The Pennsylvania Legislature recently enacted HB 631, amending Pennsylvania’s SORNA statute which governs who must register as a sex offender under Megan’s Law, the type of information that must be provided, how often that information must be provided, and for how long an offender must register. HB 631 is the legislature’s response to recent appellate decisions finding various provisions of SORNA unconstitutional. However, HB 631 fails to address many of the issues that led to SORNA being found unconstitutional in the first place, and many of its provisions remain subject to litigation when applied to offenders who were convicted of crimes for acts which were committed prior to December 20, 2012.
Recent Changes in SORNA
Pennsylvania’s Megan’s Law registration scheme has gone through a number of significant changes in the last few years. For example, in 2012, the original SORNA law took effect. SORNA made Pennsylvania’s sex offender registration scheme more punitive by imposing registration requirements on juveniles, increasing the number of offenses which require registration upon conviction, and retroactively increasing the length of the registration period for many people who had already been convicted.
For example, SORNA made M2 Indecent Assault a Tier I Sex Offense requiring 15 years of registration upon conviction. M2 Indecent Assault did not previously require Megan’s Law registration for a first offense. Various provisions in SORNA also attempted to retroactively require registration for people who had already been convicted of Indecent Assault even if they had been convicted prior to SORNA’s enactment.
Since the enactment of the law, Pennsylvania appellate courts have found many of these provisions unconstitutional. For example, courts quickly concluded that requiring people to register as adults for life following juvenile delinquency adjudications was irrational and unconstitutional. More recently, in Commonwealth v. Muniz, the Pennsylvania Supreme Court found that retroactively requiring people to register under SORNA for longer periods of time, for offenses that did not require registration at the time that they were committed, and under more onerous conditions, violates the ex post facto clause of the United States and Pennsylvania Constitutions. The ex post facto clause prohibits the Government from imposing criminal penalties for actions which were not illegal at the time that they were taken. It also prevents the Government from retroactively increasing the punishment for a given crime.
The Pennsylvania Superior Court quickly followed suit in Commonwealth v. Butler, holding that because Megan’s Law registration can be considered criminal punishment, Pennsylvania’s Sexually Violent Predator classification process violates a defendant’s constitutional right to a trial by jury. The SVP procedure violates a defendant's jury trial rights because it allows a judge, instead of a jury, to find that a defendant should be required to register as a Sexually Violent Predator for life. It also allows the judge to make this finding under a clear and convincing evidence standard instead of the beyond a reasonable doubt standard required for a criminal conviction.
The Effect of Muniz and Butler on Pre-2012 Offenders
An important side effect of the Supreme Court’s Muniz decision is that it arguably eliminated the registration requirement completely for anyone who had been convicted of a sex crime for conduct which occurred prior to December 20, 2012. This is because the SORNA statute explicitly repealed the prior Megan’s Law scheme that was in effect at the time. Thus, when the Pennsylvania Supreme Court found that SORNA could not be applied retroactively to people who had been convicted of crimes for conduct which took place prior to the December 20, 2012 enactment, the Court left no alternative registration scheme in place for these offenders. With SORNA unconstitutional for those people and Megan’s Law repealed, even lifetime offenders (such as those convicted of rape or involuntary deviate sexual intercourse) who properly had to register prior to December 20, 2012, would arguably be eligible for removal from the State Police registry. The legislature responded quickly in an attempt to aovid this outcome.
The Legislature’s Response to Muniz and Butler
Concerned that many people would no longer have to register at all, the Pennsylvania Legislature responded by amending the SORNA statute in the hopes of “re-capturing” pre-December 20, 2012 offenders. The act amends SORNA “to address the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the Pennsylvania Superior Court's decision in Commonwealth v. Butler (2017 WL3882445).” It is debatable, however, whether the amendments are constitutional. It is also questionable whether they address the problems identified in Muniz and Butler.
Changes for Post-2012 Registrants
For the most part, the amendments made very few changes to SORNA as applied to offenders who committed the acts for which they must register after December 20, 2012. For example, SORNA no longer requires registration for one offense. A conviction for the interference with custody of children where the defendant is the child’s parent, guardian, or lawful custodian no longer requires registration.
The amendments also created a mechanism by which even Tier III lifetime registrants and Sexually Violent Predators may petition the court for removal from Megan’s Law. Now, a registrant who avoids conviction for any offenses punishable by more than a year for twenty-five years following his or her release from custody may petition to have the registration requirement lifted. A petitioner must prove by clear and convincing evidence that the petitioner is not a threat to others. It is unclear how many petitioners will receive relief under this provision, and it is important to note that even if the Petitioner meets this heavy burden, the court is not required to actually grant the removal petition.
Finally, the new amendments relax the in-person registration requirement for some registrants. An offender who must register more than once a year may register in-person once and by phone for the other registration requirements that year if the offender is compliant with all of the requirements for the first three years of registration and does not get convicted of an offense punishable by more than a year.
Although these changes are relatively minor, they do provide some relief to Tier III and SVP offenders who would otherwise have to register for life with no hope of ever obtaining removal from Megan’s List. It is likely that the legislature included this provision so that the Commonwealth's lawyers could argue that the statute is now less punitive and therefore does not violate the ex post facto clause.
Changes for Pre-2012 Registrants
With respect to registrants who committed the crimes for which they were convicted prior to SORNA’s enactment, the changes primarily seek to decrease the requirements to what they would have been under the old Megan’s Law Scheme. For example, the period of time for which the offender must register has been reduced to what it would have been under the pre-SORNA Megan’s Law. Thus, offenders must either register for ten years or for life, whereas new offenders could have to register for 15 years, 25 years, or for life.
The information that offenders must provide to the State Police continues to be roughly the same. A registrant still must inform the State Police of where they live, work, and go to school. They must all inform the State Police if any of those things change, and the State Police will continue to post that information on the internet and to provide that information to local police departments. The amendments also make it a crime to fail to comply with these requirements, and they make it even more difficult on “transient” offenders who do not have a fixed address.
The most surprising part of the new bill is that the amendments do not change the procedure by which an offender may be classified as a Sexually Violent Predator. An offender may still be found to be a Sexually Violent Predator by the sentencing judge under the clear and convincing evidence standard, and the requirements for Sexually Violent Predators are still essentially the same with the exception that they may petition for removal from the list after 25 years. It is entirely unclear how this re-enactment of the same unconstitutional sentencing scheme will survive appellate review.
The appellate courts have not yet addressed whether the new amendments to SORNA are constitutional. It is likely that there will be numerous challenges both to the legislature’s attempt to retroactively apply the statute to pre-SORNA offenders given that SORNA repealed their original registration requirement and to the continuation of the same procedures for making the Sexually Violent Predator determination. Although appellate decisions may eventually bring relief to thousands of people, the ongoing litigation leaves many people uncertain as to their registration requirements. If you are currently subject to registration requirements, it is important that you continue to register with the State Police as required until the State Police or a court inform you that you no longer have to register. If you believe that you should no longer have to register, you should consult with an experienced criminal defense attorney about the possibility of petitioning the state police or the trial court for removal from Megan’s Law. It is also likely that other issues will arise as attorneys have more time to review the changes in the new bill.
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