Retroactive Sex Offender Registration -SORNA- Unconstitutional

U.S. Supreme Court Refuses to take Government’s Appeal: Retroactive Application of Sex Offender Registration -SORNA- is Unconstitutional

For many people accused of sex offenses, sex offender registration is the most serious consequence of conviction—more so than even imprisonment. Your picture, name, address, contact information, place of work, and other personal information is listed on the internet. For some people, the police will also notify everyone in the neighborhood when they move.

In July of 2017, the Pennsylvania Supreme Court finally acknowledged that registration is punishment, and on Monday, January 22, the United States Supreme Court finalized their decision by refusing to hear the Commonwealth’s appeal.

This landmark case, Commonwealth v. Muniz, (available at https://law.justia.com/cases/pennsylvania/supreme-court/2017/47-map-2016.html), recognizes that sex offender registration is, in fact, punishment. That may seem obvious, but since the first Megan’s Law was passed in Pennsylvania in 1995, courts have consistently ruled that registration was not punishment, but rather a collateral civil consequence of conviction.

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) is the Commonwealth’s fourth version of Megan’s Law. It requires people convicted of sex offenses to register a whole host of personal information with the State Police, including name, nicknames, names, all phone numbers, social security number, any address where they live or get mail, where they’ll be staying if they take any trips, name and address of their employer, and information for any vehicles they have, among other things.

Registrants must report to the Pennsylvania State Police (depending on their classification) in person once a year for 15 years, twice a year for 25 years, or four times a year for life; known as Tier I, Tier II, and Tier III, respectively. A person’s tier depends mostly on the seriousness of the offense.

SORNA is actually Pennsylvania’s fourth version of Megan’s Law; and perhaps the biggest change was to registration. On top of adding more offenses to the registry, SORNA increased the intrusiveness of sex offender registration in a variety of ways and made the changes retroactive to people who were already required to register under a previous version of Megan’s Law.

So, why is Muniz important? If registration is punishment, it cannot be applied to anyone retroactively because of the ex post facto clauses of the United States and Pennsylvania Constitutions. Ex post facto is a rule of fair notice. It means that the government cannot retroactively punish conduct. It may only punish you if the law existed before you broke it.

Muniz holds that, because of the ex post facto clauses, for anyone who was already subject to sex offender registration before SORNA was passed, the harsher registration requirements in SORNA do not apply.

The facts of the case are a great example for how this works in practice. In 2007, Mr. Muniz was convicted of touching a twelve-year-old girl’s breasts. At the time, Megan’s Law III was in effect, and the offense he was convicted of carried a ten-year registration requirement. He went on the run before he could be sentenced, and he was caught and sentenced in 2014, after SORNA became law. Under SORNA, Mr. Muniz’s offense became a Tier III offense, requiring lifetime registration and four in-person visits to the state police every year.

The Pennsylvania Supreme Court, however, ruled that because SORNA was not in effect when he was convicted, it could not be applied to him years later. Again, the ex post facto clauses mean that you cannot be punished by a law passed after the offense happened. Since sex offender registration is punishment, subjecting Mr. Muniz to SORNA’s increased registration requirement would violate his constitutional rights. It also means that, for anyone who had been convicted of an offense listed in SORNA before SORNA was law, the harsher registration requirements do not apply.

If you or someone you know has been accused of a sex offense, or has been subjected to harsher registration requirements because of SORNA, it’s imperative to hire an experienced attorney NOW. At DiMuzio Zerounian, LLC, we have the knowledge and experience to guide you through this especially complicated and serious aspect of criminal law. Call our offices for a free consultation 267.479.4044.

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