PA Supreme Court Revives Sexually Violent Predator Designation

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Butler, reversing the Superior Court and finding Pennsylvania’s scheme for designating some sex offenders as “sexually violent predators” or “SVPs” constitutional. The Court rejected the Superior Court’s prior ruling that the mechanism for finding a defendant to be an SVP was unconstitutional because it allowed a judge to make the decision instead of a jury. This opinion will likely have an immediate and dramatic effect as prosecutors throughout Pennsylvania, many of whom had stopped pursuing the SVP designation in sex offense cases, will likely begin moving to have many defendants classified as sexually violent predators under Pennsylvania’s Megan’s Law. This classification requires lifetime Megan’s Law Registration for most defendants and carries with it a number of other negative consequences.

The Facts of Butler

In Butler, the defendant pleaded guilty to statutory sexual assault and corruption of minors after having sexual intercourse with a 15-year-old girl on approximately 50 occasions. Under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), the defendant was required to undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether he should be designated as an SVP. The SOAB recommended that he be designated an SVP, and the trial court held a hearing on the issue at sentencing. The judge found that the Commonwealth met its burden under the statute of producing clear and convincing evidence that the defendant was a sexually violent predator, and so the judge ordered that the defendant be designated as such. The trial court also imposed a sentence of 12 to 30 months’ incarceration followed by 90 months’ probation.

The defendant filed post-sentence motions, and the trial court denied those motions. He appealed to the Superior Court, and the Superior Court overturned the SVP portion of his sentence. The Superior Court found that Pennsylvania’s procedures for designating SVPs were unconstitutional because they allowed the trial judge to impose the additional punishment of being an SVP by making factual findings that should be made by a jury. Therefore, the Superior Court ruled that the defendant did not have to register as an SVP and that the whole scheme was unconstitutional because it allowed the judge to impose criminal punishment without a jury finding. Due to this ruling, prosecutors throughout Pennsylvania mostly stopped moving for SVP hearings, but the Commonwealth appealed in this case to the Pennsylvania Supreme Court.

What is a sexually violent predator?

The SVP designation is particularly problematic in Pennsylvania both because of the stigma that it entails and because it requires lifetime Megan’s Law registration even for offenses which would otherwise require a shorter registration period such as 15 years or 25 years. Under SORNA, an SVP must appear in person every three months to register and be photographed by the State Police. They must appear in person to report any changes to their registration information. They must submit to the registry their names, addresses, computer IP addresses, phone numbers, social security numbers, employer information, professional licensing information, vehicle information, and birthdates. Failure to comply with the Megan’s Law and sexually violent predator registration requirements is a serious felony.

Once an SVP registers with the State Police, the State Police notify the local police, and the local police must notify the SVP’s victim of the offender’s name, residence, address of employment, and any address at which the SVP is enrolled as a student. Local police must notify neighbors, the local county’s children and youth agency director, local school superintendents, local day-care centers and preschool programs, and local colleges and universities regarding the SVP. This notice must provide the person’s name, address, offense for which the person was convicted, a statement that the person has been designated an SVP, and a photograph of the person.

The offender must also attend monthly counseling sessions in a program approved by the SOAB and is financially responsible for paying for those sessions unless he or she can prove indigence. The offender must verify compliance with the counseling requirements during the quarterly registration, and failure to comply with the counseling requirement is a misdemeanor.

Many of these requirements are far worse than those imposed on other Megan’s Law registrants, particularly than those imposed on Tier I offenders. However, even someone who has been convicted of a Tier I offense can be designated a sexually violent predator.

The Pennsylvania Supreme Court’s Ruling

The Pennsylvania Supreme Court accepted the Commonwealth’s appeal and reversed the ruling of the Superior Court. The Superior Court had ruled that the SVP scheme was unconstitutional because the SVP designation constitutes criminal punishment and the fact-finding necessary to impose criminal punishment must be completed by a jury instead of a judge.

The Supreme Court rejected this finding, holding that despite all of the horrific consequences of SVP registration, the SVP designation is not a criminal punishment but instead an attempt by the legislature to help the offender and avoid re-offending. Because the Court ruled that the designation does not constitute criminal punishment, there is no requirement that a jury make the findings necessary for a person to be labeled a sexually violent predator. The Court also strongly approved of the fact that Pennsylvania did amend the statute to allow for an SVP to petition the trial court for removal from Megan’s Law after 25 years on the list.

This decision is difficult to reconcile with the Supreme Court’s recent decision in Commonwealth v. Muniz in which the Court held that requiring someone to register with Megan’s Law constitutes criminal punishment. Ultimately, the Court has now found that sex offender registration in general constitutes criminal punishment and cannot be imposed ex post facto, but the increased requirements of the SVP designation are not an additional criminal punishment. Therefore, the Court rejected the defendant’s arguments in Butler.

It is still important to note that there are a number of pending appeals regarding Pennsylvania’s Megan’s Law registration scheme and whether it is constitutional to make someone register based solely on the offense of conviction without any individualized fact finding as to whether the person is actually a risk to society. In the short term, it is extremely important that anyone who is charged with a sex offense retain a lawyer with experience in this field as avoiding the SVP designation is absolutely critical given the additional negative consequences that stem from such a finding. Our lawyers have extensive experience defending clients against sex offense charges and in contesting the sexually violent predator designation. We regularly work with some of the best experts in this field to have our clients evaluated and convince prosecutors and judges that they do not need to register for life.

If you need a criminal defense lawyer in Philadelphia, PA, we can help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.