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Pennsylvania Wanted to Harshen the Rules for Sex Offenders With Closed Cases. The Courts Said No.

It's a fancy legal term for a law that seeks to punish someone after the fact. It is a big no-no, banned by the U.S. and Pennsylvania constitutions.

By Riley Yates

Ex post facto.

It's a fancy legal term for a law that seeks to punish someone after the fact. It is a big no-no, banned by the U.S. and Pennsylvania constitutions.

For years, defense lawyers have bristled that the state's latest sex offender registration law does just that. And this week, the state Supreme Court agreed, in a closely watched ruling that will have sweeping impact.

At issue is the 2012 Sex Offender Registration and Notification Act, commonly called SORNA, which was enacted by a nearly unanimous legislature. It expanded the number of crimes that require someone to register as a sex offender or face arrest, and lengthened the amount of time most must do so.

When lawmakers approved the statute, they applied the new rules not only to future cases, but looking backward, to those that had already been decided. That forced a raft of ex-convicts to register for the first time, or to register for longer than they would otherwise have.

Those retroactive provisions violate the U.S. and Pennsylvania constitutions and cannot stand, the state's highest court declared Wednesday. The ruling was heralded by civil libertarians and criticized by prosecutors and victims' advocates.

The decision, authored by Justice Kevin Dougherty, represented a departure from previous Pennsylvania and federal court rulings that have upheld retroactive registration for Megan's Law, finding it passed constitutional muster because its aim is to protect and inform the public, and not punish the offender.

But the new law is different, Dougherty wrote, given its more stringent requirements. By increasing the years of registration, requiring routine in-person appearances before state police and publishing more information about an offender online, the rules became punitive in nature, he wrote.

"The court recognized that sex offender registration in its current form is over-broad, over-inclusive and has limited value in the way it is run," said Aaron Marcus, an attorney who represented the Defenders Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers in the case.

"It says what a lot of people for a long time have known: Sex offender registration is a punishment," Marcus said.

Marcus estimated that 4,000 to 4,500 offenders were retroactively forced to register for longer periods of time under the law. Given the ruling, those people are entitled to relief, he said.

Before the new rules took effect four and a half years ago, about 12,000 people were listed on the state Megan's Law website, which publishes sex offenders' photos, addresses and other information. Today, 21,298 offenders are listed.

Under the new law, offenders fall into three tiers of registration: 15 years, 25 years and life. Before, registration was either for 10 years or life.

Ryan Tarkowski, a spokesman for the state police, which administers the website, said the state is reviewing the ruling. He called it "a complex decision" that will "undoubtedly impact" the registry, though he could not estimate the number of names that may be removed.

Pennsylvania Victim Advocate Jennifer Storm called the ruling disheartening, saying survivors of sexual assault rely on the registry for peace of mind.

"For the victim out there whose rapist is released, I know where he's living. ... I know that he's switched jobs," Storm said. "It empowers them with this information so they know that they can avoid them."

The ruling involved the Cumberland County case of Jose M. Muniz, who was convicted in 2007 of indecent assault for groping a 12-year-old girl. Muniz fled the state before sentencing and wasn't apprehended until 2014, when he was arrested in Rhode Island.

At the time of the offense, Muniz's crime required him to register for 10 years. But under SORNA, he was required to register for life, a provision he challenged.

Lehigh County District Attorney Jim Martin said his office is evaluating the scope of the ruling and its impact on local cases. He was critical of the decision.

"It flies in the face of what the legislature intended," Martin said.

Northampton County Assistant District Attorney Rebecca Kulik predicted the ruling will affect "a number of people" prosecuted at the courthouse in Easton, though she said exactly how many is unknown.

Among them may be 41-year-old Shawn C. Williams of Easton, who is serving 8 1/4  to 30 years in state prison after being found guilty in 2016 of failing to register as a sex offender.

Williams insists he was under no such mandate when he was sentenced in 1998 for sexually assaulting a 17-year-old girl, for which he spent a decade in prison. His lawyer, James Brose, has challenged Williams' registration requirements as a retroactive punishment, and he welcomed the Supreme Court's decision.

"It's what they should have done," Brose said. "I thought the rulings in the past were skewed."

Another local defense attorney, Philip Lauer, said sex offender registration carries a stigma that can make it difficult to find a job or housing.

"It pretty much ends your ability to function in any way in society," Lauer said. "The way this actually works is that you create such a pariah in the community that this person simply can't function."

The court's decision wasn't unanimous. Chief Justice Thomas Saylor said he would have allowed the rules to apply retroactively.

"Accordingly, I respectfully dissent, as I believe that SORNA does not impose punishment and, thus, does not violate either the federal or state constitutions' ex post facto clauses," Saylor wrote.

(c)2017 The Morning Call (Allentown, Pa.)

Caroline Cournoyer is GOVERNING's senior web editor.
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