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

Summary from FAC: A Pennsylvania Appeals Court has found that the dissemination of persons who have been convicted of sexual offenses’ information on the internet (Megan’s Law) violates the ex post facto clause of the Constitution for individuals whose offenses pre-date the ordinance.

Pennsylvania’s Supreme Court had a prior landmark decision  (Commonwealth v. Muniz, 164 A.3d 1189 (Pa.2017)) finding similarly, so this new opinion will not likely be groundbreaking, but it will show that the prior findings are being upheld and people in Pennsylvania DO have relief from the public online dissemination of all their information.

Decision

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  1. NorthEastPENN

    So for us less of “Legal Eagles” out here, in a nutshell what does this ruling (decision) amount to. I would assume it is another “Win” for registrants in PA. Will this affect all registrants in PA or only those named?

    Thanks

  2. pat

    Somehow, somewhere along the line, the courts have lost the age old requirements to apply the law that existed on the date of offense that a person is being charged for… I NEVER hear anyone raise this issue anymore. It’s as if no one cares that is the way the sentencing works! Now everyone argues that the law that existed from the date of conviction should apply… WTH people? This needs to be fixed and fast, because they are making changes in their “practice” right there in plain sight, and everyone just tucks tail and rolls with it… Where are the honest lawyers? (That was a joke)

    • David

      @ 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.

      • Tim in WI

        SCOTUS03, Lead by Rehnquist decided it was ‘ civil’ action to indenture convicted human citizens to state’s database properties and their upkeep. All of the ‘ unconstitutional nature’ rests firmly and squarely in the human subservience to “a people’s” machine property. Indentured servitude to state’s property has historically been recognized as acceptable as punishment for a crime as ratified by the 13th. The powers that be have opted to avoid that fact, and have done so for other ” presumed civil uses” of the database machines.

        On youtube, The Joe Rogan Experiece. https://m.youtube.com/watch?v=efs3QRr8LWw.

    • David

      🤗 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! 😠

  3. td777

    The key thing here is that in upholding the prior decision, this reaffirms the position that the registry IS punishment, as that is a key element in whether a law violates ex post facto.

    • Anonymous

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

    • SR

      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.

      • Nondescript

        Correct. Anything imposed post probation or parole is punishment, which is defined as:
        “an authorized imposition of deprivations — of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens “

        They have conveniently circumvented the law by insisting that this civil scheme is a “ “deterrent” for deviant behavior which they define, and for which there is no cure, so that they can eventually turn us all into slaves on their global plantation.
        Thankfully, some judges aren’t having it and aren’t yet compromised.

        • Michael Jacobs

          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.

    • td777

      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.

    • Michael Jacobs

      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.

  4. AJ

    Please petition SCOTUS, please petition SCOTUS, please petition SCOTUS…

    Though this is essentially Muniz revisited and re-applied to Act 10, it still is a wonderful bit of news. The court even said it was simply striking the portion of Act 10 that failed to meet the criteria of Muniz, and also said the other elements do. However, once again a court has found an avenue that manages to put Smith in question, which is *exactly* what we need.

    Something I feel gets missed in all this is that once a court finds a law to ex post facto, it also means the court found the act to be punitive. This matters because it then becomes punishment by legislative act, not the judiciary. This is also known as a Bill of Attainder. The more these things get called ex post facto, the better, even for those convicted after the law’s enactment.

    • CR

      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.

  5. G4Change

    Yet another good ruling from a Pennsylvania court. Seems like the Liberty Bell rings loudest in its home state!

  6. Dave

    This was challenged for re-argument on November 6, 2019.
    We will have to see if a re-challenge is allowed.

    It is very possible since looking at the docket it appears that this was NEVER supposed to be a oral argument and that the state claims they were unprepared.

    We will have to see.

    Opinion is here:

    https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=1566+WDA+2018&dnh=EDlAnEOFyY68hOd9KICxIQ%3d%3d

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