Before you get too excited, this is an as-applied case, meaning the decision only benefits the person challenging and not everyone on the Pennsylvania registry, but it’s a win nonetheless, and a win on a novel argument, so it’s good news.
A Pennsylvania intermediate court found that SORNA violates an individual’s right to reputation under Article I, Section 1 of the Pennsylvania Constitution by creating an irrebuttable presumption that she poses a high risk of committing additional sexual offenses. The law says, “[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.”, but the Court found that when it came down to the circumstances of this case, it was unjust to consider the defendant as “posing a high risk of committing additional sexual offenses” when she hadn’t actually committed a sexual offense in the first place.
Related
https://reason.com/2020/10/25/pennsylvania-sex-offender-registry-act-unconstitutional-as-applied-to-low-risk-non-sex-offender/
A quote from the article link: “First, the court recognized that being on the registry causes damage to one’s reputation.”
This is a start.
I wonder if California can piggy back on this notion that the registry causes damage to one’s privacy since California’s constitution specifically identifies the right to privacy is an inalienable right as well as the ability to pursue and obtain it. Call it akin to the right to bear arms. Sure, you can lose it, but you can also regain the right.
The first threshold to identify the right to privacy restored is in Section 1203.4: “the court shall thereupon dismiss the accusations or information against the defendant.” The registry is violating this court law as it is using dismissed information as current information in the registry scheme.
….If it saves just one person from the Registry. 👍😁
https://www.carboncourts.com/Opinions/jnanovic/CommonwealthvsGruver.pdf
See, Commonwealth v Gruver (PA 2020), “Pursuant to the ‘irrebuttable presumption doctrine’ for evaluating the constitutionality of a statute, a statutory irrebuttable presumption as to a fact in dispute which consequently encroaches upon an interest protected by the due process clause ‘violates due process if the presumption is deemed not universally true and a reasonable alternative means of ascertaining [the] presumed fact is available’…SORNA’s presumption that all convicted sexual offenders are highly likely to reoffend is not universally true based on studies accepted by the parties which evidence that not every person, or even the majority of persons, convicted of a sexual offense are at high risk of committing another sexual offense.”
The registry protects society from
The monsters; while causing more harm and problems that never existed before these ill conceived laws. Just because something sounds or looks good, doesn’t mean it should be a law. We need a registry for useless lawmakers. Hell the boogeyman aren’t those who have committed sex offenses; it’s the morons that keep pushing these fell good useless laws.
I’ll take it!
What a great victory!
Well, that’s a start. Precedents like this can only help us. It’s another crack in the dam, even if a small one.
Reputation.. dang do I feel it.. every time it comes up in a job interview or with friends. I get sick, depressed.. etc… I’m happy this guy got off! Small victory, but in such tyranny, I’ll take what we can get. Tomorrow I petition for early release from probation. I’ll get to go before a judge with my lawyer in front a full court room, and ask to get off early for a sex offense.. I’m honestly not scared if the judge says yes or no. I’m more scared of all the judgement from the court room. Putting myself in front of everyone… wish me luck.
I’m surprised nobody has ever tried to use Humphries v. LA County (https://caselaw.findlaw.com/us-9th-circuit/1244887.html) in a court challenge. Though it doesn’t outright use the words “irrebuttable presumption” it works off the idea. Isn’t Due Process violated by the inability to get removed earlier than the law says? Humphries seems to say it is. It seems RCs can show that due to being listed “a right or status previously recognized by state law was distinctly altered or extinguished.”
Sad to say everyone but this is not an intermediate court but the “Court of Common Pleas” which is the lowest rung on the Pennsylvania Judicial System. This decision I am sure will go through the appeal process which in Pennsylvania, the next step would be Pennsylvania Superior Court. After that it would go to the Pennsylvania Supreme Court. As you all know, this could take years before a final decision. At least it is a positive for now.
IRREFUTABLE PRESUMPTION
This is a purpose of the standardized plea & waiver of right that also demands a public admission of guilt to the crime in court. Those similarly situated in Connecticut DPS from 03 fell victim to their own choice.
Humphrys is cool and all, but the following is crucial,
“From all we have said, the Humphries have an interest in not being stigmatized by having their names included in a child abuse database that places a tangible burden on legal rights, >>if they have not committed the acts underlying the reports that led to their inclusion.<>due to an incorrect listing on the CACI.<<"
I guess they are only rights if you were not convicted of a crime.
“… protection of the public from this type of offender is a paramount governmental interest.”
This statement is used often and it is criminal against offenders who, once they complete their sentence, ARE ALSO MEMBERS OF THE PUBLIC! Due the same equal protection of the law!
With this statement, and their sex offender laws, the government segregates these ex offenders from being members of the public!
Not just them but by extension, their families as well! It is a deliberate act of inciting violence, democide on their part! CRIMINALS!
https://en.wikipedia.org/wiki/Democide
Here’s more – Reason Magazine: “Pennsylvania Sex Offender Registry Act Unconstitutional as Applied to Low-Risk Non-Sex-Offender”
https://reason.com/2020/10/25/pennsylvania-sex-offender-registry-act-unconstitutional-as-applied-to-low-risk-non-sex-offender/
@Pat, yeah I find it absolutely insane to say that the stated interest in public safety satisfies the rational basis threshold for the law. The court actually stated this in my case and I believe in Smith maybe even. I would have to re-read Smith but I think they stated it as well. If public safety alone meets the threshold for rational basis then we are in serious trouble. Any law can be stated to increase public safety without any proof of said increased safety, therefore any law stating it is for public safety is rational. That is an insane concept and I wish I would have brought it more in the forefront of my case as well. Definitely will be in my state suit when I file it after the tier system takes effect.
“They contend, however, that the Act lacks the necessary regulatory connection because it is not ‘narrowly drawn to accomplish the stated purpose.’ [Citation.] A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act’s nonpunitive purpose is a ‘sham or mere pretext.’” (Smith v. Doe (2003) 538 U.S. 84, 102-103 [155 L.Ed.2d 164, 183, 123 S.Ct. 1140], quoting Kansas v. Hendricks (1997) 521 U.S. 346, 371 [138 L.Ed.2d 501, 117 S.Ct. 2072].)”
“the Act lacks the necessary regulatory connection because it is not ‘narrowly drawn to accomplish the stated purpose.’”
“The imprecision respondents rely upon does not suggest that the Act’s nonpunitive purpose is a ‘sham or mere pretext.’”
This is going to be addressed as well. It is not that it is not just not narrowly tailored it is the fact that the entire scheme and Smith and every case that follows is deciding the issue on the sham or pretext of the non-existent “frightening and High recidivism rates”
Also, I will not be claiming that it is punitive at all but that the laws violate substantive due process for not have a internal mechanism to establish if a person is a risk and at what level before public notification can take place.
Janice or anyone else that can comment:
What would prevent a low-risk level 1 registrant from challenging the courts on these same legal grounds in their home state? Why wouldn’t the same challenge work for other individuals?
Hi all,
Can someone provide an update of what’s happening in Pennsylvania?? Didn’t the State’s Supreme Court rule that the State’s SOR was unconstitutional vis-a-vis both the U.S. and PA Constitutions?? What happened? Where is case that now??
Thanks in advance.