COMMONWEALTH OF PENNSYLVANIA, Appellant v. GEORGE J. TORSILIERI, Appellee
No. 37 MAP 2018
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: June 16, 2020
[J-104-2019]
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Appeal from the Order of Chester County Court of Common Pleas, Criminal Division, dated July 10, 2018 at No. CP-15-CR-1570-2016.
ARGUED: November 20, 2019
JUSTICE BAER
The Chester County Court of Common Pleas declared Subchapter H of the Sex Offender Registration and Notification Act (“SORNA“),
I. Procedural History
The procedural history of this case is inextricably tied to intervening appellate court decisions declaring aspects of prior versions of SORNA unconstitutional and the legislative responses to those decisions, which we will address at the outset. On July 3, 2017, a jury convicted George Torsilieri (“Appellee“) of one count each of aggravated indecent assault,
While sentencing was pending, this Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), holding, as discussed in detail infra, that the registration and notification provisions of the then-applicable SORNA were punitive. A majority of this Court consequently concluded that the punitive provisions violated the constitutional protections of Pennsylvania‘s ex post facto clause when applied retroаctively to sexual offenders who were convicted prior to December 20, 2012, the effective date of SORNA.
In September 2017, the SOAB concluded that Appellee did not meet the criteria for designation as a sexually violent predator (“SVP“). Between the SOAB‘s determination and Appellee‘s sentencing, the Superior Court declared a different aspect of SORNA unconstitutional. In Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (”Butler I“), the Superior Court concluded that, based upon this Court‘s analysis in Muniz, the designation of an offender as an SVP required proof of the relevant facts beyond a reasonable doubt under Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).2
In December 2017, Appellee filed a combined post-sentence motion raising a weight of the evidence claim and a motion to reconsider the sentence, and the court held a hearing. On February 8, 2018, without reconvening the parties, the court granted Appellee‘s motion in part and denied it in part, altering the sentence only to allow work release after fourteen months, rather than eighteen months, and рarole after eighteen months, rather than twenty-two months. On February 16, 2018, the Commonwealth filed a motion for reconsideration, asserting that the trial court erred in resentencing Appellee without reconvening the parties.
While the motion for reconsideration was pending, Act 10 of 2018, Act of Feb. 21, 2018, P.L. 27, No. 10, became effective on February 21, 2018 (“Act 10“). As detailed infra, Act 10 responded to this Court‘s decision in Muniz and the Superior Court‘s decision in Butler I, declaring aspects of the prior version of SORNA unconstitutional. In relevant part, the amendments included a revised version of Subchapter H, which applies to Appellee who was convicted after the original enactment of SORNA.3
Soon thereafter, Appellee challenged the constitutionality of the newly amended Subchapter H by filing a Post Sentence Motion Nunc Pro Tunc and a Supplemental Post Sentence Motion Filed Nunc Pro Tunc. Appellee claimed that the registration and notification provisions of Subchapter H violated his due process rights under the Pennsylvania Constitution. The trial court granted Appellee the right to file his motions nunc pro tunc in March 2018.
Prior to a hearing on the pending motions, Appellee filed a subsequent motion on May 18, 2018, entitled “Post Sentence Motion to Bar Application of SORNA, Act 10 of 2018,
Once again, while these motions were pending in the trial court, the General Assembly enacted and the Governor signed an amended version of SORNA through Act 29 of 2018, Act of June 12, 2018, P.L. 140, No. 29, effective immediately on June 12, 2018 (“Act 29“). The parties do not suggest that the amendments of Act 29 alter the provisions of Subchapter H relevant to the issues currently under review. It is Act 29‘s iteration of Subchapter H of SORNA that is currently before this Court. For ease of discussion, we will refer to the current version of SORNA challenged by Appellee as “Revised Subchapter H” and the prior version generally as “SORNA“.
At the July 9, 2018 hearing on the cross-motions, the Commonwealth argued that a post-sentence motion hearing was not the appropriate proceeding for adjudicating the constitutionality of SORNA based upon scientific challenges to legislative fact-finding regarding the likelihood of recidivism and the effectiveness of registration systems.4 It emphasized that this Court in Muniz recently cited to conflicting studies concerning the rate of sexual offender recidivation and specifically deferred to the legislature, as the proper policy-making body, to address the complex societal issues, in the absence of a scientific consensus. Notes of Transcript (“N.T.“), July 9, 2018, at 16-17. Despite the Commonwealth‘s argument, the сourt allowed Appellee to introduce affidavits and supporting documents of three experts concluding that sexual offenders generally have low recidivism rates and questioning the effectiveness of sexual offender registration systems such as SORNA. The Commonwealth stipulated to the content of the exhibits but not their validity or relevance. Moreover, the Commonwealth did “not offer any rebuttal expert testimony nor [did it] offer any documents with respect to these witnesses.”
Id. at 19. It additionally argued that Revised Subchapter H addressed the constitutional deficiencies identified in Muniz and Butler I.
At the conclusion of the hearing and in a subsequent order dated July 10, 2018, the trial court acknowledged that it erred in failing to re-sentence Appellee in open court and attempted to correct the issue by vacating the February 8th order and re-imposing the reduced sentence in open court, after explaining its view that Appellee did not have a prior record, was youthful, and was a good candidate for rehabilitation.
The court then turned to Appellee‘s constitutional challenges.5 It concluded that the registration and notification provisions of Revised Subchapter H violated Appellee‘s right to due process by impairing his right to reputation, as protected by the Pennsylvania Constitution, through the utilization of an irrebuttable presumption. The court also concluded that the statute violated his right to due process under the United States and Pennsylvania Constitutions
The Commonwealth appealed to this Court in July 2018, raising thirteen claims of error and invoking this Court‘s jurisdiction over decisions of the Courts of Common Pleas declaring statutes unconstitutional,
II. Standard and Scope of Review
The constitutional issues before this Court raise questions of law for which our standard of review is de novo and our scope of review is plenary. Muniz, 164 A.3d at 1195. In addressing constitutional challenges to legislative enactments, we are ever cognizant that “the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society,” but also that “any restriction is subject to judicial review to protect the constitutional rights of all citizens.” In re J.B., 107 A.3d 1, 14 (Pa. 2014). We emphasize that “a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution.” Id. (internal quotations marks and citation omitted).
III. History of Sexual Offender Registration in Pennsylvania
The case at bar presents thе latest in a series of constitutional challenges to Pennsylvania‘s sexual offender registration and notification provisions spanning the last two decades. We review these cases and the legislative responses as they are relevant to the issues now on appeal.
In 1999, this Court deemed unconstitutional a provision of what has come to be known as Megan‘s Law I,
In the wake of Williams I and Gaffney, the General Assembly enacted Megan‘s Law II,
In Commonwealth v. Williams, 832 A.2d 962, 964 (Pa. 2003) (”Williams II“), this Court confronted the question of “whether the statute‘s registration, notification, and counseling requirements, applicable to individuals deemed sexually violent predators, constitute[d] criminal punishment,” which would have resulted in a violation of the United State Supreme Court‘s holding in Apprendi, requiring all factual determinations that result in increasing a defendant‘s punishment beyond the statutory maximum to be made by a jury and proven beyond a reasonable doubt.
In Williams II, this Court recognized that since its decision in Gaffney, the United States Supreme Court had adopted a test applicable to whether a sexual offender registration and notification statute was punitive. In Smith v. Doe I, 538 U.S. 84 (2003), the High Court, reviewing an ex post facto challenge to Alaska‘s version of Megan‘s Law, applied a test developed in Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963).8 As will be discussed in detail infra, this Court applied the Mendoza-Martinez test and concluded that the Megan‘s Law II registration, notification, and counseling provisions, applicable to SVPs, did
In 2007, this Court addressed whether the lifetime registration, notification, and counseling provisions applicable to SVPs constituted punishment implicating various constitutional challenges. Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007). In so doing, we reiterated that only a demonstration of the “clearest proof” can overcome a legislative assertion that a standard is civil rather than punitive. Id. at 877 (quoting Williams II, 832 A.2d at 973). Applying this standard, we recognized that the first six Mendoza-Martinez factors had been found to weigh in favor of finding the provisions non-punitive in prior cases considering Megan‘s Law II. Id. at 885. We, therefore, focused on the seventh factor: whether the procedure was excessive in comparison to the non-punitive purpose.
While we acknowledged the offenders’ proffered scientific studies arguably demonstrated that the risk of recidivism diminishes with age, we nevertheless held that the studies merely constituted “a counter-narrative to the evidence that the General Assembly relied upon in gauging the necessity and formulating the provisions of Megan‘s Law, which also is supported by empirical evidence and numerous studies.” Id. Accordingly, we concluded that the challengers failed to meet their burden of proving Megan‘s Law II unconstitutional by demonstrating that it was punitive. We emphasized that the “clearest proof” standard “cannot be satisfied merely by providing evidence militating in favor of a more generous account of the likelihood of rehabilitation than that found by the General Assembly in originally fashioning its legislation requiring registration of sex offenders.” Id. at 886.
In 2012, the General Assembly adopted the Sex Offender Registration and Notification Act (SORNA),
In adopting SORNA and implementing the federal requirements, the General Assembly set forth legislative findings and a declaration of policy in which it explained that “[t]he Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increаsed measure of protection to the citizens of this Commonwealth.”
In line with the federal requirements, the Act created a three-tier registration system based upon the underlying criminal offense, with Tier III applying to the most severe sexual offenses.
As directly relevant to the issues in the case at bar, the General Assembly additionally declared, “Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.”
As with its predecessors, SORNA‘s enactment spurred numerous constitutional challenges to the increased registration and reporting requirements, and many of the claims are echoed in the challenges currently before this Court. In In re J.B., 107 A.3d 1 (Pa. 2014), juvenile sexual offenders raised numerous constitutional challenges to SORNA‘s application including a claim that it violated their due process rights by utilizing an irrebuttable presumption that all juvenile offenders “pose a high risk of committing additional sexual offenses,”
Applying the first element of the doctrine, this Court concluded that the juveniles in J.B. had asserted a protected interest in their right to reputation, which is protected as a fundamental right under the Pennsylvania Constitution but is not specifically included in the federal constitution. Id. at 16. We additionally opined that their right to reputation had been infringed by the statutory declaration “that sexual offenders, including juvenile offenders, ‘pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.’
This Court next considered whether the presumption of a high risk of recidivism was universally true when applied to juveniles convicted of sexual offenses. We observed that the trial court in J.B. had credited research which indicated that juvenile offenders had low levels of recidivism. Id. at 17-18. Importantly, these findings drew support from recent United States Supreme Court decisions recognizing the fundamental differences between juveniles and adults including greater impulsivity due to lack of maturity, increased vulnerability to negative influences, and malleability of character. Id. at 18-19 (discussing Miller v. Alabama, 567 U.S. 460 (2012) (declaring unconstitutional mandatory life imprisonment without parole for crimes committed as a juvenile); Graham v. Florida, 560 U.S. 48 (2010) (prohibiting imposition of life without parole for non-homicide crimes committed as a juvenile); Roper v. Simmons, 543 U.S. 551 (2005) (forbidding imposition of death penalty on those who commit offenses as juveniles)). We observed that the trial court opined that “these distinctions between adults and juveniles are particularly relevant in the area of sexual offenses, where many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminality.” Id. at 19. Given this corroborated research, we concluded that the statutory presumption that juveniles sexual offenders were at high risk of recidivating was not universally true.
Finally, we evaluated whether reasonable alternative means existed to ascertain whether a juvenile offender was at high
Three years after deciding J.B., this Court additionally found SORNA violated adult offenders’ ex post facto rights due to its retroactive application to those convicted prior to its effective date of December 20, 2012. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality). The decision in Muniz hinged on whether the registration and notification provisions of SORNA were punitive, such that the protections of the ex post facto clause applied. The Court applied the Mendoza-Martinez test as adopted in Williams II but reached the opposite conclusion. The Court distinguished SORNA‘s requirements from those of Megan‘s Law II in a thorough analysis of each of the seven factors in the Mendoza-Martinez test.13 Weighing all seven factors, the Court concluded that SORNA was punitive, such that retroactive application of the provision violated Pennsylvania‘s ex post facto clause.14
Months later, the Superior Court applied our decision in Muniz sua sponte to a constitutional challenge to SORNA‘s SVP designation process in Butler I. It read our decision as providing that all SORNA registration requirements “are now deemed to be punitive and part of the criminal punishment imposed upon a convicted defendant.” Butler I, 173 A.3d at 1215. Based upon this conclusion, the Superior Court found that the SVP determination, which it viewed as punitive, hinged on a trial court‘s findings based only upon clear and convincing evidence.
In response to Muniz and Butler I, the General Assembly enacted Act 10, specifically declaring that “[i]t is the intention of the General Assembly to address the Pennsylvania Supreme Court‘s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the Pennsylvania Superior Court‘s decision in Commonwealth v. Butler, [173 A.3d 1212 (Pa. Super. 2017)].”
Presumably attempting to address this Court and the Superior Court‘s determinations that the prior registration and notification requirements were punitive, the General Assembly modified some of the SORNA provisions. Specifically, it created a process by which a Tier II or III offender‘s in-person semi-annual or quarterly registrations could be reduced after three years and replaced with annual in-person and semi-annual or quarterly phone registrations if the offender complies with all registration requirements for the first thrеe years and has not been convicted of another offense punishable by more than a year of incarceration.
IV. Analysis
With this background in mind, we address the Commonwealth and the Attorney General‘s challenges to the trial court‘s holdings that Revised Subchapter H violates numerous constitutional protections. The court‘s conclusions will be considered in two broad categories. First, the court held that Revised Subchapter H violates Pennsylvania‘s due process protections through the unconstitutional use of an irrebuttable presumption. The trial court considered this holding as implicating both procedural and substantive due process protections. As this Court and others have refused to “pigeonhole” the irrebuttable presumption doctrine into either due process category, we address this claim simply as an irrebuttable presumption challenge. Com., Dept. of Transp., Bureau of Driver Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (opining that “we do not believe it wise to pigeonhole whether an analysis of an irrebuttable presumption
Second, the trial court held that Revised Subchapter H‘s registration and notification provisions are punitive in nature such that thеy must comply with all constitutional and statutory protections applicable to sentencing. Based on the determination of punitive effect, the trial court concluded that the registration requirements, which can result in lifetime registration branding an offender as at high risk of recidivation, violated (1) the requirements of Apprendi and Alleyne, (2) imposed sentences in excess of the statutory maximum sentence, (3) constituted cruel and unusual punishment, and (4) violated the separation of powers doctrines by preventing trial courts from imposing individualized sentences. We recognize that several of these holdings implicate both federal and state constitutional provisions.
A. Trial Court‘s Consideration of Scientific Evidence
Prior to considering the merits of these constitutional determinations, we first attend to the Commonwealth and Attorney General‘s overarching assertion that the trial court‘s holdings are based on its improper admission of and reliance upon Appellee‘s expert affidavits calling into question the underpinnings of Revised Subchapter H. The Commonwealth parties’ arguments focus on two aspects of the trial court‘s analysis: (1) its refusal to defer to the legislative determination that sexual offenders as a cohort pose a danger to the public health due to their high risk of recidivation and (2) its rejection of the legislative conclusion that tier-based sexual offender registration systems, as exemplified by Revised Subchapter H, are an effective means of protecting the public from the danger posed by sexual offenders.
The Commonwealth asserts that a challenge based on evidence of recidivism rates and the effectiveness of tier-based registration systеms was recently presented to and rejected by this Court in Muniz. In that case, we opined, “In this context, we find persuasive [the] argument that policy regarding such complex societal issues, especially when there are studies with contrary conclusions, is ordinarily a matter for the General Assembly.” Muniz, 164 A.3d at 1217. The Commonwealth asserts that legislative findings are “entitled to a prima facie acceptance of their correctness.” Com. Reply Brief at 2. It relies upon this Court‘s reasoning that “[s]uch a rule is salutary because courts are not in a position to assemble and evaluate the necessary empirical data which forms the basis for the legislature‘s findings.” Id. (quoting Basehore v. Hampden Industrial Development Authority, 248 A.2d 212, 217 (Pa. 1968)). The Commonwealth emphasizes this Court‘s repeated acknowledgment that policy determinations should be left to the legislative branch. Id. at 2-3 (citing, inter alia, Commonwealth v. Hale, 128 A.3d 781, 785-86 (Pa. 2015), and Program Administration Services, Inc. v. Dauphin County General Authority, 928 A.2d 1013, 1017- 1018 (Pa. 2007)).
The Attorney General additionally contests the merits of the evidence relied upon by the trial court, asserting that Appellee cherry-picked the studies in support of his assertions and ignored contradictory research. Despite failing to provide contrary evidence during the post-sentence motion before the trial court, the Attorney General now highlights a recent study refuting Appellee‘s experts’ conclusions. Attorney General (“A.G.“) Reply Brief at 4 (citing Drs. Nicolas Scurich and Richard John, “The Dark Figure of Sexual Recidivism,” University of California Irvine,
not the proper forum for scientists to debate controversies and are ill equipped to determine scientific truth.” Id. at 8 (relying inter alia on Muniz, 164 A.3d at 1217, and Lee, 935 A.2d at 885). It maintains that, in the absence of scientific consensus, “legislative findings and public policy judgments of the General Assembly are not subject to judicial second-guessing.” Id. at 7.
We acknowledge the danger of courts overriding legislative determinations for all the reasons highlighted by the Commonwealth parties. As we have repeatedly observed, “the General Assembly‘s ability to examine social policy issues and to balance competing considerations is superior to that of the judicial branch.” Hale, 128 A.3d at 785–86 (citing Lance v. Wyeth, 85 A.3d 434, 454 & n.26 (Pa. 2014)). Indeed, as the Commonwealth parties emphasize, we recently opined on the same scientific dispute observing that “[a]lthough there are contrary scientific studies, we note there is by no means a consensus, and as such, we defer to the General Assembly‘s findings on this issue.” Muniz, 164 A.3d at 1217.
Nevertheless, our deference to legislative determination is not boundless. Indeed even in the cases relied upon by the Commonwealth, the limits are clear. In Hale, we opined that “substantial policy considerations” “are generally reserved, in the first instance, to the General Assembly,” but clarified that the policy determinations were nonetheless “subject to the limits of the Constitution.” Hale, 128 A.3d at 785-86. Similarly, in Program Administrative Services, we cabined our statement that “courts should not lose sight of the respective roles of the General Assembly and the courts in terms of establishing public policy” by nevertheless emphasizing that the General Assembly policy making function was “subject to constitutional limitations.” Program Admin. Services, Inc., 928 A.2d at 1017-18. These statements reaffirm that our underlying system of checks and balances requires the courts to serve as a backstop to protect constitutional rights of our citizens even where legislative social policy determinations are involved. See generally In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 715 (Pa. 2018) (“[A]s with all legal proceedings which affect fundamental individual rights, the judicial branch serves a critical role in guarding against unjustified diminution of due process protections for individuals whose right of reputation might be impugned.“)
Our conclusion in J.B., while not controlling given its focus on juvenile development, demonstrates that a viable challenge to legislative findings and related policy determinations can be established by demonstrating a consensus of scientific evidence where the underlying legislative policy infringes constitutional rights. In such cases, it is the responsibility of the court system to protect the rights of the public. Indeed, we have a particular responsibility in regard to
Accordingly, we respectfully reject the Commonwealth parties’ categorical contention that the trial court lacked the authority to consider Appellee‘s scientific evidence and to question the validity of the General Assembly‘s findings and policy determinations in regard to the contention that Appellee‘s various constitutional rights were violated by the statutory provisions based upon the legislative determinations. Nevertheless, we remain mindful that “the wisdom of a public policy is one for the legislature, and the General Assembly‘s enactments are entitled to a strong presumption of constitutionality rebuttable only by a demonstration that they clearly, plainly, and palpably violate constitutional requirements.” Shoul v. Com., Dept. of Transp., Bureau of Driver Licensing, 173 A.3d 669, 678 (Pa. 2017).
Based on the evidence relied upon by the trial court, Appellee poses colorable constitutional challenges to
Appellee first presents a body of research indicating that adult sexual offender recidivism rates have been improperly exaggerated, including through citations by this Court and the United States Supreme Court. As an example, he references the Courts’ repeated declaration that sexual offenders have a “frightening and high” risk of recidivism, which in turn provided support for upholding various iterations of sexual offender registration systems. Appellee Brief at 17 (citing Smith, 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34 (2002))); see also Lee, 935 A.2d at 882. Appellee claims that this oft-quoted language derives not from rigorous scientific evidence but from an unsupported claim in “a 1988 National Institute of Corrections training manual, which in turn cited a 1986 Psychology Today
Appellee additionally presents research indicating that the tier-based registration systems increase, rather than decrease, danger to the public because the reporting systems stigmatize the offender and their families and remove them from support systems. He claims that research reveals that the most effective systems for identifying recidivism are those that utilize empirically derived assessment tools based on “identified risk factors that correlate well with observed recidivism levels,” in contrast to the use of tier systems based upon the underlying criminal offense, which fail to take into account individual risk factors. Appellee Brief at 57.
Nevertheless, we are unable to conclude based upon the record currently before this Court whether Appellee has sufficiently undermined the validity of the legislative findings supporting
In framing the remand, we must first determine the extent to which each of the trial court‘s conclusions of unconstitutionality rested on its crediting of the Appellee‘s scientific evidence. Accordingly, we now address the court‘s specific determinations on each of Appellee‘s claims.
B. Due Process- Irrebuttable Presumption
We turn first to the trial court‘s conclusion that the registration and notification provisions of
legislature‘s use of the irrebuttable presumption that all sexual offenders pose a high risk of sexual recidivism. Tr. Ct. Op. at 43 (citing
Applying these factors, the court first opined that “[t]here can be no real disagreement that the label of high risk dangerous sex offender impacts one‘s fundamental right to reputation.” Id. at 45. In coming to this conclusion, the court relied upon the scientific research presented during the hearing demonstrating that the label of sexual recidivist stigmatized offenders and subjected them to difficulty finding housing, employment, and education as well as erected barriers to the establishment of “pro-social relationships with others.” Id. at 43 (citing scientific research admitted into evidence). The court opined that “[t]he public declaration, based on faulty premises . . . , that all sexual offenders are dangerous recidivists only serves to compound the isolation and ostracism experienced by this population and sorely diminish their chances of productively reintegrating into society.” Id. at 44. The court additionally stated that the registration and notification provisions applied not only to sexual offenses but also to crimes such as unlawful restraint,
Addressing the second prong concerning whether the presumption is universally true, the court again looked to the reseаrch presented by Appellee. The court observed that the research indicated that eighty to ninety percent of all sexual offenders are never reconvicted for a sexual crime. Id. at 45. Moreover, the trial court opined that Appellee fell into a subgroup of offenders without “criminal backgrounds, significant life problems, or the prognosis typical of offenders.” Id. at 46-47. The research reviewed by the trial court revealed that this subgroup has even lower recidivism rates. Id. at 47.
The court acknowledged this Court‘s observations in Muniz that resolution of the conflicting evidence regarding recidivism rates was better suited for legislative determination. Nevertheless, the trial court opined,
We have no issue with the Court‘s determination that policy is within the domain of the Legislature; we take no issue with the Legislature‘s policy that the protection of the public from dangerous sex offender recidivists is a compelling government interest. It is the Legislature‘s manner of implementing that policy, of branding all as evil for the actions of a most perverse few, that we reject. Thus, contrary to the Commonwealth‘s argument that Muniz, supra forecloses any further judicial inquiry regarding the constitutionality of SORNA, we would respectfully submit that neither our hands, nor those of [the Pennsylvania Supreme Court], are so tied.
Id. at 47. Instead, the trial court opined that, based upon the research presented, “the presumption that all sex offenders are dangerous recidivists cannot be universally true.” Id. at 47-48.
The court turned to the third prong of the irrebuttable presumption analysis concerning
The trial court emphasized that this Court, in J.B., recently determined that
[I]t is no great leap to conclude that the application of individualized risk assessments via a pre-deprivation hearing for adult offenders is not only possible, but is also actually available to the criminal justice system, and constitutes a reasonable, more effective alternative for identifying high-risk recidivists and reducing sexual re-offending than the draconian public shaming/warning procedures so reminiscent of colonial-age stocks and scarlet letters, currently in place for all adult sexual offenders regardless of risk under [Revised Subchapter H].
Tr. Ct. Op. at 49.
The court rejected the Commonwealth‘s argument that the 2018 amendments to
Next, the court rejected the suggestion that the underlying trial provided an opportunity to contest the application of the registration provisions. The court observed that the trial merely provided an opportunity to contest whether the defendant committed the crime but did not provide an avenue to contest the applicability of the presumption of a high likelihood of recidivation.
Finding all prongs of the irrebuttable presumption doctrine met, the trial court concluded that
C. Challenges based upon the trial court‘s conclusion that Revised Subchapter H‘s registration and notification provisions are punitive
As indicated above, the trial court‘s remaining holdings finding
1. Mendoza-Martinez factors
The two-part Mendoza-Martinez inquiry is well established in this Commonwealth: “We first consider whether the General Assembly‘s ‘intent was to impose punishment, and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or effect as to negate the legislature‘s non-punitive intent.‘” Muniz, 164 A.3d at 1208 (quoting Williams II, 832 A.2d at 971).
There is no dispute in regard to the first step as the General Assembly has repeatedly reenacted the unambiguous statement that the рurpose of the registration and notification provisions “shall not be construed as punitive.”
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.
Indeed, the most recent amendments clarified that in enacting
Accordingly, we turn to the second phase of the Mendoza-Martinez test, which considers the following seven factors in determining whether the effect of a statute is punitive:
- Whether the sanction involves an affirmative disability or restraint;
- Whether it has historically been regarded as a punishment;
- Whether it comes into play only on a finding of scienter;
-
Whether its operation will promote the traditional aims of punishment - retribution and deterrence; - Whether the behavior to which it applies is already a crime;
- Whether an alternative purpose to which it may rationally be connected is assignable for it;
- Whether it appears excessive in relation to the alternative purpose assigned.
Muniz, 164 A.3d at 1200 (quoting Mendoza-Martinez, 372 U.S. at 168–69) (formatted for readability). We emphasize that only the “clearest proof” of punitive effect can override the legislature‘s stated intent that the statute be construed as non-punitive. Muniz, 164 A.3d at 1208; Lee, 935 A.2d at 876-77.
As we have found in our recent decisions and as the parties before us agree, Factor 3, regarding a finding of scienter, and Factor 5, addressing whether the behavior is a crime, provide little weight to the analysis of whether sexual offender registration and notification provisions are punitive. Muniz, 164 A.3d at 1214, 1216. This Court in regard to Factors 3 and 5, following the United States Supreme Court, has observed that “where the concern of a sex offender registration statute like SORNA is protecting the public against recidivism, past criminal conduct is ‘a necessary beginning point.‘” Id. at 1214 (quoting Smith, 538 U.S. at 105). Given the agreement that these factors provide little guidance in determining whether the statute is punitive, we will not discuss them further in this analysis.
a. Factor 1: Whether the sanction involves an affirmative disability or restraint
Applying the first Mendoza-Martinez factor, the trial court acknowledged this Court‘s recent analysis in Muniz. In Muniz, this Court emphasized the distinctions between the registration requirements of the then-applicable
This Court in Muniz additionally rejected the Commonwealth‘s attempt to analogize the quarterly in-person updates to the monthly counseling sessions for SVPs, which were deemed non-punitive in Williams II. We distinguished the in-person updates in
The trial court in the case at bar recognized that the amendments to
We acknowledge that the court‘s analysis of this factor does not overtly rely upon Appellee‘s scientific evidence. Nevertheless, the trial court‘s recounting of the impact of the registration updates and the publication of the relevant data are to some extent informed by the expert‘s evidence of the negative effects of registration on sexual offenders, as discussed in more detail in regard to other factors below. Accordingly, in balancing all of the factors, the court may have weighed this factor more heavily as punitive because of the court‘s acceptance of Appellee‘s expert evidence. Therefore, we find it appropriate for the trial court to reevaluate this factor after a full hearing on the scientific evidence.
b. Factor 2: Whether it has historically been regarded as a punishment
In Muniz, this Court opined that the registration and notification provisions of
We additionally opined that the in-person reporting requirements of
The trial court in the case at bar concluded that “nothing about the [
c. Factor 4: Whether its operation will promote the traditional aims of punishment - retribution and deterrence
In Muniz, we distinguished
We also concluded in Muniz that the retributive aspects of the registration provisions were greater than in the sexual offender registration provisions reviewed in Smith or Williams II, observing that “SORNA has increased the length of registration, contains mandatory in-person reporting requirements, and allows for more private information to be displayed online.” Muniz, 164 A.3d at 1216. Given the increased deterrent and retributive aspects of
In the case at bar, the trial court concluded that the analysis of this factor in Muniz controlled as “[t]he Act 10 amendments to SORNA did nothing to alter the deterrent and retributive effects of the pre-amendment Act.” Tr. Ct. Op. at 68. It emphasized that
While this factor could arguably be addressed solely by comparing the provisions of the current
d. Factor 6: Whether an alternative purpose to which it may rationally be connected is assignable for it
The appellant in Muniz conceded that the sixth Mendoza-Martinez factor weighed in favor of finding
In response to these arguments of amici in Muniz, this Court, understandably, concluded that the evidence was not sufficient to overturn the legislative finding that “[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.” Id. at 1217 (quoting
As has been repeatedly quoted by the Commonwealth parties in this case, we additionally opined:
We recognize there are studies which find the majority of sexual offenders will not re-offend, and that sex offender registration laws are ineffective in preventing re-offense; we also recognize there are studies that reach contrary conclusions. In this context, we find persuasive [the] argument that policy regarding such complex societal issues, especially when there are studies with contrary conclusions, is ordinarily a matter for the General Assembly. See e.g., Commonwealth v. Hale, [128 A.3d 781, 785 (Pa. 2015)] (where “substantial policy considerations” are involved “such matters are generally reserved . . . to the General Assembly“).
Id. at 1217. We continued reasoning that “[a]lthough there are contrary scientific studies, we note there is by no means a consensus, and as such, we defer to the General Assembly‘s findings on this issue.” Id. Accordingly, we concluded that “there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive.” Id.
In regard to the sixth factor, the trial court acknowledged this Court‘s analysis in relation to
Even though the trial court expressly limited the impact of this factor on its eventual balancing of the seven factors, it cannot be disputed that the trial court‘s evaluation of the Appellee‘s experts’ evidence affected its view of the case. Indeed, it expressly references its evaluation of this factor in its consideration of Factor 7. Thus, the trial court‘s analysis of this factor also counsels in favor of a remand to develop the record.
e. Factor 7: Whether it appears excessive in relation to the alternative purpose assigned.
This Court in Muniz recognized that it had expressed hesitation concerning this factor in Williams II regаrding the absence of any procedure by which, in that case, an SVP could later assert that he or she no longer posed a danger to the public. Notably, however, the SVP determination process in Williams II entailed an initial individualized assessment of risk of danger. In contrast, we recognized in Muniz that “SORNA categorizes a broad range of individuals as sex offenders subject to its provisions, including those convicted of offenses that do not specifically relate to a sexual act.” Muniz, 164 A.3d at 1218. We, therefore, concluded that “SORNA‘s requirements are excessive and over-inclusive in relation to the statute‘s alternative assigned purpose of protecting the public from sexual offenders.” Id.
The trial court recited our analysis in Muniz and opined that
f. Balancing of Factors
Weighing the factors in Muniz, this Court concluded that all of the relevant factors, other than Factor 6, weighed “in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose.” Muniz, 164 A.3d at 1218. Specifically, we held that “SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditiоnal aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose.” Id.
Likewise, weighing all the factors, the trial court in the case at bar opined that the balancing applied in Muniz was applicable to
We observe that the scientific evidence presented by Appellee during the post-sentence motion arguably influenced the trial court‘s consideration of all five relevant factors and overtly drove the analysis of three. Accordingly, we conclude that its labeling of
The trial court‘s conclusion that
V. Conclusion
It is abundantly clear that the trial court‘s various declarations of
Unfortunately, the procedural posture of this case prevents tidy resolution of the matter by this Court. While Appellee presented a colorable argument that the General Assembly‘s factual presumptions have been undermined by recent scientific studies, we are unable to affirm the trial court‘s several conclusions finding
Rather than remanding, the Dissent in favor of affirmance independently examines the scientific evidence cited by the Commonwealth and determines that it supports the conclusion that prior precedents have been mistaken regarding the high rates of recidivism relied upon to support sexual offender laws. Dissenting Op. at 2 (Donohue, J., dissenting). As support, the Dissent correctly quotes the study referenced by the Commonwealth as acknowledging “a substantial gulf between the sexual recidivism rates observed in the empirical studies and the rates supposed by the laity and endorsed by the [United States] Supreme Court.” Id. at 16 (quoting Scurich at 4).
The authors of the study, however, do not concede the validity of that gap in terms of actual recidivism as opposed to the recidivism observed in some studies. Instead, without endorsing a specific reoffense rate or taking a “position on the propriety of sexual offender legislation[,]” they nevertheless “question challenges to that legislation to the extent [the challenges] are based on current empirical assertions that sexual offender recidivism is ‘low.‘” Scurich at 4. The paper then sets forth various factors of the empirical studies, such as those relied upon by Appellee, that underestimate the recidivism rate of sexual offenders.
We generally agree with the Dissent‘s analysis that “the relevant question should not be whether convicted sexual offenders are committing unreported sexual crimes, but rather whether sexual offenders commit more sexual crimes than other groups not subject to similar registration laws.” Dissenting Op. at 18 (Donohue, J., dissenting). We respectfully disagree, however, with the Dissent‘s conclusion that the legislature‘s finding that sexual offenders pose a higher risk of recidivation has “been debunked,” id, to such a degree as to justify overturning the legislature‘s policy determination that “[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.”
However, reversal is likewise inappropriate because it was the Commonwealth‘s tactics at the post-sentence hearing that potentially prevented the necessary development of the record. As noted, the Commonwealth forwarded an argument that the trial court did not have authority to overturn the legislative policy determinations based upon the proffered scientific evidence, an argument we refuted in J.B. and continue to reject today. As stated above, the courts of this Commonwealth have the inherent authority as a co-equal branch to strike legislative acts if they violate the rights protected by our Constitutions. J.B., 107 A.3d at 14 (citing Nixon v. Com. Dept. of Pub. Welfare, 839 A.2d 277, 286 (Pa. 2003)).
We recognize that the Commonwealth parties relied upon our recent statement in Muniz, 164 A.3d at 1217, rejecting similar expert evidence calling into question the legislature‘s assessment of sexual offender recidivism risks and the effectiveness of tier-based registration systems. In light of this reliance, we emphasize that all cases are evaluated on the record created in the
Nevertheless, we also emphasize that it will be the rare situation where a court would reevaluate a legislative policy determination, which can only be justified in a case involving the infringement of constitutional rights and a consensus of scientific evidence undermining the legislative determination. We reiterate that while courts are empowered to enforce constitutional rights, they should remain mindful that “the wisdom of a public policy is one for the legislature, and the General Assembly‘s enactments are entitled to a strong presumption of constitutionality rebuttable only by a demonstration that they clearly, plainly, and palpably violate constitutional requirements.” Shoul, 173 A.3d at 678.
As is apparent from the trial court findings, the evidence presented by Appellee provides a colorable argument to debunk the settled view of
Accordingly, we vacate that portion of the trial court‘s order declaring the registration requirements of
Justices Todd, Dougherty and Wecht join the opinion.
Justice Donohue
Justice Mundy files a dissenting opinion in which Chief Justice Saylor joins.
Notes
(1) 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.
(2) 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.
Similarly, while the Dissent correctly recognizes that “[t]he Commonwealth stipulated to the content but not the validity or relevance” of the Appellee‘s experts’ affidavits, it later suggests the opposite by opining that the Commonwealth stipulated to Appellee‘s conclusion that the recidivism risk was “nowhere near the ‘frightening and high’ rate assumed by” prior cases. Dissenting Op. at 1, 5 (Donohue, J., dissenting). The Attorney
Tr. Ct. Op. at 61.They cannot change their address without reporting it to the police. They cannot begin school or switch schools without notifying the police. They cannot buy a new car without informing the police. Nor can they take a new job without reporting it to the police, so that this fact, along with the rest of the personal aspects of their lives, can be further disseminated to anyone in the world via the Internet.
Muniz, 164 A.3d at 1215 n.20.interference with custody of children,
18 Pa.C.S. § 2904 ; luring a child into a motor vehicle or structure,18 Pa.C.S. § 2910 ; indecent assault,18 Pa.C.S. § 3126(a)(1) - (6), (8) ; invasion of privacy,18 Pa.C.S. § 7507.1(b) ; and obscene and other sexual materials and performances,18 Pa.C.S. § 5903(a)(3)(ii), (4)(ii), (5)(ii), (6) . SORNA predicate offenses that may have a maximum incarceration term of two years or less under federal law are as follows: video voyeurism,18 U.S.C. § 1801 ; misleading domain names on the internet,18 U.S.C. § 2252B ; and abusive sexual conduct,18 U.S.C. § 2244 .