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SORNA and SORNA II- A History of Megan's Law

As of February 21, 2018, Pennsylvania passed a replacement statute to SORNA or "Megan's Law IV," which was partially declared unconstitutional by the Muniz decision.

A History of Megan's Law- Where we've been and where we are now

Megan's Law Background

New Jersey enacted a community notification statute referred to as "Megan's Law" after the abduction, rape and murder of seven-year old Megan Kanka. Congress passed federal legislation conditioning certain federal funding on states adopting comparable legislation to that of New Jersey. Pennsylvania enacted its first "Megan's Law" on October 24, 1995. Act 24 of 1995; 1995 Pa. ALS 24; 1995 Pa. Laws 24; 1995 Pa. SB 7; eff. April 22, 1996. Only a few select offenses were included and all offenses were limited to a 10 year registration. 42 Pa.C.S. § 9791-9799.

Megan's Law I, April 22, 1996- May 10, 2000

Megan's Law I was determined unconstitutional by the Pennsylvania Supreme Court in 1999 because the procedure for determining whether an offender was a "sexually violent predator" under the Law violated procedural due process guarantees by requiring the offender to rebut a presumption that [s]he was a sexually violent predator. Commonwealth v. Williams, 557 Pa. 304, 733 A.2d 593 (1999) ("Williams I").

Megan's Law II, May 10, 2000-December 20, 2012

In response to Williams I, the Legislature passed Megan's Law II on May 10, 2000 and "altered the manner in which an individual convicted of a predicate offense was adjudicated a sexually violent predator" by imposing upon the Commonwealth "the burden of proving such status by clear and convincing evidence." Commonwealth v. Williams, 574 Pa. 487, 495, 832 A.2d 962, 966 (2003) ("Williams II"). Act 18 of 2000, 2000 Pa. ALS 18, S.B. 380. However, in Williams II, the Supreme Court considered an ex post facto challenge to the retroactive application of Megan's Law II, and held that Megan's Law II registration, notification and counseling provisions were non-punitive, regulatory measures, but that the penalty provisions applicable to sexually violent predators were unconstitutionally punitive. Under Megan's Law II, an offender convicted of a predicate offense was required to: (1) register a current or intended residence with the PSP upon release from incarceration or commencement of probation or parole; (2) inform the PSP within ten days of a change in residence; and (3) register within ten days with a new law enforcement agency upon establishing residence in another state. Williams II, 574 Pa. at 496, 832 A.2d at 967. Sexually violent predators were obligated to register for their lifetime, while any other offender was obligated to register for either ten years or the offender's lifetime, depending upon the predicate offense and number of convictions. Li at 497 & n. 10-11, 832 A.2d at 967-968 & n. 10-11.

Megan's Law III, January 24, 2005- December 19, 2012

The Pennsylvania Legislature subsequently adopted the Act of November 24, 2004, P.L. 1243 No. 152 (2004), which was commonly known as Megan's Law III. See Coppolino v. Noonan, 102 A.3d 1254, 1258 n.2 (Pa. Cmwlth. 2014) (en banc). In 2007, Attorney Engle represented James Neiman before a jury. Although convicted and sentenced of some of the offenses, a successful challenge was mounted by Attorney Engle to the manner in which Megan's Law III was enacted. Known as "log-rolling" several distinct subjects were enacted in one piece of legislation. This allows legislators to get less attractive pieces of legislation passed because a necessary component (Megan's Law III) is attached to the entire bill. The matter was argued by Attorney Engle before the Superior Court en banc in Harrisburg, then later before the Supreme Court sitting in Philadelphia.

The Supreme Court declared the adoption of Megan's Law III as violative of the "single subject" rule of Article III, Section 3 of the Pennsylvania Constitution, and found "that the proper remedy for this violation of our Constitution [wa]s to strike [Megan's Law III] in its entirety." Com. v. Neiman, 84 A.3d 603, 613-616 (Pa. 2013). As a result, Megan's Law III was void ab initio in its entirety from 2005 through 2012.

SORNA or Megan's Law IV, December 20, 2012- February 21, 2018

Prior to the Supreme Court decision in Neiman, the General Assembly had replaced Megan's Law III with the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10 et seq., which became effective on December 20, 2012. See Com. v. McDonough, 96 A.3d 1067, 1070 (Pa. Super. 2014). SORNA or Megan's Law IV survived for approximately 5 years.

On July 19, 2017, the Pennsylvania Supreme Court majority held that SORNA, violated the ex post facto provisions of both the federal and state constitutions. PA CONST. art. I § 17; Commonwealth v. Muniz, 164 A.3d 1189, 1222. The Munizmajority held that Pennsylvania's SORNA is an unconstitutional ex post facto law when applied retroactively to those sexual offenders convicted of applicable crimes before the act's effective date and subjected to increased registration requirements under SORNA after its passage pursuant to both the federal and state constitutions. Id. No form of Megan's Law in Pennsylvania had ever been held to be punishment since its inception in 1995. As noted by the Superior Court in a later decision, Muniz was a "sea of change in the longstanding law of this Commonwealth..." Commonwealth v. Butler, 173 A.3d 1212, 1215, 2017 WL 4914155 (Pa. Super. 2017). In Butler, the Superior Court held that, in light of Muniz, the sexually violent predator proof provisions set forth in 42 Pa.C.S. § 9799.24(e) were unconstitutional.

In response, the General Assembly passed HB 631, which the Governor signed into law on February 21, 2018 (Act 10 of 2018). Thus, overturning what the Courts had done in Muniz and Butler. The new statute slightly amended Chapter H of Title 42, and enacted an entirely new Chapter I of Title 42. The new enactment bifurcated the placement of sexual offenders and sexually violent offenders into a former track similar to Megan's Law II (Chapter I), dubbed "SORNA II" and a new track similar to the prior SORNA law enacted in 2012 (Chapter H), referred to as "SORNA."

SORNA- 42 Pa.C.S. § 9799.10, et seq.- Chapter H-February 21, 2018- Present

Chapter H of Title 42 is in many aspects almost identical to the original SORNA, save several exceptions. First, the law is limited to only those offenses committed after December 20, 2012. The most important thing is when the action giving rise to the crime occurred, not the date of the conviction in determining which Chapter applies. There is now a mechanism for offenders may petition the court to seek removal from the list after a 25 year period on the registry. Also, some periodic verifications and reporting requirements may now be done remotely as opposed to in-person.

SORNA II- 42 Pa.C.S. § 9799.51, et seq.- Chapter I-February 21, 2018- Present

SORNA II largely tracks Megan's Law II. First, SORNA II is designed to ensure that those required to register under prior registration laws in Pennsylvania will continue to do so. It applies to two groups of persons: those who are convicted of enumerated offenses that occurred between April 22, 1996 and December 20, 2012, and those who were required to register under a prior registration law. 42 Pa.C.S. §§ 9799.51- 9799.52. The enumerated offenses are fewer than those required under SORNA, which models those offenses for which registration was required under Megan's Law II and III. See 42 Pa.C.S. § 9799.55 for list of offenses.

Offenders must register for either 10 years or life. Sexually violent predators must register for life. Registration length is determined by the offense alone. Offenders that were previously listed under SORNA as a "Tier Offender" have found, in some instances, that they have been removed from the Megan's Law registry altogether. This is because, they have now been properly reclassified as a 10 year offender. Credit is to be given for all time spent on the registry of the Commonwealth of Pennsylvania and arguably on the registry of another state. See T.L.J. v. Commonwealth, 143 A.3d 468 (Pa. Cmwlth. 2016) (registrant's time spent on Texas Megan's Law registry was to be credited as time spent on Pennsylvania's SORNA registry under equal protection clause). Alternatively, a registrant does not accrue any time spent on the registry if they are incarcerated during their period of registration. 42 Pa.C.S. § 9799.56(a)(3).

Unlike the original SORNA, SORNA II requires that an individual update their information with the Pennsylvania State Police within 3 days. 42 Pa.C.S. § 9799.56(a)(2). Under Megan's Law II, it was formerly 10 days. 42 Pa.C.S. § 9795.2(a)(2) (2003). Additionally, more information is shared and to more people than previously under Megan's Law. Here are the additional requirements/information sharing that were not previously in existence under Megan's Law II:

  • Information about the offender is on a public website. 42 Pa.C.S. § 9799.63
  • In addition to name, job, residence, photo, and school.
  • Now includes: "scars, marks, birthmarks, and tattoos." 42 Pa.C.S. § 9799.63(c)(viii).
  • Also includes: "license plate number and description of vehicle owned or registered to the offender." 42 Pa.C.S. § 9799.63(c)(ix). This provision was not included in the original SORNA. Notably, there is little difference between the registries relating to SORNA and SORNA II as Chapter I's provision states that the registry shall be "incorporated as part of the registry established under Subchapter H (relating to registration of sexual offenders). 42 Pa.C.S. § 9799.67(a).

Moreover, the risk of prosecution and incarceration for registration lapses is more prevalent than under former iterations of Megan's Law, especially Megan's Law II, because the failure to comply with SORNA II is felony. 18 Pa.C.S. § 4915.2(c). If a registrant does not appear for his verification date ("within 10 days before the date designated by the [PSP]"); does not appear within 3 days of a change; or gives incomplete or inaccurate information, he or she is subject to prosecution. Id.; 42 Pa.C.S. § 9799.56(d). Although PSP is to send notice, "[f]ailure to send or receive notice" does not relieve the duty to register. 42 Pa.C.S. § 9799.60(f). Even the occurrence of a "natural disaster," such as a flood, blizzard, or hurricane does not obviate the need to register. NO EXCUSES. 42 Pa.C.S. § 9799.55(c). SORNA II also increases the grading of the offenses. Under Megan's Law II, all ten year offenses were felonies of the third degree; SORNA II makes subsequent failures and failure to provide accurate information (which never existed under Megan's Law II) felonies of the second degree. 18 Pa.C.S. § 4915.2(b). Lifetime offenders also suffer severe penalties for non-compliance. 18 Pa.C.S. § 4915.2(c).