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Pennsylvania Sex Offender Registry Act Unconstitutional as Applied to Low-Risk Non-Sex-Offender

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From Friday’s decision in Commonwealth v. Muhammad, written by Justice Stabile and joined by Justices Panella and Musmanno:

Based on Appellant’s convictions for interference with custody of children (“interference”) and conspiracy to interfere with custody of children (“conspiracy”), the trial court ordered Appellant to register as a sexual offender under Revised Subchapter H of the Sexual Offenders Registration and Notification Act (“SORNA”) as a Tier I offender. We hold that SORNA is unconstitutional as applied to Appellant, because it creates an irrebuttable presumption that her convictions for interference and conspiracy make her a risk to commit additional sexual offenses….

The present case arose from a custody dispute between Khalid and Angelita, the father and mother of a three-year-old child, Pharaoh. Appellant assisted Khalid in taking Pharaoh away from Angelita by (1) driving with Khalid and Lisa Walker to Pharaoh’s home in Reading, (2) pulling Angelita’s daughter, Liajah, away while Pharaoh was placed in the car, (3) leaving Reading in the car with Khalid, Pharaoh, Liajah, and Lisa, and (4) driving to a train station in Philadelphia, where Pharaoh was transferred to another vehicle.

The interference and conspiracy convictions would normally require, under the Pennsylvania SORNA, that the defendant register as a sex offender; but this, the appellate court concluded, was unconstitutional in this case:

SORNA prescribes that “[s]exual offenders pose a high risk of committing additional sexual offenses[.]”Based on this presumption, SORNA requires the State Police to maintain a statewide registry of sexual offenders that lists substantial information concerning the offenders. Further, the State Police must disseminate this information to the public through a website that is searchable by “any given zip code or geographic radius set by the user.” At sentencing, the trial court must, inter alia, inform a sexual offender of the offender’s duty to register and require the offender to read and sign a form stating that the duty to register under this subchapter has been explained….

In J.B. and Torsilieri, the [Pennsylvania] Supreme Court analyzed whether SORNA utilizes an unconstitutional irrebuttable presumption. In J.B., several juvenile offenders argued that SORNA violated their due process rights by including an irrebuttable presumption that all juvenile offenders “pose a high risk of committing additional sexual offenses,” the same language that Appellant challenges here. The Court agreed. It held that SORNA’s presumption impinges upon the juvenile offenders’ right to reputation embodied within Article I, Section 1 of the Pennsylvania Constitution without giving them a meaningful opportunity to challenge the presumption.

Next, based on research credited by the trial court, the Court concluded that the presumption was not universally true. Finally, the Court observed that SORNA already provides for individualized assessment of adult sexual offenders as sexually violent predators and juvenile offenders as sexually violent delinquent children. Thus, it was possible to use a similar individualized assessment process to consider whether juvenile sexual offenders posed a high risk of recidivating.

In Torsilieri, an adult defendant convicted of aggravated indecent assault and indecent assault claimed that SORNA was unconstitutional on its face by creating an irrebuttable presumption that all sexual offenders pose a high risk of recidivation…. [The Pennsylvania Supreme] Court acknowledged that the defendant presented “colorable constitutional challenges” through the scientific research he presented to the trial court in expert affidavits, [and] held that remand was necessary “to allow the parties to present additional argument and evidence to address whether a scientific consensus has developed to overturn the legislative determinations in regard to adult sexual offenders’ recidivation rates and the effectiveness of a tier-based registration and notification system as they relate to the prongs of the irrebuttable presumption doctrine.” …

The first prong of the irrebuttable presumption test requires us to examine whether, as applied to this case, SORNA encroaches on a due process right of Appellant. We find guidance on this subject from J.B.’s discussion of SORNA’s impact on juveniles’ due process right to reputation…. “[R]eputation is an interest that is recognized and protected by our highest state law: our Constitution.” It is beyond serious dispute that registration as a sex offender creates a presumption—indeed, a stigma—that Appellant is a dangerous adult who is likely to commit further sexual offenses. This mark of disgrace profoundly affects her ability to obtain employment, education, and housing, which in turn impedes her ability to function as a productive member of society.

Furthermore, SORNA fails to provide Appellant a meaningful opportunity to rebut the presumption that she is a danger to re-offend. She was automatically designated a Tier I sexual offender based on her convictions for interference and conspiracy, and she will not have any opportunity to challenge this designation or claim that she has been rehabilitated throughout the fifteen-year registration period. These factors convince us that SORNA, as applied to this case, creates an irrebuttable presumption that encroaches upon Appellant’s constitutional interest in her reputation.

The second prong of the irrebuttable presumption test calls for analysis whether SORNA’s presumption that sexual offenders present a high risk of recidivating is true as to Appellant. It plainly is not. Prior to this case, Appellant had no criminal history. Furthermore, there is no evidence in this case that Appellant committed or intended to commit any acts of a sexual nature….

The final prong of the irrebuttable presumption test requires examination of whether reasonable alternatives exist to determine whether Appellant is a high risk to commit additional sexual offenses in the future. Appellant pointed out in her sentencing memorandum and again in this appeal that two such alternatives exist.

First, there are well-established risk assessment tools employed in Pennsylvania. The Sexual Offenders Assessment Board (“SOAB”), the entity created by the legislature to perform sexually violent predator (“SVP”) assessments, has identified a variety of “actuarial instruments” that are available and preferable for determining risk assessments. These tools “should be routinely used” because they can help “distinguish between low-risk and high-risk sex offenders.” Failure to do so “wastes resources” because “most sex offenders are never reconvicted for a sexual offense.” Second, the SOAB itself could perform an individualized assessment, similar to the tests it performs to determine whether individuals are SVP’s. Neither of these alternatives was used here.

For these reasons, we hold that, as applied to Appellant, SORNA’s provision that sexual offenders pose a high risk of recidivating is an irrebuttable presumption that clearly, palpably, and plainly violates Appellant’s constitutional right to reputation. Appellant’s convictions for interference and conspiracy to interfere with custody of children were not sexual offenses.

The fact that Appellant had a prior record score of zero and her presentence report acknowledged that Appellant’s offenses were “totally out of character” for her underscore the illegality of SORNA’s presumption as applied to Appellant. Nothing in this record suggests that Appellant is a high risk to commit additional (or any) sexual offenses….


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Eugene Volokh

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