The Dobbs Wire: WIN – Pennsylvania Supreme Court says it’s punishment!
A win! The Pennsylvania Supreme Court just handed down an important ruling concerning the state’s sex offense registry law—yes, it is “punishment” and no, it cannot be applied retroactively. Pennsylvania’s registration statute was already harsh but lawmakers enacted an even harsher version in 2012 and made the new law apply even to those who had been sentenced under the old law. The court took a close look and declared what just about anybody familiar with these 21st century scarlet letter schemes knows – it’s punishment. That’s a key finding as so many courts have refused to reckon with the devastating impacts of registration by claiming those life-wrecking Megan’s Law websites with name, address, photos, and more are just an administrative tracking system. The Pennsylvania Supreme Court went on to hold that piling more punishment on *after* sentencing is unconstitutional. More than 20,000 individuals are required to sign the Pennsylvania registry and an estimated 4,500 are impacted by this decision; one district attorney predicts lots of lawsuits, “numerous numerous numerous challenges.” Congratulations to the man at the center of this case, Jose M. Muniz, and kudos to the many legal eagles involved including Michael Halkias, Timothy Clawges, Linda Hollinger, and Joshua Yohe of the Cumberland County Public Defender’s Office, and all the groups that supported this challenge with friend-of-the-court briefs, especially Pennsylvania Association of Criminal Defense Lawyers and Defenders Association of Philadelphia. Here are reports from the popular press and links to the decision. Aaron J. Marcus, who was deeply involved in this case, writes for Collateral Consequences Resource Center with legal details and analysis, as well as intriguing thoughts about how this decision might impact the Pennsylvania registry law as it is used in the future. –Bill Dobbs, The Dobbs Wire
Associated Press via Philly.com | July 19, 2017
Court: tougher sex offender reporting can’t be retroactive
By Mark Scolforo
Excerpts: The Pennsylvania Supreme Court ruled Wednesday that changes enacted five years ago to toughen reporting requirements under Pennsylvania’s sex offender registration law cannot be applied retroactively.
The high court said Jose M. Muniz, convicted in Cumberland County of indecent assault of a 12-year-old girl, will not have to register for life. At the time Muniz was convicted, his offense called for a 10-year registration period. The 2012 changes to the state law turned that into a lifetime requirement, and required registration for additional crimes. In the lead opinion, Justice Kevin Dougherty said “both the state and offender have an interest in the finality of sentencing that is undermined by the enactment of ever more severe registration laws.”
Cumberland County District Attorney Dave Freed, who lost the decision, said it could produce a large number of appeals by Megan’s Law registrants, arguing the decision also applies to them. Freed predicted the decision “is going to generate numerous, numerous, numerous challenges,” some seeking post-conviction appeals in county court, others in state-level Commonwealth Court, involving state police. MORE:
The Daily Caller | July 19, 2017
Pennsylvania Supreme Court Ruling Could Cut Thousands From Sex Offender Registry
By Anders Hagstrom
The Pennsylvania Supreme Court ruled Wednesday that adding someone to the state’s sex offender registry is a punishment, and therefore cannot be done retroactively.
The case, Pennsylvania v. Muniz, pertained to the Sex Offender Registration and Notification Act (SORNA), which went into effect in Pennsylvania in 2012. Previous sex offense law required certain offenders to register for the list for only 10 years after their conviction. SORNA, however, required many of those same offenders to register for life. As a result, thousands of offenders that had served their 10-year registration requirements were retroactively required to register again. Pennsylvania’s 2017 sex offender registry lists 21,295 people, more than 11,000 of which are Tier III offenders required to register for life.
Pennsylvania argued that being added to the sex offender registry was not a punitive measure and therefore had no conflict with in the United States and Pennsylvania constitutions prohibiting retroactive punishments. The court disagreed. “SORNA’s registration and online publication provisions place a unique burden on the right to reputation, which is particularly protected in Pennsylvania,” the court opinion read.
The court also narrowed the application of SORNA with its 2016 decision in A.S. v Pennsylvania State Police, requiring Pennsylvania to lower more than 1,000Tier III offenders to Tier 1 or 2, which don’t require life registration. Retroactive laws similar to SORNA have been struck down in Ohio, Indiana and Maryland. MORE:
Collateral Consequences Resource Center | July 20, 2017
Big win for sex offenders in PA as registration held punishment
By Aaron J. Marcus
Excerpts: Yesterday, the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. This is a radical shift from prior Pennsylvania and federal law. The decision directly affects roughly 4500 people in addition to Mr. Muniz. This is a big win for registrants and those opposed to the misguided approaches Legislatures have taken to sexual crimes in recent years.
The effect of the decision is to immediately alter the registration terms of thousands of registrants across Pennsylvania who saw their periods of registration increase dramatically on the date SORNA took effect. For those individuals, their periods of registration will likely revert back to the periods they were originally given at the time of their convictions. This means that hundreds if not thousands of people could suddenly find that they have completed their original registration terms and will now be removed from Pennsylvania’s registry altogether.
Finally, the Court says nothing about whether the decision has an effect on SORNA prospectively. However, if the law now says that SORNA is punishment, registrants, attorneys, and the courts will have to take a long hard look at the current statutory scheme and decide whether it can continue to be enforced in its current form, or whether certain protections typically attached to criminal sentences must now apply. Only time will tell how broad this ruling actually is. MORE:
Pennsylvania v. Muniz
Supreme Court of Pennsylvania, Case No. 47 MAP 2016
Majority Opinion filed July 19, 2017
http://www.pacourts.us/assets/opinions/Supreme/out/J-121B-2016oajc%20-%2010317692521317667.pdf?cb=1
Concurring opinion filed July 19, 2017
http://www.pacourts.us/assets/opinions/Supreme/out/J-121B-2016co%20-%2010317692521317673.pdf?cb=1
Dissenting opinion filed July 19, 2017
http://www.pacourts.us/assets/opinions/Supreme/out/J-121B-2016do%20-%2010317692521317662.pdf?cb=1
Now to get some of these wins in Florida.
Okay…so if this is true then how does this not allow a valid challenge to the IML?
It does
so my understanding, iml would only be for for convictions after iml was enacted?
That is incorrect.
IML says someone who is a convicted SO not someone on a registry. Will they still have grounds to restrict your passport if you’re off the reg? Wouldn’t the SCOUS have to rule on it?
This is another win for reason, logic, and most of all the American way. Everyone deserves a second chance. American justice was based on this simple concept.
I will have faith again once ALL states are forced to recognize this and return to the roots of American justice as that is the ONLY thing that made America great!
I hope this use of rational thinking will continue so that those in Florida will be forced to make the changes that are so clearly needed for real justice and not the massive perversion of it they have managed to get away with for decades regarding sex offences!
What do these wins mean for those that were recently convicted if the court deems it as unconstitutional
If you were convicted AFTER the punishment was determined… nothing.
If on January 1st the punishment for a crime is 1 year in prison, and you commit your crime on January 2nd – you get 1 year. If they change the law on February 1st to be 2 years in prison, someone who commits the crime on February 2nd gets 2 years but they cannot go back and change the punishment of the person convicted on January 2nd.
That’s what Ex Post Facto is all about.
The ex post facto pretty much prevents “the punishment” from going backwards and reaching those prior to its enactment. But here is the thing, because it is thus a ” punishment ” going backwards, it pretty much makes the whole thing ” punitive” in effect. If that makes sense. For those who come after its enactment, it has to be attacked now in another way. As an excessive or an unwarranted deprivation of liberty with no due process whatsoever. This is where violations of amendments like the 5th and 14th come to play. Just to give you an example. A regulatory scheme with a punitive effect.
Will there be grounds for non compliance if PSP does not remove 10yr registrants ASAP?
We can only hope that Pa state tries to get to the Supreme Court to reverse this. It could change registry punishments for all 50 states..
This was filed in STATE court, not Federal Court.
I’m pretty sure it’s not a punishment it was intended to protect the public which it was proven that it doesn’t and it’s unconstitutional so I’m not sure why all these idiots think it’s a punishment
Even though it is a punishment it wasn’t intended to be according to the assembly which are lying through their teeth
Agreed, but doesn’t the state still have the option to go to the supreme court, to overturn the state supreme court’s decision?
The SCOTUS can review and exhausted state court decision. So YES, this can be accomplished. There are reasons to and reasons not to pursue this.
For those in PA, this is a win they may be satisfied resting on and would not pursue this further.
It would go in the SCUTS favor and would save the federal government billions to cut this out seeing as though there shilling out all this blackmail money to the states that went with SORNA.
The interesting thing about this ruling by the PA supreme Court is that they included State AND “Federal” sorna to be punishment in the ex post facto sense. This is how I read it and understood it as I’m reading other articles pertaining to it. Maybe I missed something. The Pennsylvania Constitution is a very impressive document and even as powerful as the U.S Constitution itself when it deals with its respective citizens. The rights to ” reputation ” as to be intact and not mess with for its citizens is awe-inspiring and a thing to be envied by other States. I’m actually a bit jealous now of Penn citizens.
Actually, the Pennsylvania Supreme Court held that their state SORNA statute is unconstitutional under both the Pennsylvania Constitution and the United States Constitution. The essence of their holding was that the ex post facto clause of the Pennsylvania Constitution provides greater protections than the ex post facto clause of the United States Constitution. I’m guessing they went to this extra effort to block SCOTUS from considering the case since SCOTUS cannot construe provisions of state constitutions unless they specifically conflict with the United States Constitution. Even if the State of Pennsylvania were to petition SCOTUS for certiorari it’s doubtful that SCOTUS would grant cert. since it could not reverse the decision of the Pennsylvania Supreme Court that PA SORNA violates the Pennsylvania STATE constitution.
Thank you, it makes clear sense.
You know what confuses me about this case and decision? First, what exactly did the court say was punishment? Was it just the public hit list or everything that goes along with it (living restrictions, proximity, etc. etc.)?
Well, in a way it does not really matter to ask my question…If the public registry (and all its parts) is punishment then wouldn’t it have to be officially part of a person’s adjudication? In other words, when a judge rules that a person gets so and so years and then probation etc. which is your punishment wouldn’t it have to include the registry as part of it? So, if it is punishment and was NOT officially in a person’s adjudication then wouldn’t it technically be ex post facto for everyone? Does that make sense? Lol If the registry was not part of a person’s sentence and it IS punishment then isn’t it kind of like imposing punishment (technically says this judge) on only a select group of people without the input of a judge? It is akin to vigilante justice…. sanctioned by the state, town, or city.
I know this is in PA and not FL but it makes me think of my son’s case. When he was sentenced it included X,Y,Z punishment but the registry WAS NOT included in the sentence. As a matter of fact, the judge tried to get the prosecutor office to waive the RSO probation rules and they would not but the prosecutor office could not even tell the judge the difference between RSO probation and regular probation.
I hope this makes sense – as you can tell I was thinking of it every time I woke up last night! Lol So I guess the moral of this rant is this – if the registry IS punishment (and we all know it is) then it has to be adjudicated by a judge or a jury or it becomes inherently unconstitutional?
I have been arguing ex post facto laws since I was convicted in 1987 but it fell on deaf ears. I would not have agreed to my sentence if I knew Registration Laws were coming years later. People looking at these websites have no information concerning the case involved and what lead to their plea.
Not sure how registration is incorporated in a trial but if you take a plea its only brought up at sentencing Nevertheless I don’t think this will change things for people convicted after SORNA because it was on the books. But don’t see how they can get buy still applying it to people convicted before. If the PSP drags their feet they will be subject to civil suits I would say this is pretty much cut and dry.. They will have to go back to ML 2 completely. ML 3 was thrown out multi subject rule.
How will this effect florida? They say it’s not a punishment, but if you forget to register you can bet your life they will put you in jail and add a felony to your record,but it’s not a punishment!
And their registry that supposedly protects the citizens, has done nothing but abuse the children they claim to protect.
It has no bearing on Florida, other than persuasive precedent.
I gather this does not help those who committed a crime in 2015 and sentenced in 2016. Isn’t it continued punishment to not be able to get a job, live in certain areas, not live at home with family and family and offender to be ridiculed and threatened because they are on a registrar. What are we doing for those people? How are we going to help them?
If you committed the crime when the punishment was in effect, you are subject to it.
So, if I was convicted of C.P. in florida in 2003, and move to PENN in 2018, and am not on probation, Would I have to register?