COMMONWEALTH OF PENNSYLVANIA, Aрpellee v. MIGUEL ANGEL PEREZ, II, Appellant
No. 1410 MDA 2013
IN THE SUPERIOR COURT OF PENNSYLVANIA
July 09, 2014
2014 PA Super 142
BEFORE: DONOHUE, ALLEN and MUNDY, JJ.
J-A10039-14. Appeal from the Judgment of Sentence July 24, 2013, Court of Common Pleas, Cumberland County, Criminal Division at No. CP-21-CR-0002975-2012
I join the Majority‘s determination that the appellant, Miguel A. Perez (“Perez“), has not shown by the “clearest proof,” as mandated in Smith v. Doe, 538 U.S. 84, 92 (2003), that the effects of Pennsylvania‘s Sex Offender Registration and Notification Act (“SORNA“),
As noted by the Majority, the first step of the Smith test is to ascertain the legislature‘s subjective intent. Perez concedes that the first prong of the Smith test is satisfied, citing to the General Assembly‘s declaration of policy in
I write solely to express my concern with the concession. The Pennsylvania Supreme Court accepted, at face value, the intention stated by the legislature in the policy declarations of two previous sex offender registration statutes (“Megan‘s Law I and Megan‘s Law II“).1 See Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa. 1999); Commonwealth v. Williams, 832 A.2d 962, 971-72 (Pa. 2003) (finding a policy statement identical to the one at issue in Gaffney to be a sufficient basis to determine legislative intent). However, the policy declaration in SORNA is not identical to the one in Megan‘s Law I and II. The policy declaration for both Megan‘s Law I and II stated:
It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by
providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means оf assuring public protection and shall not be construed as punitive.
Williams, 832 A.2d at 969 (emphasis added). SORNA‘s declaration of policy states, in pertinent part:
It is the intention of the General Assembly to substantially comply with the Adam Walsh Child Protection and Safety Act of 2006 and to further protect the safety and general welfare of the citizens of this Commonwealth by providing for increased regulation of sexual offenders, specifically as that regulation relates to registration of sexual offenders and community notification about sexual offenders. It is the policy of the Commonwealth to require the exchange of relevant information about sexual offenders among public agencies and officials and to authorize the release of necessary and relevant information about sexual offenders to members of the general public as a means of assuring public protection and shall not be construed as punitive.
The notable difference between the two declarations is that the language in Megan‘s Law I and II specifically states that it is the intention of the legislature to release information on sexually violent predators;
Megan‘s Law I and II made a clear distinction between sexual offenders and sexually violent predators in terms of registration and notification requirements. See
Over time the registration distinctions between sexual offenders and sexually violent predators have become less apparent. Individuals convicted of a Tier III offense under SORNA are subject to the same lifetime registration and quarterly in-person reporting requirements as sexually violent predatоrs. See
Additionally, I hesitate to conclude that the first prong of the Smith test is satisfied without further inquiry because there is an absence of analysis in Pennsylvania case law as to both the placement of the registration requirements within the statute and the enforcement procedures mandated by the current and previous sex offender registration statutes. While we ordinarily defer to the legislature‘s stated intent, determining whether a statutory schеme is civil or criminal necessitates an analysis under general principles of statutory construction. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). As the United States Supreme Court stated in Smith, “[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it
Unlike the Alaska statute at issue in Smith, all of SORNA‘s notification, registration, and procedural provisions are codified in one section of the State‘s “Judiciary and Judicial Procedure Cоde,” specifically under Chapter 97, titled “Sentencing.” See
In addition to the punitive nature of the provisions surrounding SORNA in the Code, the enforcement procedures “stand in the way of asserting that the statute‘s intended character is clearly civil.” Smith, 538 U.S. at 108 (Souter, J., concurring). The legislature made it a mandatory condition that the registration and notification requirements of SORNA be explained to offenders at sentencing, and a signed acceptance of notification must be obtained if possible.
The second step in the Smith analysis is to determine “whether the statutory scheme is so punitive either in purpose or effect as to negate the State‘s intеntion to deem it civil.” Smith, 538 U.S. at 92 (internal quotation marks and citations omitted). As the Majority aptly noted, the correct way to analyze whether the purpose and effect of a statute is punitive in nature is by using the seven factors established by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). These factors are “neither exhaustive nor dispositive, but are useful guideposts.” Smith, 538 U.S. at 97 (internal quotation marks and citations omitted).
I agree with the Majority that the first Kennedy factor weighs in favor of finding SORNA punitive; the statute clearly places an affirmative restraint on registrants. Similarly, I agree that factors three and five, which involve the requirement of scienter and whether the behavior to which the statute applies is already a crime, are given “little weight.” Maj. Op. at 14, 17. However, it must be emphasized that both factors go towards finding SORNA non-punitive.
I respectfully suggest that factors two and four of the Kennedy test require deeper analysis than that provided by the Majority. Factor two of the test looks to whether the registration requirement has historically been regarded as punishment. Here, the Majority fails to consider how mandatory in-person reporting impacts this prong of the analysis. In Smith, the Supreme Court stated that the argument that Alaska‘s registration system was parallel to probation or supervised release “has some force.” Smith, 538 U.S. at 101. The Court went on to reject the comparison, largely due to the absence of any mandatory conditions imposed on convicted sex offenders by the Alaska statute. Id. In contrast, the mandatory in-person verification requirement in
In Commonwealth v. Williams, the Pennsylvania Supreme Court found that probation has historically been considered a traditional form of рunishment. Williams, 832 A.2d at 977. Probation entails a set of mandatory conditions imposed on an individual who has either been released after serving a prison sentence, or has been sentenced to probation in lieu of prison time.
Like the conditions imposed on probationers, registrants under SORNA must notify the state police of a change in residency or employment.
The fourth Kennedy factor assesses whether SORNA has the effect of promoting deterrence and retribution. I agree with the Majority that the legislative findings indicate the statute has an intrinsic deterrent purpose, and that this does not immediately turn a valid regulatory scheme into a punishment. However, I find that the retributive effects of the statute extend farther than the mere increase in the length of registration.
Megan‘s Law I, the first sex offender registration statute enacted in Pennsylvania, required registrants to verify only their current address for a specified number of years, and did not provide for the public dissemination of that information. See Gaffney, 733 A.2d at 621. Subsequent versions of
In Williams, thе sex offender registration statute at issue did not explicitly give the Pennsylvania State Police the means to disseminate the information on the internet. Williams, 832 A.2d at 980. The Pennsylvania Supreme Court found that the language of the statute authorized only “electronic transmission” to individuals who requested the information on registered sex offenders. Id. The Court held that the “community notification provisions of the statute [were] fully explаinable without resort[ing] to theories of retribution and deterrence.” Id. at 981 (emphasis added). In contrast, SORNA expressly authorizes the use of a “public internet website”2 for the purpose of disseminating information on Pennsylvania‘s registered sex offenders.
The evolution of sex offender registration statutes in Pennsylvania mirrors the development of similar statutes in our neighboring state of Ohio. See State v. Cook, 700 N.E.2d 570 (Ohio 1998); State v. Ferguson, 869 N.E.2d 110 (Ohio 2008); State v. Williams, 952 N.E.2d 1108 (Ohio 2011). The Ohio Supreme Court recently held the latest sex offender statute punitive in purpose and effect, noting that the amendments to the statute over time made it increasingly more retributive. See Williams, 952 N.E.2d at 1112. Although the Ohio Supreme Court analyzed their version of SORNA under a state constitutional claim, I find its analysis of the increasingly retributive nature of the Ohio version of SORNA instructive. Like Pennsylvania‘s SORNA, the Ohio statute increased thе length of registration under a tier system; was codified under the Ohio criminal code; contained a mandatory in-person reporting requirement; and allowed for more information to be included on the internet database for community notification. Id. at 1111-13. Furthermore, in discussing the accessibility of information on the internet database, the Ohio Supreme Court stated, “[t]he stigma attached to sex offenders is significant, аnd the potential exists for ostracism and harassment ... [we] do not believe that we can continue to label these proceedings as civil in nature.” Id. at 1112.
The main purpose of SORNA, like the statute at issue in Commonwealth v. Williams, is to provide a mechanism for the citizens of Pennsylvania to inform themselves of potential threats in their neighborhoods.
In Smith, a majority of the United States Supreme Court rejected the argument that internet notification websites were akin to colonial shaming punishments. Smith, 538 U.S. at 98-99. The Court stated that historical shaming punishments “held the person up before his fellow citizens for face-to-face shaming,” and that humiliation is a collateral consequence of valid notification procedures. Id. The environment has changed significantly with the advancements in technology since the Supreme Court‘s 2003 decision in Smith. As of the most recent report by the United States Census Bureau, approximately 75 percent of households in the United States have internet
Factors six and seven of the Kennedy test are interrelated. They look to whether the statute is rationally related to an alternative purpose and if its provisions are excessive in relation to that alternative purpose. Perez virtually concedes both of these factors, stating that the statute‘s deterrent effect is “rationally related to the Commonwealth‘s compelling interest in seeking to prevent crimes of a sexual nature, particularly those committed
Recognizing that no one factor is dispositive, the final step in the two-prong Smith test is to balance all of the Kennedy factors to determine the purpose and effect оf the statute. As discussed, I conclude that factors one and four support the conclusion that SORNA is punitive. The analysis under factor two of the Kennedy test discloses such significant parallels between the rigid SORNA in-person registration requirements and probation that, in my view, it requires a conclusion that factor two weighs in favor of finding SORNA punitive. Additionally, I agree with the Majority that factors three, five, six and seven weigh towards finding SORNA non-punitive, although factors three and five are given little consideration.
The Supreme Court has established a high threshold of the “clearest proof” to overcome the legislature‘s preferred classification of a statute as non-punitive. Smith, 538 U.S. at 92. This, to me, is the closest of cases.