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SORNA Sex Offender Registration Unconstitutional in Pennsylvania- Muniz Decision

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Retroactive application of SORNA or Megan's Law IV violates Ex Post Facto clauses of both federal and state constitutions.

By Attorney Elisabeth K.H. Pasqualini, SORNA/Megan's Law Attorney, Harrisburg, PA

In Commonwealth v. Muniz, ___ Pa. ____, ____ A.3d ___ (July 19, 2017), the Pennsylvania Supreme Court recently determined in a majority decision that the Sexual Offender Registration and Notification Act ("SORNA") or "Megan's Law IV" registration requirements are "punishment."  Therefore, the registration provisions violate the ex post facto ("after the fact") clauses of both the State and Federal Constitutions. It cannot be applied retroactively. Any sentence or registration period that constitutes punishment, as the Court determined, cannot be applied to someone after they are already sentenced. So, if you were sentenced prior to December 20, 2012 OR the alleged offense occurred prior to December 20, 2012 this decision applies to you. This decision does not invalidate the current registration regime under SORNA for those convicted after December 20, 2012. Although other challenges to the SORNA registration requirements may be pending.

Megan's Law I was enacted in 1995 and has gone through several iterations based upon subsequent determinations of particular provisions that violated the constitution. These iterations include Megan's Law II in 2000, Megan's Law III in 2004 and now Megan's Law IV or SORNA effective December 20, 2012. Megan's Law IV established the "tier system" for registration that is "offense based." Certain sexual or sexually-related offenses carry a 15, 25 and lifetime registration requirement.

SORNA in Pennsylvania is applicable to anyone who is or was under incarceration, probation or parole supervision, or was otherwise subject to the registration requirements of the statute after its effective date. In this case, the offender was convicted of a Megan's Law III crime in 2007. That crime in 2007 carried a 10 year registration requirement. After his sentencing he fled the jurisdiction in 2008. The Court determined that his absence from the jurisdiction prior to sentencing was of no moment because he would not have completed the 10 year registration period prior to the effective date of SORNA. Therefore, would have been subjected to increased registration requirements. As his "punishment" was increased after his sentence of 4 to 14 months was already imposed, SORNA or Megan's Law IV violated the ex post facto clauses.

How Do I Get Off the Megan's Law Registry?

There are at least two possible ways to get off the Megan's Law IV or SORNA registry now that it's retroactivity has been declared unconstitutional.

One way and the most likely, is to wait for the Attorney General's Office of Pennsylvania to issue a formal opinion to the Pennsylvania State Police to remove offenders. The State Police will have to then utilize their search capabilities within their own database to determine who was sentenced prior to December 20, 2012 and was still on probation, supervision, or registration for a Megan's Law offense. There are a lot of individuals impacted and likely this process will take more than a few weeks. Likely a few months.

Another way is to file a suit against the Pennsylvania State Police. The State Police would have to named as a party because they are responsible for updating and maintaining the database. The action, most likely a petition for injunctive or declaratory relief should be filed in the Commonwealth Court of Pennsylvania when a state agency, such as PSP is a named party.

How Do I Get Off Third Party Sites Now that Megan's Law IV or SORNA is Unconstitutional?

What is less clear is how this will affect third party sites from maintaining registration information on those who were formerly registered as sex offenders under Megan's Law IV. One would anticipate that any third party site that is maintaining inappropriate data that is defamatory would be subjecting itself to a suit for compensatory and possibly punitive damages. An initial "cease and desist" letter should be sent requesting that such data posted be immediately removed.

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