Court holds that retroactive extension of sex offender registration is punitive
Last week, the Pennsylvania Supreme Court held that some applications of the state’s sex offender registration law violate the state constitution. The decision represents an important step toward increasing constitutional scrutiny of sweeping laws that make it nearly impossible for convicted sex offenders to reintegrate into society after serving time in prison.
Jose Muniz was convicted in 2007 of indecent assault. At the time, the law required him to register as a sex offender for a 10-year period. Mr. Muniz fled before his sentencing; he was apprehended in 2014 and brought before the court for sentencing. While Mr. Muniz was on the run, the Pennsylvania legislature passed a new Sex Offender Registration and Notification Act (“SORNA”), which added even more onerous registration requirements. At Mr. Muniz’s sentencing, one of these new requirements was applied: he was ordered to comply with the new lifetime registration requirement instead of the 10-year requirement that had been in effect at the time of his conviction. Mr. Muniz appealed the application of the new lifetime registration requirement, asserting that the retroactive application of SORNA violates the ex post facto clause of the U.S. Constitution and the Pennsylvania Constitution.
The courts below had rejected Mr. Muniz’s argument by determining that SORNA’s registration provisions were not punishment at all; they were, instead, civil and nonpunitive. Accordingly, the ex post facto clause did not apply.
The Pennsylvania Supreme Court disagreed and struck down Mr. Muniz’s registration requirement as unconstitutional. Three of the five justices in the majority wrote an opinion stating that the retroactive application of SORNA violated both the U.S Constitution and the state constitution; two concurringjustices joined in finding a violation of the state constitution. One justice dissented. (Only six justices took part in the decision.)
The key finding in the majority’s opinion in Commonwealth of Pennsylvania v. Muniz is that SORNA is punitive in nature. Although sex offender registration might otherwise appear to be clearly punitive in both operation and intent, courts have historically deferred to state legislatures who claim that the primary purpose of such laws is regulatory in nature, and not to punish sex offenders. Indeed, the Pennsylvania General Assembly explicitly wrote that 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.”
Because Pennsylvania claimed that SORNA was not punitive, the court then undertook a review of a variety of factors to see whether implementation of the statutory scheme had punitive effects. After a lengthy discussion of the factors that help courts determine whether a civil scheme is punitive (set out by the U.S. Supreme Court in the case Kennedy v. Mendoza-Martinez), the three-justice lead opinion concluded that “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.” The two-justice concurrence agreed with the Mendoza-Martinez findings, and agreed that SORNA’s retroactive application violates the Pennsylvania constitutional protection against ex post facto laws under Article 1, Section 17. (The two opinions disagreed about whether the Pennsylvania Constitution offered more robust ex post facto protections than the U.S. Constitution, which is why no single majority opinion came through.)
Several other courts around the country have found that sex offender laws have punitive effects, including those in Maryland, Indiana, and Alaska. And, in a high profile case that is currently pending consideration before the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit determinedthat Michigan’s retroactive application of its registration requirements was punitive. While the State of Michigan has asked the Supreme Court to reverse that finding, the U.S. Solicitor General somewhat surprisingly urged the Courtto deny the State’s request and leave the Sixth Circuit opinion undisturbed.
The Pennsylvania decision may be an additional signal that the tide is slowly turning against a widespread hyper-punitive approach to managing sex offenders. In an important First Amendment decision issued near the end of its most recent term, the U.S. Supreme Court also hinted that some justices are concerned that these laws have gone too far. As I wrote in a post for the ACSblog:
“Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters — a problem that poses a real public safety concern by undermining the utility of registries — state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.”
While challenges to such laws will continue to percolate across the country, the Muniz decision raises a number of pressing questions in Pennsylvania. The Cumberland County District Attorney, on the losing side of Muniz, got it right when he told the Post-Gazette that: “The finding by the court, that essentially the whole scheme is punitive, calls the entire statute into question.”