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SORNA / Megan's Law - Which Version Applies to You?

There have been 5 iterations of Pennsylvania’s Megan’s Law (3) and SORNA (2) to date but which one applies to you?

The newest iteration of the Sexual Offenders Registration and Notification Act (“SORNA”) (Act 10 and 29 of February 21, 2018, eff. imd.) bifurcates the types of sex offenders into two registration patterns based upon the date of the underlying offense.  This version– the 5th overall– has been challenged as unconstitutional on various grounds, including ex post facto, and will likely be decided by the PA Supreme Court in spring of 2020.

A Brief History of Megan’s Law and SORNA

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 I 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 I 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 Muniz majority 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; later passed in June of 2018 as Act 29). 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.

So, which version applies to me?  I’m entirely confused.

First, this IS confusing.  The Pennsylvania State Police, the PA Attorney General’s Office, criminal law practitioners and the courts have been grappling with the various formulations, applications and constitutionality of Megan’s Law/SORNA since it was passed in 1996. 

Recently, in Commonwealth v. Lippincott, ___ A.3d ___, 2057 EDA 2014, 2019 WL 1612677, (Pa. Super. 2019; en banc), the Superior Court held that the version of Megan’s Law or SORNA in effect at the time the offense occurred, is the version that is applicable to the defendant.  Accord Commonwealth v. Wood, ___ A.3d ___, 1193, 1194 MDA 2017, 2019 WL 1595871 (Pa. Super. 2019; en banc); Commonwealth v. Butcher, 1161 WDA 2018 (Pa. Super; NON-PRECEDENTIAL).  Not the version that is in place at the time of conviction, sentencing, when released from incarceration or at any subsequent point later.  The Court stopped short of addressing whether or not SORNA II or Act 10 and 29 were unconstitutional.  That matter will be before the Supreme Court in Commonwealth v. Torsilieri, 37 MAP 2018 and Lacombe, 35 MAP 2018.  As noted in my introductory paragraph, these two cases will be argued this fall and likely be decided in spring of 2020.

If you have concerns about your designation as a sexual offender or assignment as a “Tier Offender” on SORNA II, contact our office for a consultation.  You may also contact us for a free copy of our book, Defending Sexual Offenses–A Non-Lawyer’s Guide to Understanding the Criminal Process in Pennsylvania.