[J-121B-2016] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 47 MAP 2016 : Appellee : Appeal from the Order of the Superior : Court at No. 2169 MDA 2014 dated : August 7, 2015 Affirming the Order of v. : the Court of Common Pleas of : Cumberland County, Criminal Division, : at No. CP-21-CR-0000903-2006 dated JOSE M. MUNIZ, : October 14, 2014. : Appellant : ARGUED: December 6, 2016
Justice Dougherty delivers the Opinion of the Court with respect to Parts I through IV and VII, and announces the Judgment of the Court. The Opinion is joined in full by Justices Baer and Donohue, and by Justices Todd and Wecht with the exception of Parts V and VI. Justice Wecht files a concurring opinion in which Justice Todd joins. Chief Justice Saylor files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE DOUGHERTY DECIDED: July 19, 2017 We granted discretionary review to determine whether Pennsylvania’s Sex
Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as
applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post
facto clauses of the United States and Pennsylvania Constitutions.1 The Superior Court
1 Article I, Section 10 of the United States Constitution provides, in pertinent part: “No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” U.S. CONST., art. I, §10. (continued…) held SORNA’s registration provisions are not punishment, and therefore retroactive
application to appellant, who was convicted of sex offenses prior to SORNA’s effective
date but sentenced afterwards, does not violate either the federal or state ex post facto
clauses. For the following reasons, we reverse and hold: 1) SORNA’s registration
provisions constitute punishment notwithstanding the General Assembly’s identification
of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration
provisions violates the federal ex post facto clause; and 3) retroactive application of
SORNA’s registration provisions also violates the ex post facto clause of the
Pennsylvania Constitution.
I. Procedural History Related to Current Appeal
On February 7, 2007, after a bench trial in Cumberland County, appellant was
convicted of two counts of indecent assault arising out of an incident where he touched
the breasts of his girlfriend’s twelve-year old daughter.2 Sentencing was scheduled for
May 8, 2007, at which time appellant would have been ordered to register as a sex
offender with the Pennsylvania State Police for a period of ten years pursuant to then-
effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired). However, appellant failed
to appear for his sentencing hearing and absconded until he was apprehended on
unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his
(…continued) Article I, Section 17 of the Pennsylvania Constitution provides: “No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” PA. CONST., art. I, §17. 2 See 18 Pa.C.S. §§3126(a)(1) (person is guilty of indecent assault if he has indecent contact with the complainant for purpose of arousing sexual desire in himself or complainant, without complainant’s consent), 3126(a)(7) (complainant less than 13 years of age).
[J-121B-2016] - 2 absence, the General Assembly had replaced Megan’s Law III with SORNA. Under
SORNA, persons convicted of indecent assault of a person less than thirteen years of
age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to
register as sex offenders for the remainder of their lives.3 Accordingly, appellant was
sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime
registration requirements under SORNA. Appellant filed a post-sentence motion
seeking application of the ten-year registration period under Megan’s Law III, which was
the law in place at the time of his offense and conviction, instead of lifetime registration
under SORNA. The court denied appellant’s motion and he appealed to the Superior
Court, claiming retroactive application of SORNA violates the ex post facto clauses of
the United States and Pennsylvania Constitutions, and the reputation clause of the
Pennsylvania Constitution.4
The Superior Court affirmed the ruling of the trial court in a three-page
unpublished memorandum opinion. Commonwealth v. Muniz, No. 2169 MDA 2014,
unpublished memorandum (Pa. Super. filed August 7, 2015). The panel opined
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014), directed its holding “the new
registration regime pursuant to SORNA is constitutional under the Federal and State Ex
Post Facto Clauses.” Muniz, slip op. at 3, quoting Perez, 97 A.3d at 760 (SORNA is not
3 Appellant’s seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13. Had appellant been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration. 4 PA. CONST. art. I §1 (“All men … have certain inherent and indefeasible rights, among which are those of … protecting property and reputation. ...”).
[J-121B-2016] - 3 punitive; retroactive application does not violate federal ex post facto clause).5 The
panel further held appellant waived his reputation clause claim by failing to raise it in his
post-sentence motion.
Appellant filed a petition for allowance of appeal raising two questions regarding
SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:
1) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Federal Constitution?
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania Constitution? This Court granted review of both questions. Commonwealth v. Muniz, 135 A.3d 178
(Pa. 2016).
II. Summary of Arguments and Applicable Standards of Review
Briefly, appellant argues SORNA unconstitutionally increases the length of
registration and notification requirements for sex offenders subject to its retroactive
application. Appellant claims despite the General Assembly’s declaration SORNA is not
to be construed as punitive, the statute’s text and structure make clear the legislative
objective was to punish. Appellant asserts SORNA is so punitive in purpose and effect
that the General Assembly’s intent to deem it civil is undermined. Thus, appellant
claims, SORNA increases punishment for conduct which occurred before its enactment
and such retroactive application violates both federal and state constitutional bans on ex
post facto laws; in doing so, appellant argues the Pennsylvania Constitution provides
5 The panel did not explain that, in Perez, the Superior Court did not actually reach the merits of the state constitutional claim, holding instead it was waived for failure to present an analysis under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). See Perez, 97 A.3d at 760.
[J-121B-2016] - 4 greater protection than the United States Constitution. Appellant argues SORNA is
therefore unconstitutional as applied to someone like him whose conviction predated its
enactment.6
In response, the Commonwealth argues the decision of the United States
Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and an analysis of the factors set
forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), both direct SORNA is not
punishment, and thus there can be no ex post facto violation. The Commonwealth
focuses on the General Assembly’s aim to address the “major public concern” of
recidivism among adult sex offenders and indicates SORNA’s terms are not excessive
given this legislative purpose.7
As we consider the parties’ arguments in more detail below, we recognize there
is a general presumption that all lawfully enacted statutes are constitutional.
6 The Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (hereinafter referred to jointly as PACDL) filed an amicus curiae brief supporting appellant. Amicus briefs in support of appellant were also filed by The Association for the Treatment of Sexual Abusers, Assessment and Treatment Alternatives and the Joseph J. Peters Institute, The Collateral Consequences Resource Center, and The Social Science Scholars; these policy based briefs focused on studies which opined recidivism by sex offenders is overstated and sex offender registration is ineffective and may also be counterproductive. The Pennsylvania District Attorneys Association (PDAA) filed an amicus brief in support of the Commonwealth. 7 The Commonwealth also claims appellant waived his argument that SORNA violates the reputation clause of the Pennsylvania Constitution. We note the Superior Court correctly concluded the issue was waived because it was not raised in appellant’s post- sentence motion, and appellant has not raised an independent reputation clause claim before this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). However, appellant does include reputation-based concerns in his analysis of Pennsylvania’s ex post facto clause, and whether it provides greater protection than its federal counterpart; appellant presented almost identical reputation-based arguments in his Edmunds analysis before the Superior Court as well. To the extent reputation-based concerns support appellant’s claim that SORNA’s provisions are punishment and retroactive application is a violation of Pennsylvania’s ex post facto clause, we consider them only in that limited context.
[J-121B-2016] - 5 Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007). In addition, as this case
presents questions of law, our scope of review is plenary and we review the lower
courts’ legal determinations de novo. Id.
III. Ex Post Facto Laws Generally
Before turning to the history of Pennsylvania sex offender laws and the specific
provisions of SORNA at issue in this appeal, we first explain the general purpose of ex
post facto prohibitions. The central concern in incorporating ex post facto clauses in
both federal and state constitutions was to “assure that federal and state legislatures
were restrained from enacting arbitrary or vindictive legislation” following the American
Revolution. Miller v. Florida, 482 U.S. 423, 429 (1987), citing Calder v. Bull, 3 U.S. 386,
391 (1798). However, as noted by Chief Justice Chase in Calder, the term ex post facto
“had been in use long before the Revolution.” Calder, 3 U.S. at 391. The clauses were
thus also directed at the separate concern, relevant here, that individuals are entitled to
“fair warning” about what constitutes criminal conduct, and what the punishments for
that conduct entail. Miller, 482 U.S. at 430; see also Commonwealth v. Rose, 127 A.3d
794, 805 (Pa. 2015), quoting W AYNE R. LAFAVE, CRIMINAL LAW 116, 121 (5th ed. 2010).
The United States Supreme Court, in Weaver v. Graham, 450 U.S. 24 (1981), succinctly
articulated this idea in stating, “Critical to relief under the Ex Post Facto Clause is not an
individual’s right to less punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond what was prescribed when
the crime was consummated.” Id. at 30. Based on both these concerns, Chief Justice
Chase set out four categories of laws that violate such prohibitions:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and
[J-121B-2016] - 6 receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder, 3 U.S. at 390. Furthermore, “two critical elements” must be met for a criminal or
penal law to be deemed ex post facto: “it must be retrospective, that is, it must apply to
events occurring before its enactment, and it must disadvantage the offender affected
by it.” Weaver, 450 U.S. at 29 (footnote omitted). As such, “[o]nly those laws which
disadvantage a defendant and fall within a Calder category are ex post facto laws and
constitutionally infirm.” Commonwealth v. Young, 637 A.2d 1313, 1318 (Pa. 1993)
(emphasis in original). The ex post facto clauses of the United States and Pennsylvania
Constitutions are implicated here because a holding rendering the effects of SORNA’s
registration requirements punitive would place the statute into the third Calder category:
application of the statute would inflict greater punishment on appellant than the law in
effect at the time he committed his crimes.
IV. History of Pennsylvania Sex Offender Laws, Applicable Case Law, and SORNA
A. History of Pennsylvania Sex Offender Laws Prior to SORNA
In Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II), this Court
provided a history of Pennsylvania’s sex offender registration laws up until the time of
that decision:
In 1995, the General Assembly amended the Sentencing Code by adding Subchapter H, entitled “Registration of Sexual Offenders,” codified at 42 Pa.C.S. §§9791-9799, and generally referred to as “Megan’s Law” (hereinafter, “Megan’s Law I”). Among other things, Megan’s Law I established a procedure for adjudicating certain offenders—namely, those that committed one of the predicate offenses listed in the statute—as “sexually violent predators.” The mandated procedure included a post- conviction, pre-sentence assessment by the Board, followed by a hearing before the trial court. At the hearing, the offender was presumed to be a sexually violent predator and bore the burden of rebutting such presumption by clear and convincing evidence. If the individual was adjudicated a sexually violent predator, he was subjected to an enhanced maximum sentence of life imprisonment for the predicate offense, as well
[J-121B-2016] - 7 as registration and community notification requirements that were more extensive than those applicable to an offender who was not adjudicated a sexually violent predator.
In Commonwealth v. Williams, … 733 A.2d 593 ([Pa.] 1999) (Williams I), this Court struck down the sexually violent predator provisions of Megan’s Law I based upon the conclusion that a finding of sexually violent predator status under that enactment entailed a “separate factual determination, the end result of which is the imposition of criminal punishment,” i.e., increasing the offender’s maximum term of confinement above the statutory maximum for the underlying offense. See id. … at 603. ... Notably, in view of the punitive nature of the increased maximum prison sentence, the Williams I Court invalidated the challenged provisions without reaching the question of whether the enhanced registration and notification requirements constituted criminal punishment. See id. … at 602 n.10.
After Williams I was decided, the General Assembly passed Megan’s Law II, which was signed into law on May 10, 2000. Although the stated legislative policy remained the same as in Megan’s Law I, the General Assembly altered the manner in which an individual convicted of a predicate offense was adjudicated a sexually violent predator. The critical distinction, for present purposes, is that, under Megan’s Law II an offender convicted of an enumerated predicate offense is no longer presumed to be a sexually violent predator. ... Additionally, persons adjudicated to be sexually violent predators are no longer subjected to an automatic increased maximum term of imprisonment for the predicate offense. Instead, they are required to undergo lifetime registration, notification, and counseling procedures; failure to comply with such procedures is penalized by a term of probation or imprisonment.
Under Megan’s Law II, any offender convicted of a predicate offense, whether or not he is deemed a sexually violent predator, must: (1) register his current residence or intended residence with the state police upon release from incarceration, parole from a correctional institution, or commencement of an intermediate punishment or probation; (2) inform the state police within ten days of a change in residence; and (3) register within ten days with a new law enforcement agency after establishing residence in another state. State police officials then forward this data, together with fingerprint and photographic information obtained from the sentencing court to the chief of police of the locality where the offender will reside following his change of address or release from prison. For sexually violent predators, the police chief in turn notifies the individual’s neighbors, as well as day care operators and school officials within the municipality. The data sent to these recipients includes the offender’s name, address, offense, and photograph (if available), as well as the fact
[J-121B-2016] - 8 that he has been determined by a court to be a sexually violent predator, “which determination has or has not been terminated as of a date certain.” The sexually violent predator’s name and address, including any subsequent change of address, is also sent to the victim of the offense, until the victim requests that such notification be terminated.
* * *
In addition to registration upon release from prison and upon changes of address, sexually violent predators must periodically verify their address with the state police. To accomplish this, the state police send a verification form once every three months to the last residence reported. Upon receipt of this form, the sexually violent predator must appear within ten days at any state police station to submit the completed form and be photographed. The Act also requires a sexually violent predator to attend “at least monthly” counseling sessions in a program approved by the Board, and to pay all fees assessed from such sessions, unless he cannot afford them, in which case they are paid by the parole office. The Board monitors compliance with this requirement; the sexually violent predator must also verify such compliance with the state police as part of the quarterly verification process discussed above. Williams II, 832 A.2d at 965-68 (internal citations and footnotes omitted).
The General Assembly made further amendments to Megan’s Law II with the
passage of Act 152 of 2004, commonly referred to as Megan’s Law III, which was
signed into law on November 24, 2004. Commonwealth v. Neiman, 84 A.3d 603, 607
(Pa. 2013). Although this Court struck down that statute on the basis its passage
violated the single subject rule, we recognized Megan’s Law III made the following
substantive legal changes:
(1) established a two-year limitation for asbestos actions[8]; (2) amended the Crimes Code to create various criminal offenses for individuals subject to sexual offender registration requirements who fail to comply; (3) amended the provisions of the Sentencing Code which govern “Registration of Sexual Offenders”; (4) added the offenses of luring and institutional sexual assault to the list of enumerated offenses which require
8 The inclusion of this subsection provided the basis for the Neiman Court’s decision to strike down the statute as being in violation of the single subject rule. Neiman, 84 A.3d at 610-13.
[J-121B-2016] - 9 a 10-year period of registration and established local police notification procedures for out-of state sexual offenders who move to Pennsylvania; (5) directed the creation of a searchable computerized database of all registered sexual offenders (“database”); (6) amended the duties of the Sexual Offenders Assessment Board (“SOAB”); (7) allowed a sentencing court to exempt a lifetime sex offender registrant, or a sexually violent predator registrant, from inclusion in the database after 20 years if certain conditions are met; (8) established mandatory registration and community notification procedures for sexually violent predators; (9) established community notification requirements for a “common interest community”— such as a condominium or cooperative—of the presence of a registered sexually violent predator; (10) conferred immunity on unit owners’ associations of a common interest community for good faith distribution of information obtained from the database; (11) directed the Pennsylvania State Police to publish a list of approved registration sites to collect and transmit fingerprints and photographs of all sex offenders who register at those sites; and (12) mandated the Pennsylvania Attorney General to conduct annual performance audits of state or local agencies who participate in the administration of Megan’s Law, and, also, required registered sex offenders to submit to fingerprinting and being photographed when registering at approved registration sites. Id., 84 A.3d at 606-07 (footnotes omitted), citing 18 Pa.C.S. §4915; 42 Pa.C.S. §§
5524.1, 9792, 9795.1(a)(1), 9795.4, 9795.5, 9796, 9798, 9798.1, 9799, 9799.1, 9799.8.
Megan’s Law III was replaced by SORNA.
B. Case Law Regarding the Constitutionality of Sex Offender Laws
Before reaching the specific provisions of SORNA at issue here, we summarize
the reasoning in two pivotal cases, the analysis of which will frame our discussion
below: the United States Supreme Court’s decision in Smith, and this Court’s decision in
Williams II.
i. Smith v. Doe
In Smith, the United States Supreme Court determined the registration
requirements of Alaska’s Sex Offender Registration Act (the Act), which applied to the
sex-offender plaintiffs despite the fact they were convicted, sentenced, and released
[J-121B-2016] - 10 from prison before its passage, were not retroactive punishment prohibited by the
federal ex post facto clause. Smith, 538 U.S. at 105-06.9 The High Court summarized
the Alaska statute as follows:
The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive. The Act requires any “sex offender or child kidnapper who is physically present in the state” to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is at liberty). Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and postconviction treatment history. He must permit the authorities to photograph and fingerprint him.
If the offender is convicted of a single, nonaggravated sex crime, he must provide annual verification of the submitted information for 15 years. If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender must notify his local police department if he moves. A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution.
The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards are kept confidential. The following information is made available to the public: “the sex offender’s or child kidnapper’s name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements … or cannot be located.” The Act does not specify the means by which the registry
9 The Supreme Court of Alaska later found the retroactive application of the Act unconstitutional under the ex post facto clause of the Alaska state constitution. See Doe v. State, 189 P.3d 999 (Ak. 2008).
[J-121B-2016] - 11 information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet.
Smith, 538 U.S. at 90-91 (internal citations omitted). The High Court noted that,
although it had not previously considered whether a sex offender statute constituted
retroactive punishment forbidden by the federal ex post facto clause, the framework for
the inquiry was well established. Id. at 92.
We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 … (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Ibid., quoting United States v. Ward, 448 U.S. 242, 248-49 … (1980). Because we “ordinarily defer to the legislature’s stated intent,” Hendricks, supra, at 361, “‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 100 (1997), quoting Ward, supra, at 249. Smith, 538 U.S. at 92.
In determining Alaska’s legislature intended to establish a civil, nonpunitive
scheme, the Court looked to the text of the statute where the legislature found “‘sex
offenders pose a high risk of re-offending,’ and identified ‘protecting the public from sex
offenders’ as the ‘primary governmental interest’ of the law.” Id., at 93, citing 1994
Alaska Sess. Laws ch. 41, §1. The Court also looked to Hendricks where it previously
held “an imposition of restrictive measures on sex offenders adjudged to be dangerous
is ‘a legitimate nonpunitive governmental objective and has been historically so
regarded.’” Smith, 538 U.S. at 93, quoting Hendricks, 521 U.S. at 363. The Court
noted the location of the Act’s notification provisions in the state’s health, safety, and
housing code suggested a civil scheme, while the location of the Act’s registration
provisions in the state’s criminal procedure code suggested a penal intent; the Court
stated neither factor was dispositive. Smith, 538 U.S. at 94. The Court concluded the
[J-121B-2016] - 12 Act “does not require the procedures adopted to contain any safeguards associated with
the criminal process,” and led the Court to “infer that the legislature envisioned the Act’s
implementation to be civil and administrative.” Id. at 96. The High Court determined the
statute utilized “distinctly civil procedures” and the Alaska legislature therefore “intended
a civil, not a criminal sanction.” Id. (internal quotations and citations omitted).
The High Court then looked to the factors listed in Mendoza-Martinez as a
framework for determining whether the provisions of the Alaska statute were so punitive
in effect as to negate the legislature’s intention to identify the scheme as civil. Id. at 97.
The Mendoza-Martinez factors are as follows: “[w]hether the sanction involves an
affirmative disability or restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of scienter, whether its
operation will promote the traditional aims of punishment—retribution and deterrence,
whether the behavior to which it applies is already a crime, whether an alternative
purpose to which it may rationally be connected is assignable for it, and whether it
appears excessive in relation to the alternative purpose assigned[.]” Mendoza-
Martinez, 372 U.S. at 168-69 (footnotes omitted).
The High Court first determined the Alaska statute’s notification provisions did
not resemble shaming punishments of the colonial era, which involved more than the
dissemination of information, and included either face-to-face shaming in view of other
citizens or expulsion from the community. Smith, 538 U.S. at 97-98. The Court further
found the Alaska statute involved only the dissemination of accurate information about
an offender’s criminal record, which is already public. Id. The Court noted the fact the
information is available on the internet did not alter its conclusion, as the purpose of the
internet posting was to inform the public rather than shame the offender, and the
website did not allow the public to shame offenders by posting comments. Id. at 99.
[J-121B-2016] - 13 The Court also determined the Act did not impose a physical restraint. Id. at 100.
The Court found the Act did not make offenders unemployable; even in the absence of
this statute, employers could conduct criminal record checks and exclude offenders
from employment and those consequences flowed from the offender’s conviction rather
than the Act’s registration and notification provisions. Id. at 100-01. The Court noted
the argument Alaska’s registration system was parallel to the restraint imposed on those
on probation or supervised release “has some force,” but ultimately rejected it, holding
offenders are “free to move where they wish and to live and work as other citizens, with
no supervision.” Id. at 101. Furthermore, the Court noted although offenders were
required to inform authorities of changes to their registration information, they did not
need to seek permission to make such changes. Id.
Although the State of Alaska conceded its registration statute might deter future
crimes, the Smith Court held this was not enough to find the law punitive because
holding a deterrent purpose automatically renders such sanctions criminal “would
severely undermine the Government’s ability to engage in effective regulation.” Id. at
102, quoting Hudson, 522 U.S. at 105. The Court further held the registration
provisions were not retributive because the duration of the reporting requirement
depended on the crime rather than the risk posed by the offender. Id. The Court
concluded the broad registration categories and corresponding reporting requirements
“are reasonably related to the danger of recidivism, and this is consistent with the
regulatory objective.” Smith, 538 U.S. at 102.
The Court then held “[t]he Act’s rational connection to a nonpunitive purpose is a
‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.”
Id., quoting United States v. Ursery, 518 U.S. 267, 290 (1996). The Court
acknowledged both the lower court and Doe conceded the nonpunitive purpose of
[J-121B-2016] - 14 public safety was valid and rational. Id. at 103. The Court further stated even though
the Act may not have been narrowly drawn to accomplish that public safety purpose, a
“statute is not deemed punitive simply because it lacks a close perfect fit with the
nonpunitive aims it seeks to advance.” Id.
The Court further held the Act was not excessive in its application to all offenders
regardless of their future dangerousness as the registration requirements were minor
and allowed the public to assess risk based on accurate, public information about
offenders’ convictions. Id. at 104. The Court also held the wide dissemination of the
information over the internet was not excessive as the notification system was passive
in that an individual must seek out the information, the website warned against using the
information in a criminal manner, and making the registry available on the internet was
necessary based on the general mobility of the population. Id. at 104-05.
The Court also stated two factors—whether the regulation comes into play only
on a finding of scienter and whether the behavior to which it applies is already a crime—
are of little weight as the Act applied only to past criminal conduct, which is a necessary
starting point for targeting the statutory concern of recidivism. Id. at 105. The Smith
Court then concluded the plaintiffs were unable to show the effects of the Alaska statute
negated the legislature’s intent to establish a civil scheme. The Court held “[t]he Act is
nonpunitive, and its retroactive application does not violate the [federal] Ex Post Facto
Clause.” Id. at 105-06.
ii. Williams II
In Williams II, this Court considered whether the registration, notification, and
counseling requirements of Megan’s Law II, applicable to sexually violent predators,
constituted criminal punishment such that their imposition on the defendants violated
[J-121B-2016] - 15 their rights to due process under the United States and Pennsylvania Constitutions.10
Williams, 832 A.2d at 964. This Court analyzed the statute’s provisions under the same
two-level inquiry used by the U.S. Supreme Court in Smith. Id. at 971. As to the first
question, whether the General Assembly’s intent was to punish, the Williams II Court
determined the statute’s statement of purpose was clear in that its intent was to identify
potential recidivists and avoid recidivism by providing awareness of particular risks to
members of the public and providing treatment to offenders. Id. at 971-72. The Court
stated the statute’s purpose was therefore “not to punish, but to promote public safety
through a civil, regulatory scheme.” Id. at 972.
The Williams II Court then examined the Mendoza-Martinez factors to determine
whether the sanctions are “so punitive as to transform what was clearly intended as a
civil remedy into a criminal penalty.” Id., quoting Ward, 448 U.S. at 249. The Court first
found the registration requirements of Megan’s Law II did not directly impose a
deprivation or restraint upon sexually violent predators as they “remain free to live
where they choose, come and go as they please, and seek whatever employment they
may desire.” Id. at 973, quoting Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir.
2000). Thus, the Court held it could not find the clearest proof the requirements were
“so onerous as to constitute an affirmative disability or restraint.” Williams, 832 A.2d at
975. The Court further found it was not clear the notification requirements of Megan’s
Law II were analogous to public shaming, or other historical forms of punishment, as
“the disclosure of factual information concerning the local presence of a potentially
10 Williams II arose out of the Commonwealth’s appeal from two orders of the Court of Common Pleas of Erie County, which struck down certain portions of Megan’s Law II as violative of the due process clauses of the United States and Pennsylvania Constitutions; the ex post facto clauses were not at issue. However, the central question in Williams II, as in this appeal, was whether certain provisions of Megan’s Law II constituted punishment. Williams II, 832 A.2d at 968-69.
[J-121B-2016] - 16 harmful individual is aimed, not at stigmatizing that individual, but allowing potentially
vulnerable members of the public to avoid being victimized.” Id. at 976.
The Court then found applicability of Megan’s Law II does not depend only upon
a finding of scienter since some predicate offenses can be committed whether or not the
defendant is aware his conduct is criminal, e.g., the statute applies to the crime of
sexual abuse of children, where the defendant may be convicted despite the good faith
belief the child was over eighteen years of age. Id. at 977-78. The Williams II Court
further found since there was a substantial period of incarceration attached to the
predicate offenses of rape and involuntary deviate sexual intercourse,11 the prospects of
registration and notification would have little deterrent effect upon a sexually violent
predator. Id. at 978. The Court also found the measures were not retributive as they do
not “require [a sexually violent predator to] ‘pay his debt to society,’ through the
impositions of fines, restitution, or confinement.” Id., quoting Williams v. Illinois, 399
U.S. 235, 261 (1970) (Harlan, J., concurring).
The Williams II Court found the crucial determination of sexually violent predator
status under Megan’s Law II was not based upon the particular criminal conduct or
crime at issue, but instead upon a separate finding of mental abnormality or personality
disorder. Williams II, 823 A.2d at 978. The Court recognized, however, that whether
the behavior to which Megan’s Law II applies is already a crime is of little significance in
evaluating whether or not the statute is punitive because “application to past criminal
conduct is ‘a necessary beginning point [where] recidivism is the statutory concern.’” Id.
at 979, citing Smith, 538 U.S. at 105.
11 18 Pa.C.S. §§3121, 3123.
[J-121B-2016] - 17 Additionally the Court found the sixth Mendoza-Martinez factor, whether the act
has a rational connection to a nonpunitive purpose, “is a ‘[m]ost significant’ factor in our
determination that the statute’s effects are not punitive.” Id. at 979, quoting Smith, 538
U.S. at 102. The Court noted there are “grave concerns over the high risk of recidivism
among convicted sex offenders,” id. at 979, quoting Smith, 538 U.S. at 103, and it was
significant that most of the notification provisions in Megan’s Law II pertained to
neighbors of sexually violent predators, social service agencies, schools, and day care
centers. Id. The Court found concerns about information being placed on the internet
to be unwarranted because Megan’s Law II information was available to the public only
upon request. Id. at 980. The Court distinguished Megan’s Law II from New Jersey’s
sex offender statute which specifically authorized online dissemination of offender
information. Id., citing NJ. STAT. ANN. §§2C:7-12-2C:7-14. The Court concluded the
“dissemination of sexually violent predator information to individual members of the
public, upon request, appear[ed] to be a reasonable means chosen by the Legislature to
serve the legitimate government interest in providing persons who may be affected by
the presence of a sexually violent predator with the information they need to protect
themselves[.]” Id. at 981.
Finally, the Court determined Megan’s Law II’s registration, verification, and
counseling requirements were not sufficiently onerous to be considered punishment
based upon alleged excessiveness. Id. at 982. Although the Court conceded it was
“troubling” that the requirements last for the entire lifetime of the sexually violent
predator, and the legislature could avoid excessiveness claims by allowing a sexually
violent predator to invoke judicial review to demonstrate he no longer poses a
substantial risk, the Court recognized the record did not include any information
concerning the successful treatment of sexually violent predators. Id. at 982-83.
[J-121B-2016] - 18 Accordingly, the Williams II Court established the registration, notification, and
counseling requirements imposed on sexually violent predators under Megan’s Law II
were not punitive; thus their imposition did not violate the offenders’ due process rights.
Id. at 984.12
C. SORNA
The General Assembly enacted SORNA in response to the federal Adam Walsh
Child Protection and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§16901-
16991,13 which mandates that states impose on sex offenders certain tier-based
registration and notification requirements in order to avoid being subject to a penalty,
i.e., the loss of federal grant funding.14 In re J.B., 107 A.3d 1, 3 (Pa. 2014).
Accordingly, Pennsylvania’s General Assembly sought to comply with this federal
legislation by providing for “the expiration of prior registration requirements, commonly
12 The Williams II Court also weighed whether Megan’s Law II’s penalties for non- compliance, which subjected sexually violent predators to a possible term of life imprisonment, constituted punishment. Williams II, 832 A.2d at 985. The Court found these penalties must be considered punitive and unconstitutional as the new offense proceeds “directly from the Act’s enforcement provisions” and “such measures are manifestly in excess of what is needed to ensure compliance[.]” Id. at 985-86. 13 The federal regime is also referred to as the “Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Program,” 42 U.S.C. §16902, or more simply as “federal SORNA.” See, e.g., United States v. Roberson, 752 F. 3d 517, 518 (1st Cir. 2014); Commonwealth v. Nase, 104 A.3d 528, 532 (Pa. Super. 2014). 14 The federal statute provides: “For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).” 42 U.S.C. §16925(a).
[J-121B-2016] - 19 referred to as Megan’s Law [III], 42 Pa.C.S. §§9791-9799.9, as of December 20, 2012,
and for the effectiveness of SORNA on the same date.” Id.
The purposes of SORNA, as stated by the General Assembly, are as follows:
(1) To bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006 …
(2) To require individuals convicted or adjudicated delinquent of certain sexual offenses to register with the Pennsylvania State Police and to otherwise comply with this subchapter if those individuals reside within this Commonwealth, intend to reside within this Commonwealth, attend an educational institution inside this Commonwealth or are employed or conduct volunteer work within this Commonwealth.
(3) To require individuals convicted or adjudicated delinquent of certain sexual offenses who fail to maintain a residence and are therefore homeless but can still be found within the borders of this Commonwealth to register with the Pennsylvania State Police.
(4) To require individuals who are currently subject to the criminal justice system of this Commonwealth as inmates, supervised with respect to probation or parole or registrants under this subchapter to register with the Pennsylvania State Police and to otherwise comply with this subchapter. To the extent practicable and consistent with the requirements of the Adam Walsh Child Protection and Safety Act of 2006, this subchapter shall be construed to maintain existing procedures regarding registration of sexual offenders who are subject to the criminal justice system of this Commonwealth.
(5) To provide a mechanism for members of the general public to obtain information about certain sexual offenders from a public Internet website and to include on that Internet website a feature which will allow a member of the public to enter a zip code or geographic radius and determine whether a sexual offender resides within that zip code or radius.
(6) To provide a mechanism for law enforcement entities within this Commonwealth to obtain information about certain sexual offenders and to allow law enforcement entities outside this Commonwealth, including those within the Federal Government, to obtain current information about certain sexual offenders.
[J-121B-2016] - 20 42 Pa.C.S. §9799.10. Furthermore, the General Assembly expressed the legislative
findings and declaration of policy supporting SORNA as follows:
(a) Legislative findings.— The General Assembly finds as follows:
(1) In 1995 the General Assembly enacted the act of October 24, 1995 (1st Sp. Sess. P.L. 1079, No. 24), commonly referred to as Megan’s Law. Through this enactment, the General Assembly intended to comply with legislation enacted by Congress requiring that states provide for the registration of sexual offenders. The Federal statute, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Public Law 103-322, 42 U.S.C. 14071 et seq.), has been superseded by the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 190-248, 120 Stat. 587).
(2) This Commonwealth’s laws regarding registration of sexual offenders need to be strengthened. The Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increased measure of protection to the citizens of this Commonwealth.
(3) If the public is provided adequate notice and information about sexual offenders, the community can develop constructive plans to prepare for the presence of sexual offenders in the community. This allows communities to meet with law enforcement to prepare and obtain information about the rights and responsibilities of the community and to provide education and counseling to residents, particularly children.
(4) Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.
(5) Sexual offenders have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.
(6) Release of information about sexual offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
[J-121B-2016] - 21 (7) Knowledge of whether a person is a sexual offender could be a significant factor in protecting oneself and one’s family members, or those in care of a group or community organization, from recidivist acts by such offenders.
(8) The technology afforded by the Internet and other modern electronic communication methods makes this information readily accessible to parents, minors, and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk.
(b) Declaration of policy.— The General Assembly declares as follows:
(1) It is the intention of the General Assembly to substantially comply with the Adam Walsh Child Protection and Safety Act of 2006 and to further protect the safety and general welfare of the citizens of this Commonwealth by providing for increased regulation of sexual offenders, specifically as that regulation relates to registration of sexual offenders and community notification about sexual offenders.
(2) It is the policy of the Commonwealth to require the exchange of relevant information about sexual offenders among public agencies and officials and to authorize the release of necessary and relevant information about sexual offenders to members of the general public as a means of assuring public protection and shall not be construed as punitive.
(3) It is the intention of the General Assembly to address the Pennsylvania Supreme Court’s decision in Commonwealth v. Neiman, [84 A.3d 603] (Pa. 2013), by amending this subchapter in the act of March 14, 2014 (P.L. 41, No. 19). 42 Pa.C.S. §9799.11(a)-(b).
SORNA’s registration provisions are applicable to, inter alia, the following
individuals: (1) those convicted of a sexually violent offense,15 on or after the effective
date of SORNA, who are residents of Pennsylvania, employed in Pennsylvania,
students in Pennsylvania or transients; (2) those who are inmates, on or after the
15 A sexually violent offense is defined as “[a]n offense specified in section 9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II or Tier III sexual offense.” 42 Pa.C.S. §9799.12.
[J-121B-2016] - 22 effective date of SORNA, in state or county prisons as a result of a conviction for a
sexually violent offense; (3) those who, on or after the effective date of SORNA, are
inmates in a federal prison or are supervised by federal probation authorities as a result
of a sexually violent offense and have a residence in Pennsylvania, are employed in
Pennsylvania, are students in Pennsylvania or transients; and, pertinent to this appeal,
(4) those who were required to register under previous versions of Megan’s Law and
had not yet fulfilled their registration period as of the effective date of SORNA. 42
Pa.C.S. §9799.13.
SORNA classifies offenders and their offenses into three tiers. 42 Pa.C.S.
§9799.14. Those convicted of Tier I offenses are subject to registration for a period of
fifteen years and are required to verify their registration information and be
photographed, in person at an approved registration site, annually. 42 Pa.C.S.
§9799.15(a)(1), (e)(1).16 Those convicted of Tier II offenses are subject to registration
16 The Tier I offenses enumerated in SORNA are as follows: 18 Pa.C.S. §2902(b) (relating to unlawful restraint); 18 Pa.C.S. §2903(b) (relating to false imprisonment); 18 Pa.C.S. §2904 (relating to interference with custody of children); 18 Pa.C.S. §2910 (relating to luring a child into a motor vehicle or structure); 18 Pa.C.S. §3124.2(a) (relating to institutional sexual assault); 18 Pa.C.S. §3126(a)(1) (relating to indecent assault); 18 Pa.C.S. §6301(a)(1)(ii) (relating to corruption of minors); 18 Pa.C.S. §6312(d) (relating to sexual abuse of children); 18 Pa.C.S. §7507.1 (relating to invasion of privacy); 18 U.S.C. §1801 (relating to video voyeurism); 18 U.S.C. §2252(a)(4) (relating to certain activities relating to material involving the sexual exploitation of minors); 18 U.S.C. §2252A (relating to certain activities relating to material constituting or containing child pornography); 18 U.S.C. §2252B (relating to misleading domain names on the internet); 18 U.S.C. §2252C (relating to misleading words or digital images on the internet); 18 U.S.C. §2422(a) (relating to coercion and enticement); 18 U.S.C. §2423(b) (relating to transportation of minors); 18 U.S.C. §2423(c) (relating to engaging in illicit sexual conduct in foreign places); 18 U.S.C. §2424 (relating to filing factual statement about alien individual); 18 U.S.C. §2425 (relating to use of interstate facilities to transmit information about a minor); a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth; an attempt, conspiracy or solicitation to commit any of the above offenses; and a conviction for a sexual offense in another jurisdiction or foreign country (continued…)
[J-121B-2016] - 23 for a period of twenty-five years and are required to verify their registration information
and be photographed, in person at an approved registration site, semi-annually. 42
Pa.C.S. §9799.15(a)(2), (e)(2).17
Those convicted of Tier III offenses are subject to lifetime registration and are
required to verify their registration information and be photographed, in person at an
approved registration site, quarterly. 42 Pa.C.S. §9799.15(a)(3), (e)(3). The Tier III
offenses enumerated in SORNA—including the crime of which appellant was convicted,
indecent assault where the individual is less than thirteen years of age—are as follows:
(1) 18 Pa.C.S. §2901(a.1) (relating to kidnapping).
(2) 18 Pa.C.S. §3121 (relating to rape).
(3) 18 Pa.C.S. §3122.1(b) (relating to statutory sexual assault).
(…continued) that is not set forth in this section, but nevertheless requires registration under a sexual offender statute in the jurisdiction or foreign country. 42 Pa.C.S. §9799.14(b). 17 The Tier II offenses enumerated in SORNA are as follows: 18 Pa.C.S. §3011(b) (relating to trafficking in individuals); 18 Pa.C.S. §3122.1(a)(2) (relating to statutory sexual assault); 18 Pa.C.S. §3124.2(a.2) and (a.3) (relating to institutional sexual assault in schools or child care centers); 18 Pa.C.S. §3126(a)(2), (3), (4), (5), (6) or (8) (relating to indecent assault when victim is over 13 years of age); 18 Pa.C.S. §5902(b.1) (relating to prostitution and related offenses); 18 Pa.C.S. §5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to obscene and other sexual materials and performances); 18 Pa.C.S. §6312(b) and (c); 18 Pa.C.S. §6318 (relating to unlawful contact with minor); 18 Pa.C.S. §6320 (relating to sexual exploitation of children); 18 U.S.C. §1591 (relating to sex trafficking of children by force, fraud or coercion); 18 U.S.C. §2243 (relating to sexual abuse of a minor or ward); 18 U.S.C. §2244 (relating to abusive sexual conduct) where the victim is 13 years of age or older but under 18 years of age; 18 U.S.C. §2251 (relating to sexual exploitation of children); 18 U.S.C. §2251A (relating to selling or buying children); 18 U.S.C. §2252(a)(1), (2) or (3); 18 U.S.C. §2260 (relating to production of sexually explicit depictions of a minor for importation into the United States); 18 U.S.C. §2421 (relating to transportation generally); 18 U.S.C. §2422(b); 18 U.S.C. §2423(a); a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth; and an attempt, conspiracy or solicitation to commit any of the above offenses. 42 Pa.C.S. §9799.14(c).
[J-121B-2016] - 24 (4) 18 Pa.C.S. §3123 (relating to involuntary deviate sexual intercourse).
(5) 18 Pa.C.S. §3124.1 (relating to sexual assault).
(6) 18 Pa.C.S. §3124.2(a.1) [relating to institutional sexual assault].
(7) 18 Pa.C.S. §3125 (relating to aggravated indecent assault).
(8) 18 Pa.C.S. §3126(a)(7) (relating to indecent assault [of victim under 13 years of age]).
(9) 18 Pa.C.S. §4302(b) (relating to incest).
(10) 18 U.S.C. §2241 (relating to aggravated sexual abuse).
(11) 18 U.S.C. §2242 (relating to sexual abuse).
(12) 18 U.S.C. §2244 [abusive sexual contact] where the victim is under 13 years of age.
(13) A comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth.
(14) An attempt, conspiracy or solicitation to commit an offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13).
(15) (Reserved).
(16) Two or more convictions of offenses listed as Tier I or Tier II sexual offenses. 42 Pa.C.S. §§9799.14(d).
SORNA also establishes a statewide registry of sexual offenders to be created
and maintained by the state police. 42 Pa.C.S. §9799.16(a). The registry contains
information provided by the sexual offender, including: names and aliases, designations
used by the offender for purposes of routing or self-identification in internet
communications, telephone numbers, social security number, addresses, temporary
habitat if a transient, temporary lodging information, passport and documents
establishing immigration status, employment information, occupational and professional
[J-121B-2016] - 25 licensing information, student enrollment information, motor vehicle information, and
date of birth. 42 Pa.C.S. §9799.16(b). The registry also contains information from the
state police, including the following: physical description of the offender, including a
general physical description, tattoos, scars and other identifying marks, text of the
statute defining the offense for which the offender is registered, criminal history
information, current photograph, fingerprints, palm prints and a DNA sample from the
offender, and a photocopy of the offender’s driver’s license or identification card. 42
Pa.C.S. §9799.16(c).
Not only does SORNA establish a registry of sexual offenders, but it also directs
the state police to make information available to the public through the internet. 42
Pa.C.S. §9799.28. The resulting website “[c]ontains a feature to permit a member of
the public to obtain relevant information for an [offender] by a query of the internet
website based on search criteria including searches for any given zip code or
geographic radius set by the user.” 42 Pa.C.S. §9799.28(a)(1)(i). The website also
“[c]ontains a feature to allow a member of the public to receive electronic notification
when [an offender] provides [updated] information [and also allows] a member of the
public to receive electronic notification when [an offender] moves into or out of a
geographic area chosen by the user.” 42 Pa.C.S. §9799.28(a)(1)(ii). The Pennsylvania
website must coordinate with the Dru Sjodin National Sex Offender Public Internet
Website (https://www.nsopw.gov) and must be updated within three business days of
receipt of required information. 42 Pa.C.S. §9799.28(a)(1)(iii), (iv).
In addition to the offender’s duty to appear at an approved registration site
annually, semi-annually, or quarterly, depending upon the tier of their offense, all
offenders are also required to appear in person at an approved registration site within
three business days of any changes to their registration information including a change
[J-121B-2016] - 26 of name, residence, employment, student status, telephone number, ownership of a
motor vehicle, temporary lodging, e-mail address, and information related to
professional licensing. 42 Pa.C.S. §9799.15(g). Offenders must also appear in person
at an approved registration site within twenty-one days in advance of traveling outside
the United States and must provide dates of travel, destinations, and temporary lodging.
42 Pa.C.S. §9799.15(i). Furthermore, transients, i.e. homeless individuals, must appear
in person monthly until a residence is established. 42 Pa.C.S. §9799.15(h)(1).
Offenders who fail to register, verify their information at the appropriate time, or provide
accurate information are subject to prosecution and incarceration under 18 Pa.C.S.
§4915.1 (failure to comply with registration requirements). 42 Pa.C.S. §9799.21(a).
V. Federal Ex Post Facto Claim
We lead with appellant’s federal claim in part because we recognize the General
Assembly enacted SORNA in response to federal legislation. We also recognize the
United States Supreme Court’s decision in Smith—which arose out of a federal ex post
facto challenge—guides our analysis. The United States Constitution provides: “No
State shall ... pass any … ex post facto Law. ...” U.S. CONST. art I §10. Our decision
regarding violation of this clause depends on a determination of whether SORNA’s
retroactive application to appellant constitutes punishment. Accordingly, we apply the
two-part analysis employed in Smith and Williams II. We first consider whether the
General Assembly’s “intent was to impose punishment, and, if not, whether the statutory
scheme is nonetheless so punitive either in purpose or effect as to negate the
legislature’s non-punitive intent.” Williams II, 832 A.2d at 971. If we find the General
Assembly intended to enact a civil scheme, we then must determine whether the law is
punitive in effect by considering the Mendoza-Martinez factors. Id. at 972. We
recognize only the “clearest proof” may establish that a law is punitive in effect. Lee,
[J-121B-2016] - 27 935 A.2d at 876-77. Furthermore, in determining whether a statute is civil or punitive,
we must examine the law’s entire statutory scheme. Smith, 538 U.S. at 92.
A. Intent of General Assembly
Appellant contends although SORNA’s stated purpose is to protect the public,
the real intent of the General Assembly is to punish offenders. Appellant’s Brief at 9.
Appellant buttresses this argument by claiming SORNA’s statement of purpose
implicates “sexual offenders” who are classified solely by their criminal record rather
than the class of “sexually violent predators” to whom the former Megan’s Law statutes
applied, and which required an individualized determination of SVP status. Id. at 11.
Appellant also points out SORNA is entirely codified under the sentencing section of
Pennsylvania’s Crimes Code. Id. at 12-13. Finally, appellant argues, SORNA vests
administrative authority, not with a public safety department, but with the Pennsylvania
State Police, a traditional enforcer of criminal laws, and failure to comply with SORNA
results in arrest. Id. at 13-14.
The Commonwealth concedes SORNA is broader in application than previous
Megan’s Law statutes, but nevertheless insists the statutes do not differ in purpose, as
SORNA explicitly provides the registration requirements shall not be construed as
punitive. Commonwealth’s Brief at 15-16, citing 42 Pa.C.S. §9799.11(b)(2). The
Commonwealth further contends since the statutory language regarding purpose is
unambiguous further interpretation of legislative intent should be avoided. Id. at 16.
“In applying the first element of this test, the sole question is whether the General
Assembly’s intent was to punish.” Williams II, 823 A.2d at 971. This is a question of
statutory construction and “[w]e must consider the statute’s text and its structure to
determine the legislative objective.” Smith, 538 U.S. at 92, citing Flemming v. Nestor,
[J-121B-2016] - 28 363 U.S. 603, 617 (1960). Furthermore, “considerable deference must be afforded to
the intent as the legislature has stated it.” Id. at 93. The General Assembly specifically
stated SORNA “provides a mechanism for the Commonwealth to increase its regulation
of sexual offenders in a manner which is nonpunitive but offers an increased measure of
protection to the citizens of this Commonwealth.” 42 Pa.C.S §9799.11(a)(2). The
statute further states “the exchange of relevant information about sexual offenders ...
[is] a means of assuring public protection and shall not be construed as punitive.” 42
Pa.C.S. §9799.11(b)(2). Furthermore, the first listed purpose of SORNA is “[t]o bring
the Commonwealth into substantial compliance with the [federal] Adam Walsh Child
Protection and Safety Act of 2006.” 42 Pa.C.S. §9799.10(1). Nothing in the expressed
purpose, legislative findings, or declaration of policy of SORNA explicitly states the
legislature intended the law to do anything other than create a remedial civil scheme to
comply with federal legislation and protect the public.
At the same time, we recognize the following aspects of SORNA are troubling
and actually cast doubt on the stated legislative intent: the act encompasses a much
broader class of offenders than Megan’s Law II, and includes relatively minor offenses
within its net; the act is codified within the sentencing section of the Crimes Code; and
the acts vests regulatory authority with the state police. However, we note the fact
SORNA encompasses a broad class of offenders is a reflection of the legislature’s
intent to comply with federal sex offender laws for funding purposes. Furthermore,
Megan’s Law II was also codified completely within the Crimes Code and also vested
regulatory authority in the state police. As such, we recognize the General Assembly’s
intent in enacting SORNA apparently was twofold: to comply with federal law; and, as
we stated in Williams II, “not to punish, but to promote public safety through a civil,
regulatory scheme.” Williams II, 832 A.2d at 972.
[J-121B-2016] - 29 B. Mendoza-Martinez Factors
As we have determined the intent of the General Assembly was to enact a civil
scheme, we now conduct an analysis of the Mendoza-Martinez factors to determine
whether SORNA is sufficiently punitive in effect to overcome the General Assembly’s
stated nonpunitive purpose. Williams II, 832 A.2d at 971.
i. Whether the Statute Involves an Affirmative Disability or Restraint
Appellant argues this factor weighs in favor of finding SORNA punitive as
SORNA differs from the Alaska statute upheld in Smith by requiring quarterly in-person
appearances and in-person appearances for any updates to an offender’s information.
Appellant contends even if he never changes his name, residence, employment, phone
number, car, or e-mail address, or goes on vacation, he still must appear a minimum of
100 times over twenty-five years, and for the rest of his life. Appellant’s Brief at 18,
citing 42 Pa.C.S. §9799.15. PACDL contends not only does SORNA impose major,
direct disabilities and restraints such as in-person reporting and updating requirements
that were not present in the statutes analyzed in Smith or Williams II, but it also imposes
extraordinary secondary disabilities in finding and keeping housing, employment, and
schooling, traveling out of state, and increases the likelihood the offender may be
subject to violence and adverse social and psychological impacts. PACDL’s Brief at 43-
45.
The Commonwealth responds by arguing although it is true the Alaska statute
did not contain in-person reporting requirements, the Smith Court gave great weight to
the fact Alaska’s statute did “not restrain activities sex offenders may pursue but leaves
them free to change jobs or residences.” Commonwealth’s Brief at 19, quoting Smith,
538 U.S. at 100. The Commonwealth further argues our Superior Court, in
[J-121B-2016] - 30 Commonwealth v. Woodruff, 135 A.3d 1045 (Pa. Super. 2016), noted the Williams II
Court found monthly counseling sessions, which seem more onerous than SORNA’s
quarterly in-person reporting requirements, did not impose an affirmative disability or
restraint under Megan’s Law II. Commonwealth’s Brief at 20, citing Woodruff, 135 A.3d
at 1052-53. Although the Commonwealth acknowledges the Woodruff panel ultimately
found this factor weighed in favor of finding SORNA’s scheme to be punitive, the
Commonwealth nevertheless contends this Court, in light of its prior holding regarding
monthly counseling sessions in Williams II, should find this factor to weigh in favor of
determining SORNA is nonpunitive. Commonwealth’s Brief at 22.
We are substantially aligned with appellant as to this factor. The Smith Court
found the Alaska statute did not involve an affirmative disability or restraint partly due to
the fact it does not require in-person updates. Smith, 538 U.S. at 102. We hold this
distinction from SORNA is important. See, e.g., Perez, 97 A.3d at 753-54 (noting
Alaska statute did not require in-person updates and distinguishing SORNA where
Perez, a Tier II SORNA offender, was affirmatively required to report fifty times over
twenty-five-year period). As stated, appellant, who was retroactively required to register
as a Tier III offender under SORNA, is now required to appear in person at a
registration site four times a year, a minimum of 100 times over the next twenty-five
years, extending for the remainder of his life. See 42 Pa.C.S §9799.15(e)(3). In fact,
this is the minimum number of times appellant will have to appear in person, and does
not account for the times he must appear due to his “free” choices including “moving to
a new address or changing his appearance[.]”18 See 42 Pa.C.S. §9799.15(g); Perez, 97
18 We are cognizant that restrictions on housing also arise from different statutes, such as 42 U.S.C. §13663(a), which prohibits Tier III offenders, like appellant, from residing in federally subsidized housing.
[J-121B-2016] - 31 A.3d at 754. Furthermore, a homeless offender, referred to in the statute as a
“transient,” is required to appear in person monthly, a minimum of 300 times over
twenty-five years. See 42 Pa.C.S. §9799.15(h)(1). The Commonwealth’s argument the
Williams II Court found more onerous monthly counseling sessions for sexually violent
predators were not an affirmative disability or restraint is unpersuasive. The Williams II
Court based its decision partly on the fact the counseling sessions requirement was
designed to “assist the sexually violent predator, who is likely to be impulsive,
irresponsible and burdened with poor behavioral controls, from relapsing into sexually
predatory behavior.” Williams II, 832 A.2d at 975 (footnote omitted). Under SORNA,
where there has been no finding that individuals subject to the in-person registration
requirements are sexually violent predators, subject to needed counseling, the in-
person appearances do not constitute counseling in any event. Thus, the reasoning on
this point in Williams II simply does not apply. As such, we find the in-person reporting
requirements, for both verification and changes to an offender’s registration, to be a
direct restraint upon appellant and hold this factor weighs in favor of finding SORNA’s
effect to be punitive.
ii. Whether the Sanction Has Been Historically Regarded as Punishment
Appellant also contends the requirements of SORNA closely parallel historical
forms of punishment such as probation and parole since the in-person reporting
requirements are similar to meeting with a probation officer, and sex offenders also
have a reduced expectation of privacy under the statute. Appellant’s Brief at 19-20,
citing 42 Pa.C.S. §9799.11(a)(5). Appellant notes this is a distinct difference from the
Alaska statute at issue in Smith where the High Court rejected such an argument on the
basis the Alaska statute contained no mandatory conditions comparable to probation.
[J-121B-2016] - 32 Appellant’s Brief at 19, citing Smith, 538 U.S. at 101. PACDL posits the stated purpose
of both probation and SORNA is to promote public safety, both rest on the assumption
the individual requires supervision, both are imposed by the trial court at the time of
sentencing and are part of the Sentencing Code, both require regular, in-person
appearances, and both probationers and registrants must comply or face sanctions.
PACDL’s Brief at 46-47.19 PACDL also contends SORNA is similar to shaming
punishments and has been recognized as such by other jurisdictions. PACDL argues
historical shaming punishments involved the public disclosure of similar information
about offenders and SORNA’s declaration that all registrants are “sex offenders” and
“high risk” is akin to a scarlet letter which the offender has no mechanism to dispute. Id.
at 47-48.
The Commonwealth contends although SORNA registration may be like some
probationary terms, probation takes many forms and can be much more burdensome
than SORNA’s requirements. Commonwealth’s Brief at 24. The Commonwealth also
argues should the Court find this factor weighs in favor of finding SORNA punitive, the
factor should be given little weight as probation is the least onerous and newest form of
traditional punishment. Id. at 23-25, citing Woodruff, 135 A.3d at 1055. The
Commonwealth also contends registration is not similar to shaming as the public display
is not for the purpose of ridicule, but instead to inform the public for its own safety.
Commonwealth’s Brief at 25-26, citing Kammerer v. State, 322 P.3d 827, 835-36 (Wyo.
2014).
19 PACDL also notes other jurisdictions have held sex offender registration laws are similar to probation. PACDL’s Brief at 46, citing Doe v. Dep’t of Pub. Safety & Corr. Serv., 62 A.3d 123 (Md. 2013); Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Doe, 189 P.3d 999.
[J-121B-2016] - 33 The United States Supreme Court has distinguished colonial-era public shaming
punishments from sex offender registration laws by noting public shaming “involved
more than the dissemination of information” but also “held the person up before his
fellow citizens for face-to-face shaming or expelled him from the community.” Smith,
538 U.S. at 98. The Smith Court found the sex offender information disseminated
through the Alaska statute is accurate and, for the most part, already public. Id. The
Court noted the publicity may cause embarrassment or ostracism for the convicted, but
found “the publicity and resulting stigma [is not] an integral part of the objective of the
regulatory scheme.” Id. at 99. The Court also stated the fact the information is posted
on the internet did not alter its conclusion since the intent of the posting is to inform the
public for its own safety, the website itself does not provide the public with a means to
shame the offender, and members of the public must affirmatively seek out the
information. Id.
As stated above, we recognize the significance of the Smith Court’s decision with
regard to its analysis of the Alaska statute. However, Smith was decided in an earlier
technological environment. The concurring expression by now-Justice Donohue in
Perez has particular force on this point: The environment has changed significantly with the advancements in technology since the Supreme Court’s 2003 decision in Smith. As of the most recent report by the United States Census Bureau, approximately 75 percent of households in the United States have internet access. Yesterday’s face-to-face shaming punishment can now be accomplished online, and an individual’s presence in cyberspace is omnipresent. The public internet website utilized by the Pennsylvania State Police broadcasts worldwide, for an extended period of time, the personal identification information of individuals who have served their “sentences.” This exposes registrants to ostracism and harassment without any mechanism to prove rehabilitation—even through the clearest proof. In my opinion, the extended registration period and the worldwide dissemination of registrants’ information authorized by SORNA now outweighs the public safety interest of the government so as to disallow a finding that it is merely regulatory.
[J-121B-2016] - 34 Perez, 97 A.3d at 765-66 (Donohue, J., concurring).
Furthermore, although the Smith Court ultimately rejected the argument Alaska’s
registration system was like probation because it did not impose mandatory conditions,
the High Court nevertheless recognized the argument has “some force” and the
argument is therefore even more compelling where SORNA does impose such
conditions. See Id. at 763 (Donohue, J. concurring), citing Smith, 538 U.S. at 101. It is
clear the Alaska statute at issue in Smith and SORNA are materially different in this
regard. As our analysis of the similarity to probation would be nearly identical to Justice
Donohue’s analysis of the issue in Perez, we again quote from her concurring opinion
with minimal, bracketed, differences arising out of appellant’s status as a Tier III
offender: In contrast, the mandatory in-person verification requirement in Section 9799.15(e) not only creates an affirmative restraint upon [appellant], requiring him to appear at a designated facility a minimum of [100] times over the next 25 years[, extending for the remainder of his life,] as a Tier [III] offender, but also greatly resembles the periodic meetings with probation officers imposed on probationers. … [B]ecause SORNA differs significantly from the statute at issue in Smith, these disparities must be considered. In [Williams II,] the Pennsylvania Supreme Court found that probation has historically been considered a traditional form of punishment. Williams [II], 832 A.2d at 977. Probation entails a set of mandatory conditions imposed on an individual who has either been released after serving a prison sentence, or has been sentenced to probation in lieu of prison time. 42 Pa.C.S. §9754. These conditions can include psychiatric treatment, limitations on travel, and notifying a probation officer when any change of employment or residency occurs. 42 Pa.C.S. §9754(c). Probationers are also subject to incarceration for a violation of any condition of their probation. 42 Pa.C.S. §9771. Like the conditions imposed on probationers, registrants under SORNA must notify the state police of a change in residence or employment. 42 Pa.C.S. §9799.15(g). Offenders also face incarceration for any non- compliance with the registration requirements. 42 Pa.C.S. §9799.22(a). Furthermore, SORNA requires registrants who do not have a fixed place of work to provide “general travel routes and general areas where the individual works” in order to be in compliance. 42 Pa.C.S. §9799.16. The
[J-121B-2016] - 35 Supreme Court in Smith stated that “[a] sex offender who fails to comply with the reporting requirement may be subjected to criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.” Smith, 538 U.S. at 101-02. However, violations for noncompliance with both probation and SORNA registration requirements are procedurally parallel. Both require further factual findings to determine whether a violation has actually occurred. 42 Pa.C.S. §§9771(d), 9799.21. Similarly, but for the original underlying offense, neither would be subject to the mandatory conditions from which the potential violation stems. The parallels between the SORNA registration requirements and probation lead me to conclude that factor two of the [Mendoza-Martinez] test leans towards a finding that SORNA is punitive.
See Perez, 97 A.3d at 763-64 (Donohue, J. concurring).
We conclude the weighing process with regard to this Mendoza-Martinez factor
presents a much closer case than the Smith Court’s analysis of Alaska’s registration
statute in 2003. We consider SORNA’s publication provisions—when viewed in the
context of our current internet-based world—to be comparable to shaming punishments.
We also find SORNA and the Alaska statute are materially different in their mandatory
conditions such that SORNA is more akin to probation. We therefore hold this factor
weighs in favor of finding SORNA’s effect to be punitive.
iii. Whether the Statute Comes into Play Only on a Finding of Scienter
Appellant presents no argument on this factor, noting the Smith Court did not
analyze it because it carried little weight in determining the punitive nature of the Alaska
statute. Appellant’s Brief at 20, citing Smith, 538 U.S. at 105. The Commonwealth
agrees with appellant. On the other hand, PACDL argues the question of scienter does
weigh in favor of finding SORNA is punitive because registration flows directly from a
finding of guilt, which requires a particular mental state. PACDL’s Brief at 49, citing
Smith, 538 U.S. at 105. We recognize that where the concern of a sex offender
registration statute like SORNA is protecting the public against recidivism, past criminal
[J-121B-2016] - 36 conduct is “a necessary beginning point.” Smith, 538 U.S. at 105. As such, we agree
with the Smith Court in finding this factor is of little significance in our inquiry. See id.
iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment Appellant next argues SORNA operates to promote the traditional aims of
punishment—retribution and deterrence. Appellant’s Brief at 20. Appellant argues
SORNA promotes deterrence much like incarceration and probation do; the prospect of
being labeled a sex offender accompanied by registration requirements and the public
dissemination of personal information on the internet will deter the commission of sex
offenses. Id. Appellant further argues SORNA has retributive aspects since it applies
only after an individual commits a crime, and the additional punishment for failure to
register or provide accurate information, see 18 Pa.C.S. §4915.1, is also related to
retribution. Appellant’s Brief at 21. Appellant contends distribution of private
information online also exacts retribution. Id. at 21-23. To this point, appellant
recognizes the Smith Court stated the dissemination of accurate information may
properly flow from an offender’s conviction, which is a matter of public record. Id. at 22.
However, appellant notes the information disseminated under SORNA goes beyond
conviction data and includes sufficient information to allow members of the public to
harass an offender, and thus endanger public safety. Id. at 22-23.
PACDL posits SORNA is designed to have deterrent and retributive effects.
PACDL notes deterrence is an obvious goal of sex offender registration laws. PACDL’s
Brief at 50, citing Commonwealth v. Gehris, 54 A.3d 862, 878 (Pa. 2012) (Castille, C.J.,
opinion in support of reversal). PACDL also contends the analysis here is different from
that in Williams II as SORNA is different from Megan’s Law II in significant ways; many
SORNA offenses are misdemeanors where lengthy incarceration is unlikely and often
[J-121B-2016] - 37 impossible, and thus SORNA is the greatest form of deterrence for those crimes.
PACDL’s Brief at 50-51. As to retribution, PACDL posits registration is imposed
automatically upon a conviction regardless of the underlying circumstances or the actual
risk an offender may offend again. PACDL’s Brief at 49-50. Thus, PACDL argues,
SORNA exacts retribution for past crimes without regard to public safety interests. Id. at
50.
The Commonwealth acknowledges SORNA has a deterrent purpose and effect.
Commonwealth’s Brief at 28-29. However, the Commonwealth argues finding SORNA
punitive (and thus incapable of retroactive application) would undermine the state’s
ability to regulate offenders and the risk of recidivism is too great a price to pay. Id. at
29, citing Smith, 538 U.S. at 102. The Commonwealth cites several studies which state
sex offender recidivism rates are difficult to measure and are likely underreported, and
as such, recidivism remains a valid legislative concern. Commonwealth’s Brief at 29-
30. The Commonwealth further contends results of studies may vary because the area
is vast and complex; thus courts and legislatures have consistently relied on information
demonstrating recidivism is a significant concern for adult offenders. Id. at 31, citing
United States v. Irey, 612 F.3d 1160, 1214-15 (11th Cir. 2010) (citing cases raising
concerns over sex offender recidivism). The Commonwealth contends, because of
contrasting studies and real recidivism concerns, this Court should be wary of PACDL’s
contrary conclusions. Commonwealth’s Brief at 33.
We are substantially aligned with appellant as to this factor, especially in light of
the Commonwealth’s concession that SORNA is meant to have a deterrent effect. We
agree that the prospect of being labeled a sex offender accompanied by registration
requirements and the public dissemination of an offender’s personal information over
the internet has a deterrent effect. We are also cognizant that “the mere presence of a
[J-121B-2016] - 38 deterrent purpose” does not “render such sanctions ‘criminal’.” Smith, 538 U.S. at 102.
On careful consideration, however, we cannot say there is only a “mere presence” of a
deterrent effect embodied in SORNA. See id. (emphasis added). Contrary to Megan’s
Law II, as analyzed in Williams II, there is not a “substantial period of incarceration
attached to” many of the predicate offenses requiring registration under SORNA, many
of which are misdemeanors or carry relatively short maximum terms of incarceration.20
Williams II, 832 A.2d at 978. This includes interference with custody of children, 18
Pa.C.S. §2904, a misdemeanor of the second degree which does not have a sexual
component, and yet is a Tier I offense under SORNA. See 42 Pa.C.S. §9799.14(b)(3).
A conviction under this subsection may not lead to incarceration, but would
nevertheless require registration as a sex offender for a fifteen year period. In such a
case, and for many other predicate offenses listed in the tier system, SORNA clearly
aims at deterrence.21
Although we recognize both the High Court in Smith and this Court in Williams II
found sex offender laws generally do not have a retributive purpose, we note there was
20 SORNA predicate offenses that may be graded as misdemeanors under Pennsylvania law are as follows: interference with custody of children, 18 Pa.C.S. §2904; luring a child into a motor vehicle or structure, 18 Pa.C.S. §2910; indecent assault, 18 Pa.C.S. §3126(a)(1)-(6), (8); invasion of privacy, 18 Pa.C.S. §7507.1(b); and obscene and other sexual materials and performances, 18 Pa.C.S. §5903(a)(3)(ii), (4)(ii), (5)(ii), (6). SORNA predicate offenses that may have a maximum incarceration term of two years or less under federal law are as follows: video voyeurism, 18 U.S.C. §1801; misleading domain names on the internet, 18 U.S.C. §2252B; and abusive sexual conduct, 18 U.S.C. §2244. 21 We recognize interference with custody of children is not an example on all fours with the present situation, as appellant is a Tier III offender and, in any event, many of the other minor offenses listed in the tier system do include sexual components. However, the Smith Court made clear we must examine the law’s entire statutory scheme when determining whether a statute is truly civil or creates instead a punitive effect. Smith, 538 U.S. at 92. Thus, each and every predicate offense is relevant to our analysis.
[J-121B-2016] - 39 minimal analysis on this point in either decision. Retribution, in its simplest terms,
“affix[es] culpability for prior criminal conduct,” Hendricks, 521 U.S. at 362, and in fact,
SORNA is applicable only upon a conviction for a predicate offense. We recognize the
Smith Court stated the dissemination of accurate, public record information, even over
the internet, did not alter its conclusion that the Alaska statute did not have a punitive
effect. However, the information SORNA allows to be released over the internet goes
beyond otherwise publicly accessible conviction data and includes: name, year of birth,
residence address, school address, work address, photograph, physical description,
vehicle license plate number and description of vehicles. See 42 Pa.C.S.
§9799.28(b)(1)-(8). Moreover, although the Williams II Court determined the
dissemination of registration information provided by sexually violent predators under
Megan’s Law II was necessary to protect the public, the Court expressly stated the
public notification and electronic dissemination provisions of that statute “need not be
read to authorize public display of the information, as on the Internet.” Williams II, 832
A.2d at 980. SORNA has increased the length of registration, contains mandatory in-
person reporting requirements, and allows for more private information to be displayed
online. Perez, 97 A.3d at 765 (Donohue, J. concurring). Under the circumstances, we
conclude SORNA is much more retributive than Megan’s Law II and the Alaska statute
at issue in Smith, and this increase in retributive effect, along with the fact SORNA’s
provisions act as deterrents for a number of predicate offenses, all weigh in favor of
finding SORNA punitive.
v. Whether the Behavior to which the Statute applies is Already a Crime
Appellant concedes this factor does not carry much weight, but suggests it does
weigh in favor of finding the statute punitive. Appellant’s Brief at 23, citing Smith, 538
[J-121B-2016] - 40 U.S. at 105. PACDL notes SORNA applies only after an individual has been convicted
of a predicate crime and the registration requirements cannot be waived if the offender
poses little or no risk; PACDL concludes this means the factor weighs in favor of finding
SORNA is punitive. PACDL’s Brief at 51. The Commonwealth responds by contending
Smith should control here and this factor is of little weight. Commonwealth’s Brief at 35,
citing Smith, 538 U.S. at 105. As with the third Mendoza-Martinez factor discussed
above, this factor carries little weight in the balance. We again recognize where
SORNA is aimed at protecting the public against recidivism, past criminal conduct is “a
necessary beginning point.” See Smith, 538 U.S. at 105.
vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected Appellant concedes this factor weighs in favor of finding SORNA to be
nonpunitive as there is a rational connection to public safety and health. Appellant’s
Brief at 24. PACDL, however, submits SORNA is not rationally related to a nonpunitive
purpose. PACDL contends most offenders will not commit another sexual offense, and
SORNA therefore produces an illusion of security from stranger perpetrators when the
majority of sexual crimes are committed by someone known to the victim. PACDL
further argues SORNA diverts law enforcement efforts away from the most serious
offenders and from effective methods of crime control and treatment. PACDL’s Brief at
51-53.
The Commonwealth reiterates its recidivism-based arguments to conclude
SORNA is rationally connected to the goals of public safety and health.
Commonwealth’s Brief at 35-37. Amicus PDAA posits appellant is misguided in asking
this Court to second-guess legislative judgment since there is no absolute truth when it
comes to the risk posed by sexual offenders. PDAA’s Brief at 11-12. PDAA cites
[J-121B-2016] - 41 studies that have found nearly forty percent of sexual offenders released from prison
return to prison within three years for sexual offenses. Id. at 12. PDAA also contends
any attempt to measure recidivism greatly understates the problem as the wide majority
of sexual offenses are never reported. Id. at 13-15. PDAA concludes although there is
no perfect solution to this problem, as with most policy problems, the General Assembly
should be afforded deference in its judgment regarding a complex issue of social policy.
Id. at 16-17.
We recognize there are studies which find the majority of sexual offenders will
not re-offend, and that sex offender registration laws are ineffective in preventing re-
offense; we also recognize there are studies that reach contrary conclusions. In this
context, we find persuasive PDAA’s argument that policy regarding such complex
societal issues, especially when there are studies with contrary conclusions, is ordinarily
a matter for the General Assembly. See e.g., Commonwealth v. Hale, 128 A.3d 781,
785 (Pa. 2015) (where “substantial policy considerations” are involved “such matters are
generally reserved … to the General Assembly”). The General Assembly made
legislative findings that “[s]exual offenders pose a high risk of committing additional
sexual offenses and protection of the public from this type of offender is a paramount
governmental interest.” 42 Pa.C.S. §9799.11(a)(4). Although there are contrary
scientific studies, we note there is by no means a consensus, and as such, we defer to
the General Assembly’s findings on this issue. We are also cognizant that the General
Assembly legislated in response to a federal mandate based on the expressed purpose
of protection from sex offenders. See 42 U.S.C. §16901 (“In order to protect the public
from sex offenders and offenders against children, and in response to the vicious
attacks by violent predators against the victims listed below, Congress in this chapter
establishes a comprehensive national system for the registration of those offenders
[J-121B-2016] - 42 .…”). We therefore conclude there is a purpose other than punishment to which the
statute may be rationally connected and this factor weighs in favor of finding SORNA to
be nonpunitive.
vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned Appellant notes the Williams II Court considered the fact there was no means
under Megan’s Law II for a judicially-determined sexually violent predator to
demonstrate he no longer posed a substantial risk to the community—and thus escape
lifetime registration—to be “troubling.” Appellant’s Brief at 25, quoting Williams II, 832
A.2d at 982-83. However, the Williams II Court ultimately found the record in that case
did not include any information concerning the successful treatment of sexually violent
predators to support a finding this effectively permanent requirement was excessive,
given the presumption Megan’s Law II was constitutional. Williams, 832 A.2d at 983.
Appellant distinguishes SORNA because it does not require any judicial determination
that offenders are sexually violent predators before applying its most severe
requirements, and instead subjects all offenders within Tier III to the same reporting
requirements as a sexually violent predator under Megan’s Law II. Appellant’s Brief at
25-26, citing Williams II, 832 A.2d at 983. Appellant contends SORNA’s terms are
excessive in this regard and he will never be able to overcome the presumption there is
a high risk he will commit another sexual offense. Appellant’s Brief at 25-26.
PACDL also contends SORNA is excessive and significantly over-inclusive as it
casts a global net which sweeps into the sex offender registry many minor and non-
sexual offenses. PACDL’s Brief at 53. PACDL asserts SORNA is ineffective in
determining risk as it does not even require a risk assessment; PACDL notes this Court
has found imprecision even in risk assessments. Id. at 54, citing Lee, 935 A.2d at 885.
[J-121B-2016] - 43 The Commonwealth responds by contending appellant’s excessiveness
argument lacks merit as his registration requirements are not as severe as those of a
sexually violent predator under SORNA, who must attend monthly counseling sessions
and be monitored by the State Sexual Offenders Assessment Board. Commonwealth’s
Brief at 37-38, citing Woodruff, 135 A.3d at 1061. The Commonwealth further notes
sexually violent predators are subject to additional public notification procedures and
publication on the internet of even more private information, including where they eat,
spend time, and engage in leisure activities. Commonwealth’s Brief at 38, citing 42
Pa.C.S. §§9799.27, 9799.28. The Commonwealth further notes the Williams II Court
was concerned with excessiveness in the process by which courts determine whether or
not an offender is a sexually violent predator rather than the excessiveness of the
reporting conditions per se. Commonwealth’s Brief at 39, citing Williams II, 832 A.2d at
982.
Once again, we are aligned with the arguments of appellant and PACDL. The
Williams II Court observed with regard to Megan’s Law II, “if the Act’s imprecision is
likely to result in individuals being deemed sexually violent predators who in fact do not
pose the type of risk to the community that the General Assembly sought to guard
against, then the Act’s provisions could be demonstrated to be excessive .…” Williams
II, 832 A.2d at 983. Furthermore, “‘society has a significant interest in assuring that the
classification scheme [of a sex offender registration law] is not over-inclusive.’” Lee,
935 A.2d at 883, quoting Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003).
We apply this reasoning here, and we do not analyze excessiveness as applied only to
appellant or sexually violent predators, but instead we examine SORNA’s entire
statutory scheme. Smith, 538 U.S. at 92. Moreover, we have already recognized
SORNA categorizes a broad range of individuals as sex offenders subject to its
[J-121B-2016] - 44 provisions, including those convicted of offenses that do not specifically relate to a
sexual act. See, e.g., 42 Pa.C.S. §9799.14(b)(1)-(3), (19) (pertaining to: unlawful
restraint, 18 Pa.C.S. §2902(b); false imprisonment, 18 Pa.C.S. §2903(b); interference
with custody of a child, 18 Pa.C.S. §2904; filing factual statement about alien individual,
18 U.S.C. §2424). Accordingly, we conclude SORNA’s requirements are excessive and
over-inclusive in relation to the statute’s alternative assigned purpose of protecting the
public from sexual offenders.
viii. Balancing of Factors
Our review of SORNA under the Mendoza-Martinez factors reveals significant
differences between Pennsylvania’s most recent attempt at a sex offender registration
statute and the statutes upheld in Williams II and Smith. As stated, we have determined
four of the five factors to which we have given weight—all except for whether there is an
alternative purpose to which the statute may be rationally connected—weigh in favor of
finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We
conclude SORNA involves affirmative disabilities or restraints, its sanctions have been
historically regarded as punishment, its operation promotes the traditional aims of
punishment, including deterrence and retribution, and its registration requirements are
excessive in relation to its stated nonpunitive purpose. Accordingly, we hold the
retroactive application of SORNA to appellant violates the ex post facto clause of the
United States Constitution.
[J-121B-2016] - 45 VI. State Ex Post Facto Claim
Having found retroactive application of SORNA violates the federal ex post facto
clause, we might end our analysis here. See, e.g., Rose, 127 A.3d at 798 n.11
(standards applied to determine ex post facto violations under state and federal clauses
are comparable; law that violates federal ex post facto clause will be held to violate
state clause such that Court “need not separately consider” it); Commonwealth v.
Gaffney, 733 A.2d 616, 621 (Pa. 1999) (language of federal and state ex post facto
clauses “virtually identical,” same concerns shaped them, and “virtually identical
standards have applied to determining whether” ex post facto violation has occurred
under the two provisions). However, appellant presented a state constitutional
challenge, of which we expressly granted review, and the parties and amici forwarded
developed arguments on this claim. But see Perez, 97 A.3d at 766 (state ex post facto
claim waived). Moreover, we are cognizant of the difficulties arising in the wake of a
decision from this Court based exclusively on federal grounds, which is subsequently
appealed to the United States Supreme Court and remanded after a contrary decision
regarding the federal constitution; inevitably, a state claim follows and a decision
rendered by this Court only after intervening uncertainty and delay. Compare Pap’s
A.M. t/d/b/a Kandyland v. City of Erie, 719 A.2d 273 (Pa. 1998) (striking down nude
dancing ordinance on basis of federal First Amendment protections; state constitutional
claim not reached), reversed by City of Erie v. Pap’s A.M. t/d/b/a Kandyland, 529 U.S.
277 (2000) (upholding nude dancing ordinance as content-neutral and not violative of
federal free speech protections) with Pap’s A.M. t/d/b/a Kandyland v. City of Erie, 812
A.2d 591 (Pa. 2002) (nude dancing ordinance violates Pennsylvania Constitution free
speech provision). See also Doe, 189 P.3d 999 (upon remand from United States
[J-121B-2016] - 46 Supreme Court, retroactive application of Alaska’s sex offender registration law held
unconstitutional under state ex post facto clause).
We are also aware our decision that SORNA violates the federal ex post facto
clause is a departure from federal case law which has upheld the Adam Walsh Act
against federal ex post facto challenges. See, e.g., United States v. Young, 585 F.3d
199, 203-06 (5th Circ. 2009) (retroactive application of federal SORNA does not violate
federal ex post facto clause); United States v. May, 535 F.3d 912, 919-20 (8th Circ.
2008) (same), cert denied, May v. United States, 556 U.S. 1258 (2009), abrogated on
other grounds by Reynolds v. United States, 565 U.S. 432 (2012). Under the
circumstances, we consider it salutary to decide appellant’s state constitutional
challenge, and our approach is not unprecedented. See Commonwealth v. Kohl, 615
A.2d 308, 315 (Pa. 1992) (“While we have held that the searches authorized by
§1547(a)(2) violate the Federal Constitution, the constitutionality of the searches under
Article I, section 8 must be addressed also. We conclude that the searches are
impermissible under the Pennsylvania Constitution. The analysis underlying our holding
is separate and independent from the analysis undertaken under the Federal
Constitution. Therefore, our holding under the Pennsylvania Constitution would remain
unchanged should the U.S. Supreme Court resolve the issue contrary to our analysis of
the federal constitutional question.”). Accordingly, we proceed to determine whether the
Pennsylvania Constitution provides even greater ex post facto protections than its
federal counterpart by analyzing the following four factors: 1) text of the Pennsylvania
constitutional provision; 2) history of the provision, including Pennsylvania case law; 3)
related case law from other states; and 4) policy considerations, including unique issues
[J-121B-2016] - 47 of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Edmunds, 586 A.2d at 894-95 (Pa. 1991).22
22 We note the Adam Walsh Act—pursuant to which SORNA was enacted — anticipates the possibility that state compliance with the federal mandate might violate a state’s constitution, and provides for the possibility that a penalty for noncompliance might not apply in such situations. See 42 U.S.C. §16925(b)(1) (“When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s highest court.”). Our analysis on state grounds averts the “consultation” procedure intended to determine whether compliance with the federal legislation might violate a state’s own constitution: “In considering whether compliance with the requirements of this subchapter would likely violate the jurisdiction’s constitution or an interpretation thereof by the jurisdiction’s highest court, the Attorney General shall consult with the chief executive and chief legal officer of the jurisdiction concerning the jurisdiction’s interpretation of the jurisdiction’s constitution and rulings thereon by the jurisdiction’s highest court.” See 42 U.S.C. §16925(b)(2). In the event the state’s constitution is violated by compliance, the federal statute allows for “reasonable alternative procedures or accommodations” such that the state might avoid reduced federal funding. 42 U.S.C. at §16925(b)(3). Parenthetically, we recognize the federal statute does not expressly require retroactivity but instead authorizes the Attorney General to specify such applicability. See 42 U.S.C. §16913(d) (“The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter[.]”). We further note the Attorney General has promulgated national guidelines which require states to include retroactive application as part of the federal SORNA requirements; thus the noncompliance provisions are implicated here. See 73 FR 38030-01 at 38046-47 (July 2, 2008) (“Accordingly, a jurisdiction will be deemed to have substantially implemented the SORNA standards with respect to sex offenders whose predicate convictions predate the enactment of SORNA or the implementation of SORNA in the jurisdiction’s program if it registers these sex offenders, when they fall within any of the three classes described above, in conformity with the SORNA standards”.)
[J-121B-2016] - 48 A. Text
The Pennsylvania Constitution provides, in pertinent part: “No ex post facto law
... shall be passed.” PA. CONST. art. I §17. It is clear, as the Commonwealth argues, the
text of the federal and state constitutions are nearly identical and we have recognized
“the same pre-revolutionary-war concerns shaped the ex post facto provisions of the
constitutions of Pennsylvania and the United States.” See Young, 637 A.2d at 1317
n.7. However, “we are not bound to interpret the two provisions as if they were mirror
images, even where the text is similar or identical.” Edmunds, 586 A.2d at 895-96.
Moreover, as amicus PACDL contends, the different location of the clauses within each
document “speaks volumes.” PACDL’s Brief at 37. The location of Pennsylvania’s
clause within the Declaration of Rights lends considerable force to the argument it
provides even more protection than its federal counterpart. See Gondelman v.
Commonwealth, 554 A.2d 896, 904 (Pa. 1989) (“those rights enumerated in the
Declaration of Rights are deemed to be inviolate and may not be transgressed by
government”); see also PA. CONST. art. 1, §25 (“To guard against transgressions of the
high powers which we have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall forever remain inviolate.”).
B. History
Appellant next argues the history of Pennsylvania’s ex post facto clause,
including relevant case law, also weighs in favor of finding it provides greater protection
than its federal counterpart, despite the fact this Court declined to make this distinction
in Gaffney, 733 A.2d at 616. In Gaffney, this Court held the retroactive application of
Megan’s Law I did not violate the state or federal ex post facto clauses. Id. at 621-22.
Appellant distinguishes Gaffney by noting reputation interests were not at issue
[J-121B-2016] - 49 because Gaffney’s sexual offender registration information was not to be disseminated
to the public under that statute. Appellant’s Brief at 29, citing Gaffney, 733 A.2d at 621.
Appellant argues this Court has recognized reputation as a protected interest in other
contexts under state law, see, e.g., Hatchard v. Westinghouse Broadcasting Co., 532
A.2d 346, 350 (Pa. 1987), and although the federal constitution does not provide such
express protection of reputation rights, this Court recently recognized an individual’s
right to reputation may be encroached by sex offender registration laws that brand
offenders with the “indelible mark of a dangerous recidivist.” Appellant’s Brief at 29,
quoting J.B., 107 A.3d at 17, 19 (“SORNA registration requirements, premised upon the
presumption that all sexual offenders pose a high risk of recidivating, impinge upon
juvenile offenders’ fundamental right to reputation as protected under the Pennsylvania
Constitution.”).
Moreover, PACDL notes, the Pennsylvania ex post facto clause was adopted ten
years prior to its federal counterpart, and Pennsylvania historically took a different
approach towards punishment, diverting away from the nationally accepted view of
corporal punishment as the norm much earlier than other jurisdictions. PACDL’s Brief
at 38-39, citing Robert R. Tyson, Essay on the Penal Law of Pennsylvania, Law
Academy of Philadelphia 9-13 (1827). PACDL further argues the most significant
difference between federal and state ex post facto case law is this Court has stated the
two constitutions “afford separate bases for proscribing ex post facto laws.” Id. at 39,
citing Lehman v. Pa. State Police, 839 A.2d 265, 270 n.4 (Pa. 2003) (denial of firearm
application based on prior conviction was not punishment and did not violate state or
federal ex post facto clauses). Finally, PACDL asserts this Court, in its decisions
discussing the ex post facto clause, has stated the seventh Mendoza-Martinez factor,
excessiveness, may alone be dispositive of a punitive finding in Pennsylvania.
[J-121B-2016] - 50 PACDL’s Brief at 39, citing Lee, 935 A.2d at 876 n.24 (excessiveness alone might
warrant finding Megan’s Law II requirements are punitive); Williams II, 832 A.2d at 982-
83 (leaving open possibility of excessiveness as determinative factor).
The Commonwealth responds by arguing historical considerations do not
distinguish the state clause from its federal counterpart, and that this Court’s statements
regarding excessiveness standing alone to support a finding a statute has punitive
effect do not undermine the United States Supreme Court’s expression that no single
Mendoza-Martinez factor is exhaustive or dispositive. See Hudson, 522 U.S. at 101.
The Commonwealth also rejects appellant’s reputation-based argument by noting J.B.
was confined to the unique reputation concerns for juvenile offenders and does not
apply to adults who have a higher likelihood of recidivating. Commonwealth’s Brief at
46-47.
Although we acknowledge both the state and federal ex post facto clauses were
shaped from the same pre-revolutionary war concerns, this Court has nevertheless
noted divergence between the clauses in the past, particularly with regard to defining
punishment on the basis of excessiveness. See, e.g., Lee, 935 A.2d at 876 n.24
(“There is some tension between the Hudson language [that no Mendoza-Martinez
factor is controlling] and our own suggestion in [Williams II], which postdated Hudson
by over five years, that the last Mendoza-Martinez factor alone might render Megan's
Law unconstitutional provided an adequate showing. We nonetheless suggested in
[Williams II] and maintain now, if only arguendo, that a showing of sufficient
excessiveness in Megan's Law II’s [Registration, Notification, and Counseling]
provisions might warrant a finding that those provisions are punitive.”). We further find
persuasive in our comparison of the history of the two ex post facto clauses the fact that
the Pennsylvania Constitution includes reputation as a fundamental right, see Hatchard,
[J-121B-2016] - 51 532 A.2d at 350, and conclude this factor militates in favor of holding the Pennsylvania
clause is even more protective than its federal counterpart.
C. Case Law from Other States
Appellant argues courts in Maryland, Indiana, and Alaska have considered the
public’s perception and treatment of sex offenders when holding such statutes are
unconstitutional under their respective state constitutions, even in the absence of a
reputation clause like Pennsylvania’s which categorizes reputation as an inherent right.
Appellant’s Brief at 30-31, citing Doe v. Dept. of Public Safety & Correctional Services,
62 A.3d 123, 140 (Md. 2013) (sex offender statute’s information dissemination
provisions have same effect as public shaming); Wallace v. State, 905 N.E.2d 371, 380
(Ind. 2009) (aggressive notification provisions expose registrants to humiliation and
ostracism); Doe, 189 P.3d at 1011-12 (offenders lost employment and moved out of
marital homes due to fear of publication). The Commonwealth responds by arguing the
majority of states have adopted the High Court’s reasoning in Smith to uphold the
retroactivity of their registration laws and only seven states have found such retroactive
application to be unconstitutional under the ex post facto clauses of their state
constitutions. Commonwealth’s Brief at 47-48.
Although many states have adopted the reasoning of the Smith Court in
upholding their sex offender registration statutes under both state and federal ex post
facto clauses, we do not find this controlling. The Pennsylvania Constitution differs from
the constitutions in those states—as well as the United States Constitution — in its
treatment of, inter alia, the right to reputation. See J.B., 107 A.3d at 16 (“This Court has
recognized that the right to reputation, although absent from the federal constitution, is a
fundamental right under the Pennsylvania Constitution.”) (citations omitted). We further
[J-121B-2016] - 52 find persuasive the fact that courts in Maryland, Indiana and Alaska, which have held
retroactive application of sex offender registration laws violate ex post facto clauses
under their state constitutions, have also found harm to the reputations of offenders to
be a factor in their constitutional analysis, even in the absence of a constitutional
provision like Pennsylvania’s to give special protection to that interest. See Doe v.
Dept. of Public Safety, 62 A.3d at 140; Wallace, 905 N.E.2d at 380; Doe v. State, 189
P.3d at 1011-12. We conclude this Edmunds prong weighs in favor of holding
Pennsylvania’s ex post facto clause provides more protection than the federal clause.
D. Policy Considerations
Appellant argues policy considerations weigh in favor of finding greater
protections in the Pennsylvania Constitution as the state has an interest in the finality of
sentencing and individuals have an interest in understanding the regulatory outcome of
guilty pleas and criminal convictions. Appellant’s Brief at 31. Appellant further argues
adult sex offenders have been found to recidivate at a rate of only 13% and public policy
should favor the 87% of sex offenders who will never offend again, and provide security
in the knowledge that no new penalties or regulations will be imposed after they have
been convicted and sentenced. Id. at 31, citing J.B., 107 A.3d at 17. In addition,
PACDL again forwards reputation-based arguments to support the position public policy
weighs in favor of finding greater protection in Pennsylvania’s ex post facto clause.
PACDL’s Brief at 40-41. The Commonwealth contends appellant’s argument regarding
low recidivism rates relies on statements from J.B. regarding adult recidivism rates
which have been rebutted. Commonwealth’s Brief at 29-30, 49. The Commonwealth
further argues although reputation is a constitutionally protected right in Pennsylvania, it
[J-121B-2016] - 53 may be constrained, just like other rights, upon a qualifying criminal conviction and
policy factors weigh in favor of protecting the public from sex offenders. Id. at 50-51.
As previously stated, we recognize there is conflicting evidence regarding
recidivism rates of adult sex offenders, and therefore we do not base our determination
regarding this prong of the Edmunds analysis on this aspect of the relevant policy
considerations. See e.g., Hale, 128 A.3d at 785 (where “substantial policy
considerations” are involved “such matters are generally reserved … to the General
Assembly”). However, we do find persuasive appellant’s argument that both the state
and offenders have an interest in the finality of sentencing, as well as the claim the
Pennsylvania Constitution’s special treatment of the right to reputation justifies greater
protections under the Pennsylvania ex post facto clause. See Commonwealth v.
Russo, 934 A.2d 1199, 1212 (Pa. 2007) (public policy considerations unique to
Pennsylvania may suggest federal doctrines are inconsistent with Pennsylvania
Constitution).
E. Summary of Edmunds Analysis
To summarize, we find the following to be consequential to our analysis of the
relative protections afforded by the state and federal ex post facto clauses: the right to
be free from ex post facto laws is an “inherent” and fundamental Article I right under the
Pennsylvania Constitution; this Court has previously recognized, in Lee, Lehman, and
Williams II, there is some divergence between the state and federal ex post facto
clauses; SORNA’s registration and online publication provisions place a unique burden
on the right to reputation, which is particularly protected in Pennsylvania; other states
have also found the retroactivity of registration laws unconstitutional under their state
constitutions, partly due to reputation concerns; and both the state and offender have an
[J-121B-2016] - 54 interest in the finality of sentencing that is undermined by the enactment of ever-more
severe registration laws. For those reasons, we find Pennsylvania’s ex post facto
clause provides even greater protections than its federal counterpart, and as we have
concluded SORNA’s registration provisions violate the federal clause, we hold they are
also unconstitutional under the state clause.
VII. Conclusion
We reverse the Superior Court’s decision affirming appellant’s judgment of
sentence, and vacate that portion of the sentence requiring appellant to comply with
SORNA.
Jurisdiction relinquished.
Justices Baer and Donohue join the opinion and Justices Todd and Wecht join
Parts I through IV and VII of the opinion.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Chief Justice Saylor files a dissenting opinion.
Justice Mundy did not participate in the consideration or decision of this case.
[J-121B-2016] - 55