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PA’s SORNA/SORNA II Declared Unconstitutional by One County Judge

Judge Carpenter in Montgomery County issues decision that indicates retroactive provisions of Act 10 of 2018 (new Megan’s Law) violates Constitution.

On June 22, 2018, Judge William Carpenter issued a decision (no opinion) that the sexual offender registration and notification act (“SORNA”) is punitive, severable, and unconstitutional.  In the wake of the Supreme Court Majority opinion in Commonwealth v. Muniz, 164 A.3d 1189 (2017) which held that Megan’s Law IV or SORNA was unconstitutional in that it violated the ex post facto provisions of both the PA and Federal Constitutions, the PA Legislature recently passed Act 10 of 2018 (HB 631) on February 21, 2018.  The new law, dubbed “SORNA/SORNA II,” because it effectively bifurcates offenders based upon commission dates of their offenses, is arguably more punitive than its predecessor version.

The SORNA component of Act 10 makes certain sex crimes committed on or after December 20, 2012 a registerable offense under the old “Tier” system.  So, those who commit a rape after this date, have to register as a “Tier III” offender for life.  Those who commit a “Statutory Sexual Assault” when the defendant is between 8 and 11 years older than the complainant, who must be less than 16, commits a “Tier II” offense, subject to a 25 year registration.  In other words, it’s a crimes-based registration strategy. 

The SORNA II component of Act 10 takes the place of the former Megan’s Law II that expired on December 20, 2012.  Under its guidance, certain sex offenses that were registerable between April 22, 1996 and before December 20, 2012 are either 10 years or lifetime.  However, the registration provisions for those netted in this new system are arguably more burdensome.  See prior blog article “A History of Megan’s Law.”

Enter Judge Carpenter.  He held that an offender from 1997, who had never had any violations, was only a sexual offender and not a sexually violent predator (“SVP”) did not have to continue to register under Act 10.  The defendant was previously required because he had not yet completed his period of registration under SORNA II. 

This matter will likely be appealed, if so, Judge Carpenter will write an opinion detailing his thoughts and legal basis.  We’ll be sure to follow up.