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SORNA II Internet Dissemination Provision Unconstitutional

Superior Court determines that the Internet Dissemination provisions of SORNA II violates ex post facto laws.

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

The Superior Court recently determined on October 23, 2019 that the internet dissemination provisions of SORNA II [Acts 10 and 29 of 2018] violate the federal prohibition against ex post facto laws. Com. v. Moore, ___ A.3d ___, 2019 Pa. Super. 320 (2019). The Appellant in Moore did not challenge the registration and reporting requirements. Only the internet dissemination provisions found at 42 Pa.C.S.A. § 9799.63. The Appellant in Moore had been convicted of sex offenses that occurred between 2004 and 2008 and was thus, subject to the provisions of Subchapter I of SORNA II (offenses occurring between 4/22/1996 but before 12/20/2012).

The Court found that the dissemination provisions to be identical to those that were determined to be unconstitutional by the Supreme Court in Com. v. Muniz, 164 A.3d 1189, 1216 (2017). Id Moore at p. 15. For instance, both provisions include names/aliases, year of birth, residential and employment addresses, photographs and physical descriptions, license plate and description of offender’s vehicle, compliance with registration provisions, and details of the offender’s crime(s). Accordingly, this one provision of SORNA II and not the entire Act was deemed unconstitutional as its retributive effect outweighed its non-punitive aims expressed by the Legislature. This provision was determined severable from the rest of the Act. Id. at 21.

The Court did leave the door open for the Legislature to narrowly tailor the dissemination provisions to not just anyone with Internet access, but to those specifically that required it– neighbors, daycares, law enforcement, schools, children and youth services located within the geographic area of the offender. Id. at 19-20.

As noted in an earlier blog, the Supreme Court is set to hear argument in November 2019 on two cases that directly impact the entirety of Acts 10 and 29– SORNA II. Com. v. Lacombe, 35 MAP 2018 and Com v. Torsilieri, 37 MAP 2018. A decision may be reached by spring of 2020.

If you are currently registered on SORNA II and wish to be removed, our office handles such actions. You may contact us to discuss your case at (717) 545-3032; elisabeth@shafferengle.com.

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