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SORNA - Act 10 And 29 of February 21, 2018 Faces Constitutional Challenge

The newest iteration of the Sexual Offenders Registration and Notification Act (Act 10 and 29 of February 21, 2018, eff. immed.) was determined by a County Judge in Montgomery to be unconstitutional on June 21, 2018. As a result, a new challenge to the newest and sixth iteration of Megan’s Law or SORNA has now arisen since the passage of the first Megan’s Law in 1996.

In July of 2017, the State Supreme Court struck down SORNA (the fifth iteration of Megan’s Law) as an unconstitutional exercise of the ex post facto provisions of the Constitution. In other words, it made actions into crimes after they were committed. An offender must have reasonable notice of what actions are illegal prior to their commission. Because the Court determined that the registration provisions of SORNA were tantamount to probation, therefore, punishment, anyone who had to register after the effective date of the Act on December 20, 2012, had their ex post facto rights violated.

As a result of the decision of the Supreme Court in Comm. v. Muniz, the Legislature enacted a second SORNA or the sixth iteration of Megan’s Law on February 21, 2018. Judge Carpenter in Montgomery County saw that the new law bore little change from the prior law. The new SORNA bifurcated two groups of offenders into those whose actions were committed between 1996 and prior to December 20, 2012- this group’s registration provisions were the equivalent of Megan’s Law II. The second group whose actions occurred between December 21, 2012 and to present, had a three tier system of registration- 15, 25 years and lifetime.

The Supreme Court is now slated to decide Comm v. Lacombe, 35 MAP 2018. That matter has just finished being briefed in April 2019 and will likely be decided after arguments sometime this Fall. A likely decision will occur next Spring (2020).

The Likely Outcome

The Court may decide that the entire SORNA is once again unconstitutional, in which case, offenders that are currently registered would have to be removed from the Pennsylvania State Police Registry. The Court could find that only parts are unconstitutional and judicially severe those provisions. Or, the Court could find that the Act does not violate the Constitutions of either the State or the United States. Scholars are betting that something will be declared unconstitutional, otherwise, the Supreme Court would not have taken the case up on appeal.

For a more thorough analysis of Megan’s Law and SORNA you may contact us and request a free copy of our 2018 Book, Defending Sexual Offenses.