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July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

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.  The Superior Court 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.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 at 12:02 PM | Permalink

Comments

The mere existence of Registries, even without all of the idiotic extra laws that they have enabled and promoted, is punishment.

Today and every day in the future, families that are listed on these Registries must do everything legal to accomplish these things:

1. Ensure that the Registries are useless.

2. Ensure the Registries are counterproductive. Do the opposite of every supposed goal of the Registries.

3. Retaliate because the Registries exist.

4. Harm individuals and companies that support the Registries. Nothing they care about matters.

Wage war on the Registries.

Posted by: FRegistryTerrorists | Jul 19, 2017 12:56:01 PM

If I were registered, I would include that fact on any dating sites to attract more adventurous partners.

People talk about toxic masculinity. That likely refers to the mental effects of testosterone, high libido and aggressiveness.

There is also to if femininity. It consists of making false allegations in retaliation for being offended even slightly. All accusers should be polygraphed before any investigation.

Posted by: David Behar | Jul 19, 2017 2:52:26 PM

@David

Toxic masculinity. I thought you were making the phrase up and was going to congratulate you on a nice sarcastic turn of words. Turns out is a real thing. Well real in the sense of being part of the wild imagination of various nutcase feminists.

https://en.wikipedia.org/wiki/Toxic_masculinity

My mind became polluted just from reading that entry in Wikipedia.

Posted by: Daniel | Jul 19, 2017 2:59:03 PM

There are certain things related to stereotypical 'male' behavior that is toxic. This doesn't mean being male is toxic. It does mean certain things society repeatedly treats as manly can be. Over and over again, e.g., certain boys in school are bullied because they aren't manly enough. Certain stereotypical 'female' behavior can be toxic too.

Anyway, being label an "offender" does seem inherently penal on some level, a certain of bill of attainder if not a result of actually being convicted of a sex crime. If it is the result of being convicted, that would be a punishment too.

I continue to think it is somewhat besides the point in that something need not be "punitive" to be an undue burden on liberty. But, ex post facto bans traditionally have only been applied to crimes, so (without reading the opinion) that could matter there.

Posted by: Joe | Jul 19, 2017 3:14:19 PM

There is an older case with the same name.

Different Muniz though. The other one involved "Inocencio Muniz." Being "innocent," he would have a stronger claim.

Posted by: Joe | Jul 19, 2017 3:22:45 PM

Joe. The lawyer profession is an undue burden.

Posted by: David Behar | Jul 19, 2017 3:31:27 PM

Daniel. Join Facebook. You will become hip to these progressive terms. Send me a Friend request in 2 weeks, when my ban is over. I will invite you to all the gay, feminists, and anti-Trump groups to which I belong.

Posted by: David Behar | Jul 19, 2017 3:35:18 PM

Can we get a no shit Sherlock from the audience.

Every time I hear "the USSC said it was legal" I want to shoot the idiot who said it. Sorry but what they said in 2002 was legal and what we have know is so far apart only a politician or a mentally challenged individual would think them the same.

Check you can read in the decision the main items that at time were NOT required that according to the justices would have made it illegal. EVERY single one are now Required in pain of prison for failure to do then

Posted by: rodsmith3510 | Jul 20, 2017 12:34:32 AM

Is this a decision of first impression? Will it now be persuasive to other courts, including federal courts?

Posted by: David Behar | Jul 20, 2017 7:12:35 AM

All it takes is when a former sex offender or several former sex offenders reach the tipping point of transitioning from "nice" protest to outright defiance of these registry laws, including violent resistance. Maybe then, law enforcement will realize that these laws can put police and other personnel at needless risk to their own safety without protecting the public safety one bit. Perhaps, Heaven forbid, it might take several law enforcement personnel murdered or assaulted by disgruntled ex-offenders before they realize that these sex offender laws even pose a needless threat to law enforcement personnel's welfare.

Posted by: william r. delzell | Jul 20, 2017 9:21:35 AM

Finally, some judges who speak the plain truth.

The dissenting judge's opinion was completely out of touch with the reality on the ground, and it is difficult to understand how that judge--and so many other judges over the years--can not clearly see that.....it has always been about punishment, it has not a thing to do with public safety.

As study after study has said; as professional after professional (excluding punishment-crazed police officials) has said.

May this ruling spread all across the land.

Posted by: Stephen Douglas | Jul 20, 2017 9:47:24 AM

Could anyone with knowledge on this ruling indicate whether state police will automatically remove an individual from registering if at the time of conviction they were told by the court they are not required to register?

Posted by: Lm7689 | Jul 20, 2017 11:02:30 AM

LM - highly doubt it. They'd have no way of knowing that.

Posted by: John | Jul 20, 2017 11:43:08 AM

I am looking for help here in Kentucky on a case I am working on for the partner I work for, involving a Maryland conviction for statutory rape, where the judgment specified that the defendant would be required to register as a sex offender for 10 years following his release from prison. After being released, the man moved to Kentucky and registered here, as required by Kentucky law. The Kentucky Dept. of Corrections, however, has advised him that he will have to remain registered as a sex offender in Kentucky for LIFE, no matter what his Maryland judgment says. He has now been out of prison and registered for 15 years. I have been looking at two kinds of arguments, Full Faith and Credit, and Equal Protection of the Laws. Does anyone here have any ideas or cases that might help me?

Posted by: Jim Gormley | Jul 20, 2017 4:04:14 PM

No chance at all LM because then they would also be required to remove the two or three hundred thousand on it who's conviction does not mention it one way or the other because they predate the illegal laws.

Posted by: rodsmith3510 | Jul 20, 2017 4:22:51 PM

If this is the case then is there is grounds for non compliance if they do not remove people ASAP?

Posted by: Paul | Jul 20, 2017 8:18:00 PM

If this is the case then is there grounds for non compliance of reg if they do not remove people ASAP?

Posted by: Paul | Jul 20, 2017 8:21:23 PM

william r. delzell | Jul 20, 2017 9:21:35 AM:

Unfortunately, the S*x Offender Registries (SORs) have not yet caused nearly enough violent retaliation. I hate violence and could never advocate it, but I would be dishonest if I said I didn't think it was deserved or that it would upset me. Too often the only way to make criminal regimes/thugs do the right thing is by force.

I do expect the SORs have contributed to some physical attacks/assaults on law enforcement (LE). I don't have any idea how much. But LE would have to be completely clueless to not well understand that the SORs have very negatively affected them and put them in more danger. LE is put in more danger by anything that causes and promotes contempt and disrepect of them. The SORs do that well.

There is absolutely no doubt that the SORs have greatly contributed to millions of people learning to be uncooperative and unsupportive of LE. And it is not just the families that are listed on the SORs. I have seen that directly happen to generations of families and their friends. With people who are otherwise very upstanding, positive, successful citizens. It's a bad thing.

LE never approaches my family or tries to speak with them about anything. They would have better luck talking to a tree. People think that the SORs help LE "monitor" the families listed on them. That's a joke. The opposite is true. The SORs have clearly greatly expanded the number of people who have no interest in helping LE.

The SORs definitely harm LE in many other ways as well. One of my pet hobbies is to keep money and other resources away from LE. There are dedicated groups that work for that and there is no mention there of "s*x offender". All you have to do is find the enemies of criminal LE and help them. LE in our area is something of an organized crime ring. They are always trying the fleece the taxpayers for more money. They NEVER want to work within the free labor market and are always trying to manipulate and distort their pay and benefits. It is a natural and good thing to control that organized theft.

So F the police. Let them choke on their glorious SORs.

Posted by: FRegistryTerrorists | Jul 21, 2017 12:16:20 PM

Stephen Douglas | Jul 20, 2017 9:47:24 AM:

I don't think ALL people have intended for the the S*x Offender Registries (SORs) to be punishment. There have been some people and groups who have supported the SORs for good, proper reasons. Some people are decent and truly believe that the SORs can help protect people and they wish no harm to the families that are listed on the SORs. So I don't personally feel comfortable saying that everyone who supports the SORs is an immoral, un-American piece of sh*t. Most of them are just really uninformed.

But on the other hand, the vast majority of people in the U.S. are evil in their core. Their support of the SORs is an act of war. Those people are Registry Terrorists (RTs). Families that are listed on the SORs need to ensure that they do not allow RTs to steal their good lives. A family that is listed on the SORs has a right to a good life so they should do anything needed to take it. Neutralize or destroy any RCs that stand in the way. Make their lives suck.

Posted by: FRegistryTerrorists | Jul 21, 2017 12:22:24 PM

"the vast majority of people in the U.S. are evil in their core"

The end times are upon us and evil will lose out and the core blessed elite will prevail.

Sorry. That's a tad to dark for me.

Posted by: Joe | Jul 21, 2017 2:19:20 PM

Now now the government says ignorance is no excuse unless of course it's their fanny being held to the fire.

Posted by: rodsmith3510 | Jul 21, 2017 3:54:19 PM

Joe | Jul 21, 2017 2:19:20 PM:

Don't worry. I don't think people in the U.S. (or the world in general) are any more or less evil than they've ever been. Just take a quick look at the short history of the U.S. It is completely filled with a tyrannical majority doing stupid, immoral, illegal, un-American things to the hated people of the time. People in the U.S. like to dream that they are decent. But they only are when it is convenient for them. The people who segregated "coloreds" would've loved the S*x Offender Registries.

Posted by: FRegistryTerrorists | Jul 21, 2017 6:23:00 PM

FRegistry Terrorists:

I don't really care if people think that registries are good for them and the community. They aren't, every study shows that they aren't.

Good people inform themselves. Good people don't sit around while the State (voted in by those good people) marks a portion of the population.

Good Germans did nothing while Jews were made to wear the Star of David on their clothing and then herded into ghettos. When some surviving Jews returned to their neighborhoods after WWII eneded, many of their good German neighbors had taken their homes or what was in their homes, and the returning Jews were frequently asked: why did you come back here?

In my view, there is no such thing as a good person who supports registries for anything at any time.

Posted by: Stephen Douglas | Jul 21, 2017 11:54:05 PM

@John
@Rodsmith

I should mention this applies to a particular person. His crime committed (invasion of privavy) in 2011, plea/conviction early 2012 was not considered a registerable offense until new update to law in 2012. It was retroactively applied and he then had to begin registering. Hoping he no longer has to register.

Posted by: Lm7689 | Jul 22, 2017 12:21:05 AM

An American with an opinion. First the obvious. Sex offenses are wrong and a negative aspect of the human condition. Having said that we cannot allow the government to register people publicly for anything. We have enough laws for punishment and do not need to add more under the deception of civil laws by registering people for offenses. The government is potentially evil in way we may never perceive. The effects of these tentacles that reach out into society impact us in so many negative ways. These registries back people into such tight corners without any options to turn their lives around. That is in fact punitive. What do people in these situations then do to survive? Commit more and greater crimes. The government is not the solution it is the problem. Sex offenders have an extremely low recidivism rate and they are held accountable and punished throughout their lives by these registries. Drug addicts have an 80-90 percent recidivism rate and get many opportunities for help and treatment. Think what the public would do if we started to register people with drug convictions. They cause just as much grief and turmoil as sex offenders. Once more the government is the problem.

Posted by: al | Jul 22, 2017 8:43:29 AM

When I went to state prison, I was made to choose between participating in sex offender programming and pursuing PCRA. Believing that I had a chance to complete programming and make parole, I gave in and dropped a very winnable PCRA, after which they manipulated the program to put me out. I was told, all the way up the DOC chain of command, that I would not be allowed to participate in program if I did not drop my PCRA. The program itself was run like a cult. Later, after I maxed out my 5 year sentence, the Sex Offender counselor approached me in public on numerous occasions and on one occasion, I was assaulted by off duty DOC employees.I met lots of really screwy offenders, with sad stories, but the doc staff were way worse. The only Democrat I ever voted for in my whole life was Gov. Casey against Barbara Hafer. These Justices deserve the highest praise for their courage. I was coerced into taking plea on a single incident 20 years ago, where exculpatory evidence was withheld. I have had no contact with either of my kids during this time. If you read my page on website, you would think I committed multiple offenses. It is factually incorrect. There was not one single piece of physical evidence. Find out 20 years later my wife was pregnant by another man before she made claim, and baby was born. This is only the tip of the iceberg.

Posted by: Ray | Jul 24, 2017 9:02:20 PM

@LM
@Paul

You can either wait [tick tock goes the clock], or have an attorney file an Action in Mandamus [Writ of Mandamus] in the Commonwealth court in Harrisburg. Casamento & Ratasiewicz in Media, PA [ttp://candrlawfirm.com/] have successfully filed a Writ of Mandamus in Tommy Lee Jackson v. Commonwealth [decided 7/2016].

....

Posted by: Huh? | Aug 14, 2017 3:44:33 PM

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