Janice’s Journal: A Model Court Decision

A court in Pennsylvania ruled recently in favor of one registrant and that is a good thing.  The even better thing the court did was to provide the registrant community with a model that can be followed in other state courts.

To be sure, this week’s decision issued by the Court of Common Pleas in Chester County, Pennsylvania, is binding precedent only upon courts in that state.  It is, however, a precedent that can and should be followed by state courts throughout the land.  And it provides a model that lawyers can use in future cases challenging registry laws throughout the nation.

What is so important about this case?  There are at least three important factors.

First, the Court did not accept the false assumption upon which the state’s registration laws were based.  That false assumption is that ALL registrants have a high risk of reoffending sexually.  Instead, the court noted that individuals convicted of a sex offense have a wide range of personal characteristics and circumstances.  Some of those individuals may pose a high risk of reoffending sexually, but most do not. 

The Court also noted that due to this false assumption, everyone convicted of a sex offense carries the burden of a “scarlet letter.”  And it is this burden that compounds isolation and ostracism experienced by registrants as well as diminishes registrants’ chances of successfully reintegrating into society.

The Court reached its conclusion that the state’s registration laws were based upon a false assumption after they did what many courts have refused to do – pay attention to empirical evidence.  This should not be BIG news, but it is.  The court sifted through multiple opinions expressed by experts presented by both the state government and the registrant.  By doing so, the court found TRUTH, that is, between 80 percent to 95 percent of all registrants will not reoffend.

Second, the court looked beyond the state’s hollow assertions that the registry does not punish individuals convicted of a sex offense.  We have heard these assertions before, all the way up to the U.S. Supreme Court.  The state government based its assertions, in large part, upon the fact that registrants had an opportunity to present evidence at trial.

The Court burst the state’s bubble, however, when it correctly pointed out that although individuals required to register were provided an opportunity to go to trial before they were convicted, the same individuals lacked an opportunity to prove for 25 years or longer that they did not pose a current danger to society.  In the Court’s own words, this constituted a process that was both “inadequate and illusory.”

The Court also scolded the state government by reminding them that individuals are presumed innocent until they are found guilty by proof beyond a reasonable doubt.  The Court went on to note that in many trials involving a sex offense, “facts can be murky and most often there are no independent witnesses.”  The Court went to note that trials do not give criminal defendants an effective opportunity to contest future dangerousness.  Those are sweet words from a court and more importantly, the truth of the matter.

After addressing this important issue, the court went to decide that the registry laws in the state of Pennsylvania were not a civil regulatory scheme, but instead constituted punishment.  An important part of that decision was finding that registrants are on “de facto” probation for the entirety of their lives.  For example, they must report address changes, switching schools, purchase of a car, and a new job.  The Court also noted that this information is shared with the public via the Internet.  In summary, the Court determined that these requirements are oppressive and impose affirmative disabilities and restraints upon the state’s registrants.  The Court therefore declared that the state’s registration laws promote the traditional aims of punishment – retribution and deterrence.

Third, this Court sidestepped the binding precedent of Smith v. Doe, decided by the U.S. Supreme Court, that has caused great harm to registrants and their families.  They did so in a clever maneuver by basing their decision not upon the federal constitution, but instead upon the state constitution.  For in the constitution of the state of Pennsylvania there is a recognized right of reputation.  As the Court noted, the existence of government records containing information that might subject a party to negative stigmatization is a threat to that party’s reputation. 

This court decision gives me hope.  I hope it gives you hope, too.  Let’s use this hope to work together in challenging registry laws in every state.  Please know that we must do this important work in increments.  After all, this Pennsylvania court decision was the result of more than five years of litigation.      

The first step toward that goal is to identify all states that have a right of reputation in their state constitutions.  For those will be the easiest states in which to challenge registration laws.  Our next step may be to lobby states to add a right of reputation to their state constitutions.  And when we succeed in doing so, we will be able to challenge registry laws in all 50 states. 

If you agree with the need to eliminate all state registry laws, please consider making a donation to ACSOL today so that we can start this important work.  Online donations can be made on the home page of the ACSOL website at www.all4consolaws.org.  Donations can be mailed to ACSOL at its new address — 2110 K Street, Sacramento, CA 95816.