The state Superior Court has handed down a ruling that put an immediate halt to all court proceedings related to defendants facing sexually violent predator designations.

As the second ruling within several months to call the state’s current sexual offender statute into question, District Attorney John T. Adams said that it’s time to start fresh.”What we need now is a rewrite of our statutory scheme dealing with the sexual offenders registry,” he said.

In an appeal ruling in July, the state Supreme Court found that sexual offender registration requirements are a form of punishment for defendants.Prior to that decision, registration was thought of as a civil consequence of committing a sex offense.But due to that new definition, the state Superior Court said in its ruling Tuesday that the entire framework for then designating sexual offenders as sexually violent predators is unconstitutional.As such, the court placed a moratorium on all sexually violent predator proceedings until state legislators enact a new, constitutional system for sex offender registration.The recent ruling granted an appeal to a Butler County man who was questioning his status for a statutory sexual assault conviction.The designation increased his registration term from 15 years to life, which he claimed violated his constitutional right to protect his reputation.The ruling in July is currently under appeal and Adams, who is also the president of the Pennsylvania District Attorneys Association, said that the new ruling will be appealed in the near future.However, he said that prosecutors throughout the state are now working to create new legislation that will hopefully resolve the issues raised in the rulings.”I do believe that everyone knows that this is an immediate problem,” Adams said, adding that he expects movement on legislation before year’s end.But for now, many of the cases are stuck in limbo with no clear path on how to proceed.”We are reviewing the rulings and there are more questions than answers,” Adams said.For example, he said that his office isn’t sure if the ruling applies to all sexual offender cases or only ones in which a sexually violent predator designation increases the registration term.It also was unclear if it would be applied retroactively or if the moratorium would stand once the ruling is under appeal.”I’m not sure where it will go,” he said.

Constitutionally flawed

The Sexual Offender Registration and Notification Act was enacted in 2012, replacing the prior Megan’s Law system. The act has three levels of registration – 15 years, 25 years or life – that are assigned to specific sexual crimes.

Regardless of the degree of the crime, all individuals convicted of a sexual offense must also be evaluated by the state Sexual Offenders Assessment Board.That board, made up of psychiatrists, psychologists and criminal justice professionals, conducts a 15-factor analysis to determine if the individual meets the criteria to be designated a sexually violent predator.The board then submits that recommendation to a judge.Judges review the recommendation and, when contested, the expert testimony before making the final ruling.In last week’s ruling, the higher court said the final step of the sexually violent predator process is the main issue.In light of the state Supreme Court ruling that registration requirements are a form of punishment, the court said registering as a sexually violent predator is an additional penalty.A title indicates a convict has a mental abnormality or personality disorder that makes him or her likely to engage in predatory sexually violent offenses.It carries lifetime registration, lifetime counseling and active community notification requirements, which are similar to someone who is already required to register for life, but widely considered to be harsher.The ruling then reasoned that since it is an increased punishment, the facts supporting it must be found, beyond a reasonable doubt, by the defendant’s choice of either a judge or a jury, like a trial.Previously, such designations required only “clear and convincing evidence,” a lower burden of proof.The higher court said that since the entire framework is now constitutionally flawed, judges may no longer hold designation hearings, declaring that “there is no longer a legitimate path forward” to resolve these cases.

Problematic from start

The murkiness of the higher court’s ruling played out in at least two cases that came before Berks judges last week, as prosecutors asked for lengthy continuances to determine how to properly move forward.

Defense attorney James M. Polyak said he has four clients awaiting predator evaluations, but due to the ruling, he plans to file motions asking the court to rescind the orders permitting the assessment board to conduct those reviews.”The propriety of the entire evaluation framework is now questionable,” he said.Defense attorney Kevin Feeney said the recent rulings are simply the court acknowledging that the statute has always been a punishment, not merely registration.”The conditions and requirements are so detailed and complicated, I do not know how a person could comply,” he said.Adams agreed that the Sexual Offender Registration and Notification Act and its federally mandated provisions was overreaching and problematic from the start.But he is hopeful that any new legislation will be able to withstand legal and constitutional challenges.”Clearly, I think we are losing sight of the reason for the registry,” he said, “and that is for the protection of the public.”