PA: DA to request U.S. Supreme Court review of sex offender decision
Roughly two weeks ago the Pennsylvania Supreme Court deemed the state’s current sex offender registration law to be punishment and ultimately barred by both the state and federal constitutions when applied retroactively.
That decision may now end up under review from the highest court in the country.
Cumberland County District Attorney David Freed said Friday his office would ask the Supreme Court of the United States to review the decision, which was handed down on July 19.
Freed contends the state court was split on whether the state constitution provides protections independent of the federal constitution, leaving the door open for possible review by the U.S. Supreme Court.
Punishment?
In 2012, Pennsylvania updated its sex offender registration law to come in compliance with an expanded federal registration law known as the Sexual Offender Registration and Notification Act.
Roughly 2,000 people who had previously been convicted but not required to register were added to the state registry.
An estimated 4,500 more people saw their registration requirements increase and many were required to register for life, according to the Associated Press.
“We’ve had clients where they’ve had previous registrations of 10 years or less than lifetime registrations and then having to come back and being told ‘you are now either lifetime or you are a 15-year registrant, 25-year registrant, something else,’” Cumberland County Chief Public Defender Michael Halkias said. “There’s been a lot of frustration from clients that it’s unfair that they now have these longer registration periods.”
Individuals on the registry are required to be photographed and submit information including their address, vehicle identification, employment and social media use to state police at regular intervals ranging from once a year to once every three months depending on the offense the person was convicted of.
Registrants are also required to update their record every time that information changes.
Failing to do so can result in a criminal conviction and a prison sentence of several years.
At least 17 people in Cumberland County have been charged with failing to comply with the sex offender registry requirements since 2010, according to an analysis of court records conducted by The Sentinel.
“Our position has always been that it is punishment,” Halkias said. “It’s been very difficult to explain to people why it’s not considered criminal punishment. … I can’t say why they rationalized it that way, other than they could and wanted to.”
The case
The July 19 decision was a win for Halkias’ office, which argued their client Jose Muniz was subject to harsher penalties under the Megan’s Law update than were in place when he was convicted.
Muniz was convicted in 2007 in Cumberland Count of indecent assault of 12-year-old girl, but fled the state prior to sentencing.
He was rearrested and sentenced in 2014. Under SORNA, Muniz was required to be on the sex offender registry for life.
At the time of his conviction, Muniz would have only been required to register for 10 years.
Freed said his office has roughly 90 days to file its appeal with the Supreme Court.
“We believe that should put any action by the State Police regarding registration on hold and have informed them of the same,” Freed said. “Ultimately, what they do is up to them and the Governor’s Office of General Counsel.”
There is no guarantee the U.S. Supreme Court will accept the petition for review.
The high court is deciding if it will take up a similar case from Michigan.
Recidivism
“My understanding is (the registry is) not considered punishment because it is post-sentencing and it is part of public safety,” assistant professor of criminal justice and criminology at Sam Houston State University Brandy Blasko said. “It’s not meant to punish the person, but it’s meant to protect the public. That was the idea, but empirically we know it doesn’t protect the public.”
Blasko, who previously worked in sex offender rehabilitation for the Pennsylvania Department of Corrections, said current policy, like sex offender registries, make individuals less connected to society, which can make them more likely to commit crimes.
“We obviously know from desistance theory that people need to be connected to their communities and feel connected to their communities,” she said. “Not only having a criminal record restricts employment but having the label of sex offender really restricts employment.”
Blasko said much of current sex offender policy is based around the assumption that people convicted of sexual offenses are highly likely to commit more offenses once they are released.
In passing the 2012 update, the Pennsylvania Legislature included language that the “Legislature found that … sexual offenders pose a high risk of committing additional sexual offences, and protection from this type of offender is a paramount government interest.”
Blasko said the notion of high recidivism rates for all of the people on the registry is not true.
A wide-scale study released by the Bureau of Justice Statistics in 2016 looking at inmates who were released from prison found only 5 percent of people convicted of rape went on to be arrested for a new sexual offense within three years of their release.
Between 2013 and 2016, there were more than 300 charged sexual offense cases in Cumberland County.
Less than 2 percent of those cases involved defendants on the state sex offender registry, according to an analysis of court records conducted by The Sentinel.
The concept of high recidivism rates for sexual offenders appears to have had less-than-scientific beginnings.
In a 2016 article, Arizona State University Law professor Ira Ellman found the current legal argument for high recidivism rates comes from a 1986 Psychology Today article.
The article, written by counselor Robert Longo to tout a sex offender treatment program he ran, quipped that up to 80 percent of untreated sex offenders go on to commit new offenses.
Figures from Longo’s article have been cited by the U.S. Supreme Court to uphold previous iterations of sex offender registration laws.
Longo has since disavowed the 80 percent figure and publicly opposed sex offender registries.
In speaking with The Sentinel in 2016, Longo said the 80 percent figure is inaccurate and a “very high estimate.”
He said it was unfortunate that his work has been used to support registries because “those laws did nothing. (Registries) didn’t prevent anything.”
He now places recidivism rates at roughly a quarter of his original estimate.
“People are going to take anything that works to their advantage, or twist a quote, to make it work to their advantage, and I just think it’s unfortunate,” he said.
If this goes through then it is the beginning of the end….once SCOTUS says it IS punishment than states will have to justify imposing punishment on people that have already served their sanctions – no matter how you look at it there is NO justification. It will change the registry from civil to judgement and all those people that did not have the registry as part of their actual adjudication have a case for removal…..
It will fall – as a historian I wish I could see into the future to see how the registry is looked at by those in the future – similar to segregation. It took about 50 years from the SCOTUS decision upholding segregation (Plessy Vs. Ferguson) to Brown Vs. the Board of Education ….
Anything to usurp the Constitution eh Mr District Attorney? Thought these folks were sworn to uphold it even when it is most unpopular to do so?
You really think this collection of old farts aka the US Supreme court will change anything. Nope…the status quo is going to be safe and sound if they get ahold of this case.
What we need is for other states to quickly make the same judgement that the Pennsylvania Supreme Court made so that when and if it gets to the US supreme court they can’t so easily claim it is simply regulatory and not punishment!
The SCOTUS ruled in favor of Packingham
Point well made sir. I used to be in the camp hoping they would hear the case and get rid of the constitutional stain once and for all, but much smarter than I have convinced me the accumulation of lower court rulings is the way to go.
Lee, The Supreme Court is the top Court in the land. If they strike down parts of the registry, it applies in all 50 states.
Pray, Pray, Pray.
My arrest of Indecent Exposure (Adult Victim here) was in 1986 in California. There was no contact, no assault etc. I served 6 mos in jail, 5 years of counseling and NO Registration was required at that time. I remained in CA for 10 years, then moved to Ohio for several years before moving to Florida in 2006. While at work my girlfriend heard a knock on the door and it was the sheriff who then asked her if she knew I was a sex offender. Since this was a 20 year old mistake at that time I never said anything because I felt my time was done and over. They got in touch with me and told me that I was in failure of registration with the sherriff office. I explained to them that this was never a requirement. So long story short I have been having to go through for the past 11 years for a case that is now 31 years old. I have lost many job opportunities, jobs, places to live and the constant down looking from my neighbors. As you know Florida is known for hurricanes. I cant even go to the same shelter as my girlfriend. I have to go to a Sex Offender shelter. When does it stop? Bank robbers, drunk drivers that killed someone etc get to live normal lives. I was told at one point that the requirement to register but after my offense, and should look into this more.
I feel exactly what you are saying! My conviction was 30 years ago, have not been in any trouble with the law since. Still having to go through the stigma of being a sex offender. I live in PA and have for many years now. I was a bit dissappionted when I heard that the Cumberland Co. DA was appealing the case to the US Supreme Court. But after thinking this through, I feel that it could be the best thing that has happened in years. I hope that the US Supreme Court does take the case and that they make the right, common sense decision and rule that ALL registries are punishment. That would take care of all states, not just PA. Then, maybe we would all be able to finally move on with our lives. Instead of trying to exist under these draconian, punitive laws, that do no one any good except for law enforcement, politicians, and the average person that wants to be some kind of hero.
Just a thought here but why isn’t the registry as a whole being challenged as unconstitutional? It is cruel and unusual punishment and violates life, liberty and the pursuit of happiness without due process. You can’t really say that sex offenders really get a fair due process of the law because they are always threatened with harsher penalty if they try to take it any further and to just take plea deals. I might be wrong and off the beaten path but what about the rights of the families that are affected. The laws are designed to create a group of people to be discriminated against and outcast by society. Long ago there was the banishment of the scarlet letter because it was declared cruel and unusual punishment so why are we as a society reverting back to the laws of old and keep piling on punishment after punishment, penalty after penalty? This is bring back segregation among society and it has no place in modern day law. I was reading the statute for Florida and it clearly states that the registration is not a punishment or penalty but it is public safety. The fact that they had to put that in there tells me that they know its punishment and penalty and are trying to skirt the issue and protect themselves. I don’t see where it is a public safety at all and if that is the case then they better start making registries for every drunk driver, murderer, robber, etc as it is a public safety issue… Sorry, I just had to vent. Don’t mean to offend anyone.
In most states where the ex post facto portion of the registry was found to be unconstitutional by a state court they took all those folks off the registry and never sought to go to SCOTUS. I think that was by design because they have to be pretty sure that SCOTUS will find it punishment. So that is a little surprising to me that a DA would want that – I wonder what SCOTUS will decide to do? They HAVE to realize the impact of a case like that.
Looks like Freed waited for the last min to file with SCOTUS He filed on Friday and the PA Supreme Court Prothonotary said they received a call to ask that they wait to hear from SCOTUS Now PSP will drag their feet longer and we will have to sue
There is an old saying that empty barrels make the most noise, there is no doubt that some of the ones who are making all the noise about sex offenders are indeed sex offenders themselves. More and more people are being outed for committing these crimes and not just ordinary people. famous people, people in power, teachers, actors, law enforcement, and law makers. where is it going to end..
I applaud the courts decision nobody knows how it feel to have a relative who can’t stay anywhere can’t keep a job anywhere and his kids being taunted and hating to go to school or out the house 27 years later you are told you are to register and your life changes overnight when you are posted and all your neighbors wake up refusing your good morning and telling their kids they can’t associate with yours cause your parent a sex offender, pissing outside a club and someone in a car with their family saw it now you got a life sentence. You’re looked at like you chopped up someone when it was a drunk misfortune
i am 14 years old my father whiched raise me and my niece s for almost ten years by himself because my mom died when i was 4 in a car crash with all of us was convicted of a sex offense n their is no victim he was talking to a minor after he thought they were an adult on an adult web site and not in any sexual way but he is still paying for it he went to prison for two years n got out still having full custody of me and was doing 3 years probation got violated on a simple technical with 30 days left on his probation now they got him doing 2 more years with gps. n he has been raising me right n hasn’t had the money to fight anything so he can give me the best of everything n all my friends loved him but now he can’t even say hi to them or go to my school functions. the government says they worry about these underage kids bologna because now their making me a victim of their punishment s to my father but he is being n trying to be the best father he can be to me right now. and i can see it hurts him. i would love to create something to help more people like my father n me. i’ll pray for all of u. because nooone looks at the person just the charge