217-18. Our Courts are obligated to follow these judgments to the extent they continue to apply, legislative intentions notwithstanding. See: Stilp, 905 A.2d at 954. And our Courts cannot depart from these simply because the Assembly considers them “addressed”.
Our panel now has the question whether Act 10 and 29 altered SORNA so much as to remove it from the control of these decisions. (A decision reached in one case should be applied to those that follow, provided the facts are substantially the same).
Butler declared the SVP assessment procedures unconstitutional. Butler 173 A.3d at 1218. And our Courts are told not to hold SVP hearings nor designate Defendant’s SVP until the General Assembly adopts a Constitutional assessment procedure, and we are told what a Constitutional procedure would be. Acts 10 and 29 did not alter the assessment and designation procedure in any way. Compare 42 PA. C.S.A. section 9799.24 with Act 111, P.L., 446, December 20, 2011, section 12 (cognate section in SORNA when first adopted). Therefore, it no more meets the requirements of Apprendi and Alleyne, as applied in Butler, than the version the Superior Court abnegated. See: Butler, 173 A.3d at 1218. Clearly, a Statutory procedure unaltered from one held to be unconstitutional “clearly, plainly, and palpably” violates the Constitution. See: Felder, 75 A.3d at 516. Thus, this also constitutes a violation of separation of powers. And as well as the equal protections for those that our Courts have denied PCRA petitions based off of an jurisdictional bar.

td 777,

I disagree with your statement. The court in this case did not rule registration was punishment. It ruled that public dissemination of the sex offender registry information was punishment and therefore public dissemination on the state sex offender registry is expo-facto IF your offense occurred PRIOR to PA Acts 10 and 29 were effective.

In PA in certain instances, one can be required to register and all the disabilities and restraints federal, state and local can still apply to you, except that your information would not be made public. Though I would think from a practical point, not being on a public registry will help reduce some of those disabilities and restraints.

Appeal would first go to PA Supreme Court, as this ruling was from PA Superior Court (appellate court). From there, the losing party could appeal to SCOTUS. I hope that is what happens.

I expect the state will lose at PA Supreme, and SCOTUS won’t grant cert if appealed. Factoring in the Speed of Justice, we should know the outcome in 2 to 4 years.