Lead Opinion
Justice Dougherty delivers the Opinion of the Court with respect to Parts I through IV and VII, and announces the Judgment of the Court. The Opinion is joined in full by Justices Baer and Donohue, and by Justices Todd and Wecht with the exception of Parts V and VI.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Chief Justice Saylor files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.
I. Procedural History Related to Current Appeal
On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend’s twelve-year old daughter.
The Superior Court affirmed the ruling of the trial court in a three-page unpub
Appellant filed a petition for allowance of appeal raising two questions regarding SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. § 9799.14:
1) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Federal Constitution? ;
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania Constitution?
This Court granted review of both questions. Commonwealth v. Muniz,
II. Summary of Arguments and Applicable Standards of Review
Briefly, appellant argues SORNA unconstitutionally increases the length of registration and notification requirements for sex offenders subject to its retroactive application. Appellant claims despite the General Assembly’s declaration SORNA is not to be construed as punitive, the statute’s text and structure make clear the legislative objective was to punish. Appellant asserts SORNA is so punitive in purpose and effect that the General Assembly’s intent to deem it civil is undermined. Thus, appellant claims, SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, appellant argues the Pennsylvania Constitution provides greater protection than the United States Constitution. Appellant argues SORNA is therefore unconstitutional as applied to someone like him whose conviction predated its enactment.
In response, the Commonwealth argues the decision of the United States Supreme Court in Smith v. Doe,
As we consider the parties’ arguments in more detail below, we recognize there is a general presumption that all lawfully enacted statutes are constitutional. Commonwealth v. Lee,
III. Ex Post Facto Laws Generally
Before turning to the history of Pennsylvania sex offender laws and the specific provisions of SORNA at issue in this appeal, we first explain the general purpose of ex post facto prohibitions. The central concern in incorporating ex post facto clauses in both federal and state constitutions was to “assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation” following the American Revolution. Miller v. Florida,
1st. Every law that makes an action done before the passing of the íaw, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law-annexed to the crime, when-committed. 4th. Every law that alters-the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
Calder,
IV. History of Pennsylvania Sex Offender Laws, Applicable Case Law, and SORNA
A. History of Pennsylvania Sex Offender Laws Prior to SORNA
In Commonwealth v. Williams,
In 1995, the General Assembly amended the Sentencing Code by adding Subchapter H, entitled “Registration of Sexual Offenders,” codified at 42 Pa.C.S. §§ 9791-9799, and generally referred to as “Megan’s Law” (hereinafter, “Megan’s Law I”). Among other things, Megan’s Law I established a procedure for adjudicating certain offenders—namely, those that committed one of the predicate offenses listed in the statute—as “sexually violent predators.” The mandated procedure included a postconviction, pre-sentence assessment by the Board, followed by a hearing before the trial court. At the hearing, the offender was presumed to be a sexually violent predator and bore the burden of rebutting such presumption by clear and convincing evidence. If the individual was adjudicated a sexually violent predator, he was subjected to an enhanced maximum sentence of life imprisonment for the predicate offense, as well as registration and community notification requirements that were more extensive than those applicable to an offender who was not adjudicated a sexually violent predator.
In Commonwealth v. Williams,557 Pa. 285 ,733 A.2d 593 ([Pa.] 1999) (Williams I), this Court struck down the sexually violent predator provisions of Megan’s Law I based upon the conclusion that a finding of sexually violent predator status under that enactment entailed a “separate factual determination, the end result of which is the imposition of criminal punishment,” i.e., increasing the offender’s maximum term of confinement above the statutory maximum for the underlying offense. See id. ... at 603.... Notably, in view of the punitive nature of the increased maximum prison sentence, the Williams I Court invalidated the challenged provisions without reaching the question of whether the enhanced registration and notification requirements constituted criminal punishment. See id. ... at 602 n.10.
After Williams I was decided, the General Assembly passed Megan’s Law II, which was signed into law on May 10, 2000. Although the stated legislative policy remained the same as in Megan’s Law I, the General Assembly altered the manner in which an individual convicted of a predicate offense was adjudicated a sexually violent predator. The critical distinction, for present purposes, is that, under Megan’s Law II an offender convicted of an enumerated predicate offense is no longer presumed to be a*1197 sexually violent predator. ... Additionally, persons adjudicated to be sexually violent predators are no longer subjected to an automatic increased maximum term of imprisonment for the predicate offense. Instead, they are required to undergo lifetime registration, notification, and counseling procedures; failure to comply with such procedures is penalized by a term of probation or imprisonment.
Under Megan’s Law II, any offender convicted of a predicate offense, whether or not he is deemed a sexually violent predator, must: (1) register his current residence or intended residence with the state'police upon release from incarceration, parole from a correctional institution, or commencement of an intermediate punishment or probation; (2) inform the state police within ten days of a change in residence; and (3) register within ten days with a new law enforcement agency after establishing residence in another state. State police officials then forward this data, together with fingerprint and photographic information obtained from the sentencing court to the chief of police of the locality where the offender will reside following his change of address or release from prison. For sexually violent predators, the police chief in turn notifies the individual’s neighbors, as well as day care operators and school officials within the municipality. The data sent to these recipients includes the offender’s name, address, offense, and photograph (if available), as well as the fact that he has been determined by a court to be a sexually violent predator, “which determination has or has not been terminated as of a date certain.” The sexually violent predator’s name and address, in-eluding any subsequent change of address, is also sent to the victim of the offense, until the victim requests • that such notification be terminated.
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In addition to registration upon release from prison and upon changes of address, sexually violent predators must periodically verify their address with the state police. To accomplish this, the state police send a verification form once every three months to the last residence reported. Upon receipt of this form, the sexually violent predator must appear within ten days at any state police station to submit the completed form and be photographed. The Act also requires a sexually violent predator to attend “at least monthly” counseling sessions in a program approved by the Board, and to pay all fees assessed from such sessions, unless he cannot afford them, in which case they are paid by the parole office. The Board monitors compliance with this requirement; the sexually violent predator must also verify such compliance with the state police as part of the quarterly verification process discussed above.
Williams II,
The General Assembly made further amendments to Megan’s Law II with the passage of Act 152 of 2004, commonly referred to as Megan’s Law III, which was signed into law on November 24, 2004. Commonwealth v. Neiman,
(1) established a two-year limitation for asbestos actions[8] ; (2) amended the*1198 Crimes Code to create various criminal offenses for individuals subject to sexual offender registration requirements who fail to comply; (3) amended the provisions of the Sentencing Code which govern “Registration of Sexual Offenders”; (4) added the offenses of luring and institutional sexual assault to the list of enumerated offenses which require a 10-year period of registration and established local police notification procedures for out-of state sexual offenders who move to Pennsylvania; (5) directed the creation of a searchable computerized database of all registered sexual offenders (“database”); (6) amended the duties of the Sexual Offenders Assessment Board (“SOAB”); (7) allowed a sentencing court to exempt a lifetime sex offender registrant, or a sexually violent predator registrant, from inclusion in the database after 20 years if certain conditions are met; (8) established mandatory registration and community notification procedures for sexually violent predators; (9) established community notification requirements for a “common interest community”—such as a condominium or cooperative—of the presence of a registered sexually violent predator; (10) conferred immunity, on unit owners’ associations of a common .interest community for good faith distribution of information obtained from the' database; (11) directed the Pennsylvania State Police to publish a list of approved registration sites to collect and transmit fingerprints and photographs of all sex offenders who register at those sites; and (12) mandated the Pennsylvania Attorney General to conduct annual performance audits of state or local, agencies who participate in the administration of Megan’s Law, and, also, required registered sex offenders to submit to fingerprinting and being photographed when registering at approved registration sites.
Id.,
B. Case Law Regarding the Constitutionality of Sex Offender Laws
Before reaching the specific provisions of SORNA at issue here, we summarize the reasoning in two pivotal cases, the analysis of which will frame our discussion below: the United States Supreme Court’s decision in Smith, and this Court’s decision in Williams II.
i. Smith v. Doe
In Smith, the United States Supreme Court determined the registration requirements of Alaska’s Sex Offender Registration Act (the Act), which applied to the sex-offender plaintiffs despite the fact they were convicted, sentenced, and released from prison before its passage, were not retroactive punishment prohibited by the federal ex post facto clause. Smith,
The Alaska law, which is our concern in this- case, contains two components: a registration requirement and a notification system. Both are retroactive. The Act requires any “sex offender or child kidnapper who is physically present in the state” to register, either with the Department of Corrections (if the individual is incarcerated) or with the local*1199 law enforcement authorities (if the individual is at liberty). Prompt registration is mandated. If still in prison, a covered sex offender must .register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and postconviction treatment history. He must permit the authorities to photograph and fingerprint him.
If the offender is convicted of a singlé, nonaggravated sex crime, he must provide annual verification of the submitted information for 15 years. If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender must notify his local police department if he moves. A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution.
The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards are kept confidential. The following information is made available to the public: “the sex offender’s or child kidnapper’s name, aliases, address, photograph, physical description, description];,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements ... or cannot be located.” The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the noneonfidential information available on the Internet.
Smith,
We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks,521 U.S. 346 , 361 [117 S.Ct. 2072 ,138 L.Ed.2d 501 ] ... (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Ibid., quoting United States v. Ward,448 U.S. 242 , 248-49 [100 S.Ct. 2636 ,65 L.Ed.2d 742 ] ... (1980). Because .we “ordinarily defer to the legislature’s stated intent,” Hendricks, supra, at 361 [117 S.Ct. 2072 ], “‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson v. United States,522 U.S. 93 , 100 [118 S.Ct. 488 ,139 L.Ed.2d 450 ] (1997), quoting Ward, supra, at 249 [100 S.Ct. 2636 ].
Smith,
In determining Alaska’s legislature intended to establish a civil, nonpunitive scheme, the Court looked to the text of the statute where the legislature found “‘sex offenders pose a high risk of re-offending,’ and identified ‘protecting the public from sex offenders’ as the ‘primary
The High Court then looked to the factors listed in Mendozctr-Martinez as a framework for determining whether the provisions of the Alaska statute were so punitive in effect as to negate the legislature’s intention to identify the scheme as civil. Id. at 97,
The High Court first determined the Alaska statute’s notification provisions did not resemble shaming punishments of the colonial era, which involved more than the dissemination of information, and included either face-to-face shaming in view of other citizens or expulsion from the community. Smith,
. The Court also determined the Act did not impose a- physical restraint. Id. at 100,
Although the State of Alaska conceded its registration statute might deter future crimes, the Smith Court held this was not enough to find the law punitive because holding a deterrent purpose automatically renders such sanctions criminal “would severely undermine the Government’s ability to engage in effective regulation.” Id. at 102,
The Court then held “[t]he Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” Id., quoting United States v. Ursery,
The Court further held the Act was not excessive in its application to all offenders regardless of their future dangerousness as the registration requirements were minor and allowed the public to assess risk based' on accurate, public information about offenders’ convictions. Id. at 104,
The Court also stated two factors— whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime—are of little weight as the Act applied only to past criminal conduct, which is a necessary starting point for targeting the statutory concern of recidivism. Id. at 105,
ii. Williams II
In Williams II, this Court considered whether the registration, notification, and counseling requirements of Megan’s Law II, applicable to sexually violent predators, constituted criminal punishment such that their imposition on the defendants violated their rights to due process under the United States and Pennsylvania Constitutions.
The Williams II Court then examined the Mendoza-Martinez factors to determine whether the sanctions are “so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id., quoting Ward,
The Court then found applicability of Megan’s Law II does not depend only upon a finding of scienter since some predicate offenses can be committed whether or not the defendant is aware his conduct is criminal, e.g., the statute applies to the crime of sexual abuse of children, where the defendant may be convicted despite the good faith belief the child was over eighteen years of age. Id. at 977-78. The Williams II Court further found since there was a substantial period of incarceration attached to the predicate offenses of rape and involuntary deviate sexual intercourse,
The Williams II Court found the erucial determination of sexually violent predator status under Megan’s Law II was not based upon the particular criminal conduct or crime at issue, but instead upon a separate finding of mental abnormality or personality disorder. Williams II,
Finally, the Court determined Megan’s Law II’s registration, verification, and counseling requirements were not sufficiently onerous to be considered-punishment based upon alleged excessiveness. Id. at 982. Although the Court conceded it was “troubling” that the requirements last for the entire lifetime of the sexually violent predator, and the legislature could avoid excessiveness claims by allowing a sexually violent predator to invoke judicial review to demonstrate he no longer poses a substantial risk, the Court recognized the record did not include any information concerning the successful treatment of sexually violent.predators. Id. at 982-83. Accordingly, the Williams II Court established the registration, notification, and counseling requirements imposed on sexually violent predators under Megan’s Law II were not punitive; thus their imposition did not violate the offenders’ due process rights. Id. at 984.
C. SORNA
The General Assembly enacted SORNA in response to the federal Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901-16991,
The purposes of SORNA, as stated by the General Assembly, are as follows:
(1) To bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006 ...
(2) To require individuals convicted or adjudicated delinquent of certain sexual offenses to register with the Pennsylvania State Police and to otherwise comply with this subchapter if those individuals reside within this Commonwealth, intend to reside within this Commonwealth, attend an educational institution inside this Commonwealth or are employed or conduct volunteer work within this Commonwealth.
(3) To require individuals convicted or adjudicated delinquent of certain sexual offenses who fail to maintain a residence and are therefore homeless but can still be found within the borders of this Commonwealth to register with the Pennsylvania State Police.
(4) To require individuals who are currently subject to the criminal justice system of this Commonwealth as inmates, supervised with respect to probation or parole or registrants under this subchapter to register with the Pennsylvania State Police and to otherwise comply with this subchap-ter. To the extent practicable and consistent with the requirements of the Adam Walsh Child Protection and
Safety Act of 2006, this subchapter shall be 'construed to maintain existing procedures regarding registration of sexual offenders who are subject to the criminal justice system of this Commonwealth.
(5) To provide a mechanism for members of the general public to obtain information about certain sexual offenders from a public Internet website and to include on that Internet website a feature which will allow a member of the public to enter a zip code or geographic radius and determine whether a sexual offender resides within that zip code or radius.
(6) To provide a mechanism for law enforcement entities within this Commonwealth to obtain information about certain sexual offenders and to allow law enforcement entities outside this Commonwealth, including those within the Federal Government, to obtain current information about certain sexual offenders.
42 Pa.C.S. § 9799.10. Furthermore, the General Assembly expressed the legislative findings and declaration of policy supporting SORNA as follows:
(a) Legislative findings.—The General Assembly finds as follows:
(1) In 1995 the General Assembly enacted the act of October 24, 1995 (1st Sp. Sess. P.L. 1079, No. 24), commonly referred to as Megan’s Law. Through this enactment, the General Assembly intended to comply with legislation enacted by Congress requiring that states provide for the registration of sexual offenders. The Federal statute, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act*1205 (Public Law 103-322, 42 U.S.C. 14071 et seq.), has been superseded by the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 190-248,120 Stat. 587).
(2) This Commonwealth’s laws regarding registration of sexual offenders need to be strengthened. The Adam Walsh Child Protection arid Safety Act of 2006 provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpuriitive but offers an increased measure of protection to the citizens of this Commonwealth.
(3) If the public is provided adequate notice and information about sexual offenders, the community can develop constructive plans to prepare for the presence of sexual offenders in the community. This allows communities to meet with law enforcement to prepare and obtain information about the rights and responsibilities of the community and to provide education and counseling to residents, particularly children. . .
(4) 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.
(5) Sexual offenders have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.
(6) Release of information about sexual offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
(7) Knowledge of whether a person is a sexual offender could be a significant factor in protecting oneself and one’s family members, or those in care of a group or community organization, from recidivist acts by such offenders.
(8) The technology afforded by the Internet and other modern electronic communication methods makes this information readily accessible to parents, minors, and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at' risk.
(b) Declaration of policy.— The General Assembly declares as follows:
'(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.
(3) It is the intention of the General Assembly to address the Pennsylvania Supreme Court’s decision in Commonwealth v. Neiman, [624 Pa. 53 ,84 A.3d 603 ] (Pa. 2013), by amending this subchapter in the act of March 14, 2014 (P.L. 41, No. 19).
42 Pa.C.S. § 9799.11(a)-(b).
SORNA’s registration provisions are applicable to, inter alia, the following individ
SORNA classifies offenders and their offenses into three tiers. 42 Pa.C.S. § 9799.14, Those convicted of Tier I offenses, are subject to registration for a period of fifteen years and. are required to verify their registration information and be photographed, in person at an approved registration site,.. annuaily. 42 Pa.C.S. § 9799.15(a)(1), (e)(1).
(1) 18 Pa.C.S. § 2901(a.l) (relating to kidnapping).
(2) 18 Pa.C.S. § 3121 (relating to rape).
(3) 18 Pa.C.S. § 3122.1(b) (relating to statutory sexual assault).
(4) 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(5) 18 Pa.C.S. § 3124.1 (relating to sexual assault),
(6) 18 Pa.C.S. § 3124.2(a.l) [relating to institutional sexual assault].
(7) 18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
(8) 18 Pa.C.S. § 3126(a)(7) (relating to indecent assault [of victim under 13 years of age]).
(9) 18 Pa.C.S. § 4302(b) (relating to incest).
(10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse).
(11) 18 U.S.C. § 2242 (relating to sexual abuse).
(12) 18 U.S.C. § 2244 [abusive sexual contact] where the victim is under 13 years of age.
(13) A comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth.
(14) An attempt, conspiracy or solicitation to commit an offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13).
(15) (Reserved).
(16) Two or more convictions of offenses listed as Tier I or Tier II sexual offenses.
42 Pa.C.S. § 9799.14(d).
SORNA also establishes a statewide registry of sexual offenders to be created and maintained by the state police. 42 Pa.C.S. § 9799.16(a). The registry contains information provided by the sexual offender, including: names and aliases, designations used by the offender for purposes of routing or self-identification in intérnet communications, telephone numbers, social security number, addresses, temporary habitat if á transient, temporary lodging information, passport and documents establishing immigration status, employment information, occupational and professional licensing information, student enrollment information, motor vehicle information, and date of birth. 42 Pa.C.S. § 9799.16(b). The registry also contains information from the state police, including the following: physical description of the offender, including a general physical description, tattoos, scars and other identifying marks, text of the statute defining the offense for which the offender is registered, criminal history information, current photograph, fingerprints, palm prints and a DNA sample from the offender, and a photocopy of
Not only does SORNA establish a registry of sexual offenders, but it also directs the state police to make information available to the public through the internet. 42 Pa.C.S. § 9799.28. The resulting website “[c]ontains a feature to permit a member of the public to obtain relevant information for an [offender] by a query of the internet website based on search criteria including searches for any given zip code or geographic radius set by the user.” 42 Pa.C.S. § 9799.28(a)(l)(i). The website also “[contains a feature to allow a member of the public to receive electronic notification when [an offender] provides [updated] information [and also allows] a member of the public to receive electronic notification when [an offender] moves into or out of a geographic area chosen by the user.” 42 Pa.C.S. § 9799.28(a)(1)(h). The Pennsylvania website must coordinate with the Dru Sjodin National Sex Offender Public Internet Website (https://www.nsopw.gov) and must be updated within three business days of receipt of required information. 42 Pa.C.S. § 9799.28(a)(l)(iii), (iv).
In addition to the offender’s duty to appear at an approved registration site annually, semi-annually, or quarterly, depending upon the tier of their offense, all offenders are also required to appear in person at an approved registration site within three business days of any changes to their registration information including a change of name, residence, employment, student status, telephone number, ownership of a motor vehicle, temporary lodging, e-mail address, and information related to professional licensing. 42 Pa.C.S. § 9799.15(g). Offenders must also appear in person at an approved registration site within twenty-one days in advance of traveling outside the United States and must provide dates of travel, destinations, and temporary lodging. 42 Pa.C.S. § 9799.15(i). Furthermore, transients, i.e. homeless individuals, must appear in person monthly until a residence is established. 42 Pa.C.S. § 9799.15(h)(1). Offenders who fail to register, verify their information at the appropriate time, or provide accurate information are subject to prosecution and incarceration under 18 Pa.C.S. § 4915.1 (failure to comply with registration requirements). 42 Pa.C.S. § 9799.21(a).
V. Federal Ex Post Facto Claim
We lead with appellant’s federal claim in part because we recognize the General Assembly enacted SORNA in response to federal legislation. We also recognize the United States Supreme Court’s decision in Smith—which arose out of a federal ex post facto challenge—guides our analysis. The United States Constitution provides: “No State shall ... pass any ... ex post facto Law. ...” U.S. Const, art I § 10. Our decision regarding violation of this clause depends on a determination of whether SORNA’s retroactive application to appellant constitutes punishment. Accordingly, we apply the two-part analysis employed in Smith and Williams II. 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.” Williams II,
Appellant contends although SORNA’s stated purpose is to protect the public, the real intent of the General Assembly is to punish offenders. Appellant’s Brief at 9. Appellant buttresses this argument by claiming SORNA’s statement of purpose implicates “sexual offenders” who are classified solely by their criminal record rather than the class of “sexually violent predators” to whom the former Megan’s Law statutes applied, and which required an individualized determination of SVP status. Id. at 11. Appellant also points out SOR-NA is entirely codified under the sentencing section of Pennsylvania’s Crimes Code. Id. at 12-13. Finally, appellant argues, SORNA vests administrative authority, not with a public safety department, but with the Pennsylvania State Police, a traditional enforcer of criminal laws, and failure to comply with SORNA results in arrest. Id. at 13-14.
The Commonwealth concedes SORNA is broader in application than previous Megan’s Law statutes, but nevertheless insists the statutes do not differ in purpose, as SORNA explicitly provides the registration requirements shall not be construed as punitive. Commonwealth’s Brief at 15-16, citing 42 Pa.C.S. § 9799.11(b)(2). The Commonwealth further contends since the statutory language regarding purpose is unambiguous further interpretation of legislative intent should be avoided. Id. at 16.
“In applying the first element of this test, the sole question is whether the General Assembly’s intent was to punish.” Williams II,
At the same time, we recognize the following aspects of SORNA are troubling and actually cast doubt on the stated legislative intent: the act encompasses a much broader class of offenders than Megan’s Law II, and includes relatively minor offenses within its net; the act is codified within the sentencing section of the Crimes Code; and the acts vests regulatory authority with the state police. However, we note the fact SORNA encompasses a broad class of offenders is a reflection of the legislature’s intent to comply with federal sex offender laws for funding purposes. Furthermore, Megan’s Law II was also codified completely within the Crimes Code and also vested regulatory authority in the state police. As such, we recognize the General Assembly’s intent in enacting SORNA apparently was twofold: to comply with federal law; and, as we stated in
B. Mendoza-Martinez Factors
As we have determined the intent of the General Assembly was to enact a civil scheme, we now conduct an analysis of the Mendozar-Martinez factors to determine whether SORNA is sufficiently punitive in effect to overcome the General Assembly’s stated nonpunitive purpose. Williams II,
i. Whether the Statute Involves an Affirmative Disability or Restraint
Appellant argues this factor weighs in favor-of finding SORNA punitive as SORNA differs from the Alaska statute upheld in Smith by requiring quarterly in-person appearances and in-person appearances for any updates to an offender’s information. Appellant contends even if he never changes his name, residence, employment, phone number, car, or e-mail address, or goes on vacation, he still must appear a minimum of 100 times over twenty-five years, and for the rest of his life. Appellant’s Brief at 18, citing 42 Pa.C.S. § 9799.15. PACDL contends not only does SORNA impose major, direct disabilities and restraints such as in-person reporting and updating requirements that were not present in the statutes analyzed in Smith or Williams II, but it also imposes extraordinary secondary disabilities in finding and keeping housing, employment, and schooling, traveling out of state, and increases the likelihood the offender may be subject to violence and adverse social and psychological impacts. PACDL’s Brief at 43-45.
The Commonwealth responds by arguing although it is true the Alaska statute did not contain in-person reporting requirements, the Smith Court gave great weight to the fact-Alaska’s statute did “not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Commonwealth’s Brief at 19, quoting Smith,
We are substantially aligned with appellant as to this factor. The Smith Court found the Alaska statute did not involve an affirmative disability or restraint partly due to the fact it does not require in-person updates. Smith,
ii. Whether the Sanction Has Been . Historically Regarded as Punishment
Appellant also contends the requirements of SORNA closely parallel historical forms of punishment such as probation and parole since the in-person reporting requirements are similar to meeting with a probation officer, and sex offenders also have a reduced expectation of privacy under the statute. Appellant’s Brief at 19-20, citing 42 Pa.C.S. § 9799.11(a)(5). Appellant notes this is a distinct difference from the. Alaska statute at issue in Smith where the High Court rejected such an argument on the basis the Alaska statute contained no mandatory conditions comparable to probation. Appellant’s Brief at 19, citing Smith,
The Commonwealth contends although SORNA registration' may be like some probationary terms, probation, takes many forms and can be much more burdensome than SORNA’s requirements. Commonwealth’s' Brief at 24. The Commonwealth
The United States Supreme Court has distinguished colonial-era public shaming punishments from sex offender registration laws by noting public shaming “involved more than the dissemination of information” but also “held the person up before his fellow citizens for face-to-face shaming or expelled him from the community.” Smith,
As stated' above, we recognize the significance of the Smith Court’s decision with regard to its analysis of the Alaska statute. However, Smith was decided in an earlier technological environment. The concurring expression by now-Justice Donohue in Perez has particular force on this point:
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 access. Yesterday’s face-to-face shaming punishment can now be accomplished online, and an individual’s presence in cyberspace is omnipresent. The public internet website utilized by the Pennsylvania State Police broadcasts worldwide, for an extended period of time, the personal identification information of individuals who have served their “sentences.” This exposes registrants to ostracism and harassment without any mechanism to prove rehabilitation—even through the clearest proof. In my opinion, the extended registration period and the worldwide dissemination of registrants’ information authorized by SORNA now outweighs the public safety interest of the government so as to disallow a finding that it is merely regulatory.
Perez,
Furthermore, although the Smith Court ultimately rejected the argument Alaska’s registration system was like probation because it did not impose mandatory conditions, the High Court nevertheless recognized the argument has “some force” and the argument is therefore even more compelling where SORNA does impose such conditions. See Id. at 763 (Donohue, J. concurring), citing Smith,
In contrast, the mandatory in-person verification requirement in Section 9799.15(e) not only creates an affirmative restraint upon [appellant], requiring him to appear at a designated facility a minimum of [100] times over the next 25 years[, extending for the remainder of his life,] as a Tier [III] offender, but also greatly resembles the periodic meetings with probation officers imposed on probationers. ... [B]ecause SORNA differs significantly from the statute at issue in Smith, these disparities must be considered.
In [Williams II,] the Pennsylvania Supreme Court found that probation has historically been considered a traditional form of punishment. Williams [II],
Like the conditions imposed on probationers, registrants under SORNA must notify the state police of a change in residence or employment. 42 Pa.C.S. § 9799.15(g). Offenders also face incarceration for any noncompliance with the registration requirements. 42 Pa.C.S. § 9799.22(a). Furthermore, SORNA requires registrants who do not have a fixed place of work to provide “general travel routes and general areas where the individual works” in order to be in compliance. 42 Pa.C.S. § 9799.16. The Supreme Court in Smith stated that “[a]
sex offender who fails to comply with the reporting requirement may be subjected to criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.” Smith,538 U.S. at 101-02 ,123 S.Ct. 1140 . However, violations for noncompliance with both probation and SORNA registration requirements are procedurally parallel. Both require further factual findings to determine whether a violation has actually occurred. 42 Pa.C.S. §§ 9771(d), 9799.21. Similarly, but for the original underlying offense, neither would, be subject to the mandatory conditions from which the potential violation stems. The parallels between the SORNA registration requirements and probation lead me to conclude that factor two of the [Mendoza-Martine^ ] test leans towards a finding that SORNA is punitive.
See Perez,
We conclude the weighing process with regard to this Mendoza-Martinez factor presents a much closer case than the Smith Court’s analysis of Alaska’s registration statute in 2003. We consider SOR-NA’s publication provisions—when viewed in the context of our current internet-based world—to be comparable to shaming punishments. We also find SORNA and the Alaska statute are materially different in their mandatory conditions such that SORNA is more akin to probation. We therefore hold this factor weighs in favor of finding SORNA’s effect to be punitive.
iii. Whether the Statute Comes into Play Only on a Finding of Scienter
Appellant presents no argument on this factor, noting the' Smith Court did not analyze it because it carried little weight in determining the punitive nature of the Alaska statute. Appellant’s Brief at 20, cit
iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment
Appellant next argues SORNA operates to promote the traditional aims of punishment—retribution and deterrence. Appellant’s Brief at 20, Appellant argues SORNA promotes deterrence much like incarceration and probation do; the prospect of being labeled a sex offender accompanied by registration requirements and the public dissemination of personal information on the internet will deter the commission of sex offenses. Id. Appellant further argues SORNA has retributive aspects since it applies only after an individual commits a crime, and the additional punishment for failure to register or provide accurate information, see 18 Pa.C.S. § 4915.1, is also related .to retribution. Appellant’s Brief at 21. Appellant contends distribution of private information online also exacts retribution. Id. at 21-23. To this point, appellant recognizes the Smith Court stated the dissemination of accurate information may properly flow from an offender’s conviction, which is a matter of public record. Id. at 22. However, appellant notes the information disseminated under SORNA goes beyond conviction data and includes sufficient information to allow members of the public to harass an offender, and thus endanger public safety. Id. at 22-23.
PACDL posits SORNA is designed to have deterrent and retributive effects. PACDL notes deterrence is an obvious goal of sex offender registration laws. PACDL’s Brief at 50, citing Commonwealth v. Gehris,
The Commonwealth acknowledges SOR-NA has a deterrent purpose and effect. Commonwealth’s Brief at 28-29. However, the Commonwealth argues finding SORNA punitive (and thus incapable of retroactive application), would undermine the state’s ability to regulate offenders and the risk of recidivism is too great a price to pay. Id. at 29, citing Smith,
We are substantially aligned with appellant as to this factor, especially in light of the Commonwealth’s concession that SORNA is meant to have a deterrent effect. We agree that the prospect of being labeled a sex offender accompanied by registration requirements and the public dissemination of an offender’s personal information over the internet has a deterrent effect. We are also cognizant that “the mere presence of a deterrent purpose” does not “render such sanctions ‘criminal’.” Smith,
Although we recognize both the High Court in Smith and this Court in Williams II found sex offender laws generally do not have a retributive purpose, we note there was minimal analysis on this point in either decision. Retribution, in its simplest terms, “affix[es] culpability for prior criminal conduct,” Hendricks,
v. Whether the Behavior to which the Statute applies is Already a Crime
Appellant concedes this factor does not carry much weight, but suggests it does weigh in favor of finding the statute punitive. Appellant’s Brief at 23, citing Smith,
vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected
Appellant concedes this factor weighs in favor of finding SORNA to be nonpunitive as there is a rational connection to public safety and health. Appellant’s Brief at 24. PACDL, however, submits SORNA is not rationally related to a nonpunitive purpose. PACDL contends most offenders will not commit another sexual offense, and SORNA therefore produces an illusion of security from stranger perpetrators when the majority of sexual crimes are committed by someone known to the victim. PACDL further argues SORNA diverts law enforcement efforts away from the most serious offenders and from effective methods of crime control and treatment. PACDL’s Brief at 51-53.
The Commonwealth reiterates its recidivism-based arguments to conclude SORNA is rationally connected to the goals of public safety and health. Commonwealth’s Brief at 35-37. Amicus PDAA posits appellant is misguided in asking this Court to second-guess legislative judgment since there is no absolute truth when it comes to the risk posed by sexual offenders. PDAA’s Brief at 11-12. PDAA cites studies that have found nearly forty percent of sexual offenders released from prison return to prison within three years for sexual offenses. Id. at 12. PDAA also contends any attempt to measure recidivism greatly understates the problem as the wide majority of sexual offenses are never reported. Id. at 13-15. PDAA concludes although there is no perfect solution to this problem, as with most policy problems, the
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 PDAA’s 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,
vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned
Appellant notes the Williams II Court considered the fact there was no means under Megan’s Law II for a judicially-determined sexually violent predator to demonstrate he no longer posed a substantial risk to the community—and thus escape lifetime registration—to be “troubling.” Appellant’s Brief at 25, quoting Williams II,
PACDL also contends SORNA is excessive and significantly over-inclusive as it casts a global net which sweeps into the sex offender registry many minor and nonsexual offenses. PACDL’s Brief at 53. PACDL asserts SORNA is ineffective in determining risk as it does not even require a risk assessment; PACDL notes this Court, has found imprecision even in risk assessments. Id.- at 54, citing Lee,
The Commonwealth "responds by contending appellant’s excessiveness árgu
Once again, we are aligned with the arguments of appellant and PACDL. The Williams II Court observed with regard to Megan’s Law II, “if the Act’s imprecision is likely to result in individuals being deemed sexually violent predators who in fact do not pose the type of risk to the community that the General Assembly sought to guard against, then the Act’s provisions could be demonstrated to be excessive....” Williams II,
viii. Balancing of Factors
Our review of SORNA under the Mendozar-Martinez factors reveals significant différences' between Pennsylvania’s most recent attempt at a sex offender registration statute and the statutes upheld in Williams II and Smith. As stated, we have determined four of the' five factors to which we have‘giveh weight—all except for whether there is an alternative purpose to which the statute may be rationally connected—weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated non-punitive purpose. Accordingly, we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution.
VI, State Ex Post Facto Claim
Having found retroactive application of SORNA violates the federal ex post facto clause, we might end our analysis here. See, e.g., Rose,
. We are also aware our decision that SORNA violates the federal ex post facto clause is a departure from federal case law which has upheld the Adam Walsh Act against federal ex post facto challenges. See, e.g., United States v. Young,
A. Text
The Pennsylvania Constitution provides, in pertinent part: “No ex post facto law ... shall be passed.” Pa. Const. art. I § 17. It is clear, as the Commonwealth argues, the text of the federal and state constitutions are nearly identical and we have recognized “the same pre-revolu-tionary-war concerns shaped the ex post facto provisions of the constitutions of Pennsylvania and the United States.” See Young,
B. History
Appellant next argues the history of Pennsylvania’s ex post facto clause, includ-
Moreover, PACDL notes, the Pennsylvania ex post facto clause was adopted ten years prior to its federal counterpart, and Pennsylvania historically took a different approach towards punishment, diverting away from the nationally accepted view of corporal punishment as the norm much earlier than other jurisdictions. PACDL’s Brief at 38-39, citing Robert R. Tyson, Essay on the Penal Law of Pennsylvania, Law Academy of Philadelphia 9-13 (1827). PACDL further argues the most significant difference between federal and state ex post facto case law is this Court has stated the two constitutions “afford separate bases for proscribing ex post facto laws.” Id. at 39, citing Lehman v. Pa. State Police,
The Commonwealth responds by arguing historical considerations do not distinguish the state clause from its federal counterpart, and that this Court’s statements regarding excessiveness standing alone to support a finding a statute has punitive effect do not undermine the United States Supreme Court’s expression that no single Mendozar-Martinez factor is exhaustive or dispositive. See Hudson,
Although we acknowledge both the state and federal ex post facto clauses were shaped from the same pre-revolutionary war concerns, this Court has nevertheless noted divergence between the clauses in the past, particularly with regard to defining punishment on the basis of excessiveness. See, e.g., Lee,
C. Case Law from Other States
Appellant argues courts in Maryland, Indiana, and Alaska have considered the public’s perception and treatment of sex offenders when holding such statutes are unconstitutional under their respective state constitutions, even in the absence of a reputation clause like Pennsylvania’s which categorizes reputation as an inherent right. Appellant’s Brief at 30-31, citing Doe v. Dept. of Public Safety & Correctional Services,
Although many states have adopted the reasoning of the Smith Court in upholding their sex offender registration statutes under both state and federal ex post facto clauses, we do not find this controlling. The Pennsylvania Constitution differs from the constitutions in those states—as well as the United States Constitution—in its treatment of, inter alia, the right to reputation. See J.B.,
D. Policy Considerations
Appellant argues policy considerations weigh in favor of finding greater protections in the Pennsylvania Constitution as the state has an interest in the finality of sentencing and individuals have an interest in understanding the regulatory outcome of guilty pleas and criminal convictions.
As previously stated, we recognize there is conflicting evidence regarding recidivism rates of adult sex offenders, and therefore we do not base our determination regarding this prong of the Edmunds analysis on this aspect of the relevant policy considerations. See e.g., Hale,
E. Summary of Edmunds Analysis
To summarize, we find the following to be consequential to our analysis of the relative protections afforded by the state and federal ex post facto clauses:, the right tp be free from ex post facto laws is an “inherent” and fundamental Article I right under the Pennsylvania Constitution; this Court has previously recognized, in Lee, Lehman, and Williams II, there is some divergence between the state and federal ex post facto clauses; SORNA’s registration and online publication provisions place a unique burden on the right to reputation, which is particularly protected in Pennsylvania; other states have also found the retroactivity of registration laws unconstitutional under their state constitutions, partly due to reputation concerns; and both the state and offender have an interest in the finality of sentencing that is undermined by the enactment of evermore severe registration laws. For those reasons, we find Pennsylvania’s ex post facto clause provides even greater protections than its federal counterpart, and as we have concluded SORNA’s registration provisions violate the federal clause, we hold they are also unconstitutional under the state clause.
VII. Conclusion
We reverse the Superior Court’s decision affirming appellant’s judgment of sentence, and vacate that, portion of the sentence requiring appellant to comply with SORNA.
Jurisdiction relinquished.
Justices Baer and Donohue join the opinion and Justices Todd and Wecht join Parts I through IV.and VII of the opinion.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Justice Mundy did not participate in the consideration or decision of this case.
Notes
. Article I, Section 10 of the United States Constitution provides, in pertinent part; "No
. See 18 Pa.C.S. §§ 3126(a)(1) (person is guilty of indecent assault if he has indecent contact with the complainant for purpose of arousing sexual desire in himself or complainant, without complainant’s consent), 3126(a)(7) (complainant less than 13 years of age).
. Appellant’s seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. § 9799.13. Had appellant been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration.
.Pa. Const, art. I § 1 (“All men ... have certain inherent and indefeasible rights, among which are those of ... protecting properly and reputation. ... ”).
. The panel did not explain that, in Perez, the Superior Court did not actually reach the merits of the state constitutional claim, holding instead it was waived for failure to present an analysis under Commonwealth v. Edmunds,
. 'The. Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (hereinafter referred to jointly as PACDL) filed an amicus curiae brief supporting appellant. Amicus briefs in support of appellant were also filed by The Association for the Treatment of Sexual Abusers, Assessment and Treatment Alternatives and the Joseph J. Peters Institute, The Collateral Consequences Resource Center, and The Social Science Scholars; these policy based briefs focused on studies which opined recidivism by sex offenders is overstated and sex offender registration is ineffective and may also be counterproductive. The Pennsylvania District Attorneys Association (PDAA) filed an amicus brief in support of the Commonwealth.
. The Commonwealth also claims appellant waived his argument that SORNA violates the reputation clause of the Pennsylvania Constitution, We note the Superior Court correctly concluded the issue was waived because it was not raised in appellant’s post-sentence motion, and appellant has not raised an independent reputation clause claim before this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). However, appellant does include reputation-based concerns in his analysis of Pennsylvania’s ex post facto clause, and whether it provides greater protection than its federal counterpart; - appellant presented almost identical reputation-based arguments in his Edmunds analysis before the Superior Court as well. To the extent reputation-based concerns support appellant’s claim that SOR-NA’s provisions are punishment and retroactive application is a violation of Pennsylvania’s ex post facto clause, we consider, them only in that limited context.
8. The inclusion of this subsection provided the basis for the Neiman Court's decision to strike down the statute as being in violation of the single subject rule. Neiman,
. The Supreme Court of Alaska later found the retroactive application of the Act unconstitutional under the ex post facto clause of the Alaska state constitution. See Doe v. State,
. Williams II arose out of the Commonwealth’s appeal from two orders of the Court of Common Pleas of Erie County, which struck down certain portions of Megan's Law II as violative of the due process clauses of the United States and Pennsylvania Constitu
. 18Pa.C,S.§§ 3121, 3123.
. The Williams II Court also weighed whether Megan's Law II’s penalties for noncompliance, which subjected sexually violent predators to a possible term of life imprisonment, constituted punishment. Williams II,
. The federal regime is also referred to as the "Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Program,” 42 U.S.C. § 16902, or more simply as "federal SOR-NA.” See, e.g., United States v. Roberson,
.The federal statute provides: "For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal
. A sexually violent offense is defined as "[a]n offense specified in section' 9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II or Tier III sexual offense.” 42 Pa.C.S. § 9799.12,
. The Tier I offenses enumerated in SORNA are as follows: 18 Pa.C.S. § 2902(b) (relating to unlawful restraint); 18 Pa.C.S. § 2903(b) (relating to false imprisonment); 18 Pa.C.S. § 2904 (relating to interference with custody of children); 18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure); 18 Pa.C.S. § 3124.2(a) (relating to institutional sexual assault); 18 Pa.C.S. § 3126(a)(1) (relating to indecent assault); 18 Pa.C.S. § 6301(a)(1)(h) (relating to corruption of minors); 18 Pa.C.S. § 6312(d) (relating to sexual abuse of children); 18 Pa.C.S. § 7507.1 (relating to invasion of privacy); 18 U.S.C. § 1801 (relating to video voyeurism); 18 U.S.C. § 2252(a)(4) (relating to certain activities relating to material involving the sexual exploitation of minors); 18 U.S.C. § 2252A (relating to certain activities relating to material constituting or containing child pornography); 18 U.S.C. § 2252B (relating to mislead- , ing domain names on the internet); 18 U.S.C. § 2252C (relating to misleading words or digital images on the internet); 18 U.S.C. § 2422(a) (relating - to coercion and enticement); 18 U.S.C. § 2423(b) (relating to transportation of minors); 18 U.S.C. § 2423(c) (relating to engaging in illicit sexual conduct in foreign places); 18 U.S.C. § 2424 (relating to filing factual statement about alien individual); 18 U.S.C. § 2425 (relating to use of interstate facilities to transmit information about a minor); a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under- a former law of this Commonwealth; an attempt, conspiracy or solicitation to commit any of the above offenses; and a conviction for a sexual offense in another jurisdiction or foreign country that is not set forth in this section, but nevertheless requires registration under a sexual offender statute in the jurisdiction or foreign country. 42 Pa.C.S. § 9799.14(b).
.The Tier II offenses enumerated in SORNA are as follows: 18 Pa.C.S. § 3011(b) (relating to trafficking in individuals); 18 Pa.C.S. § 3122.1(a)(2) (relating to statutory sexual assault); 18 Pa.C.S. § 3124.2(a.2) and (a.3) (re- ' lating to institutional sexual assault in schools or child care centers); 18 Pa.C.S. § 3126(a)(2), (3), (4), (5), (6) or (8) (relating to indecent assault when victim is over 13 years of age); 18 Pa.C.S. § 5902(b.l) (relating to prostitution and related offenses); 18 Pa.C.S. § 5903(a)(3)(h), (4)(ii), (5)(ii) or (6) (relating to obscene and other sexual materials and performances); 18 Pa.C.S. § 6312(b) and (c); 18 Pa.C.S. § 6318 (relating to unlawful contact with minor); 18 Pa.C.S. § 6320 (relating to sexual exploitation of children); 18 U.S.C. § 1591 (relating to sex trafficking of children by force, fraud or coercion); 18 U.S.C. § 2243 (relating to sexual abuse of a minor or
. We are cognizant that restrictions on housing also arise from different statutes, such as 42 U.S.C. § 13663(a), which prohibits Tier III offenders, like appellant, from residing in federally subsidized housing.
. PACDL also notes other jurisdictions have held sex offender registration laws are similar to probation. PACDL's Brief at 46, citing Doe v. Dep’t of Pub. Safety & Corr. Serv.,
. SORNA predicate offenses that may be graded as misdemeanors under Pennsylvania law are as follows: 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). SOR-NA 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,
. We recognize interference with custody of children is not an example on all fours with the present situation, as appellant is a Tier III offender and, in any event, many of the other minor offenses listed in the tier system do include sexual components. However, the Smith Court made clear we must examine the law's entire statutory scheme when determining whether a statute is truly civil or creates instead a punitive effect. Smith,
. We note the Adam Walsh Act—pursuant to which SORNA was enacted—anticipates the possibility that state compliance with the federal mandate might violate a state's constitution, and provides for the possibility that a penalty for noncompliance might not apply in such situations. See 42 U.S.C. § 16925(b)(1) ("When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction's highest court.”). Our analysis on state grounds averts the "consultation” procedure intended to determine whether compliance with the federal legislation might violate a state's own constitution: “In considering whether compliance with the requirements of this subchapter would likely violate the jurisdiction’s constitution or an interpretation thereof by the jurisdiction's highest court, the Attorney General shall consult with the chief executive and chief legal officer of the jurisdiction concerning the jurisdiction’s interpretation of the jurisdiction’s constitution and rulings thereon by the jurisdiction’s highest court.” See 42 U.S.C. § 16925(b)(2). In the event the state’s constitution is violated by compliance, the federal statute allows for "reasonable alternative procedures or accommodations” such that the state might avoid reduced federal funding. 42 U.S.C. at § 16925(b)(3). Parenthetically, we recognize the federal statute does not expressly require retroactivity but instead authorizes the Attorney General to specify such applicability. See 42 U.S.C. § 16913(d) (“The Attorney General shall have the authority to specify the applicability of the requirements of this subchap-ter to sex offenders convicted before the enactment of this chapter[.]”). We further note the Attorney General has promulgated national guidelines which require states to include retroactive application as part of the federal SORNA requirements; thus the noncompliance provisions are implicated here. See 73 FR 38030-01 at 38046-47 (July 2, 2008) ("Accordingly, a jurisdiction will be deemed to have substantially implemented the SORNA standards with respect to sex offenders whose predicate convictions predate the enactment of SORNA or the implementation of SORNA in the jurisdiction’s program if it registers these sex offenders, when they fall within any of the three classes described above, in conformity with the SORNA standards”.)
Concurrence Opinion
concurring
I agree that the retroactive application of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) violates Article I, Section 17 of the Pennsylvania Constitution. I do not agree that “Pennsylvania’s ex post facto clause provides even greater protections than its federal counterpart.” See Opinion Announcing the Judgment of the Court (“OAJC”) at 1223.
The Pennsylvania Constitution prohibits the General Assembly from enacting ex post facto laws, one type of which are laws that retroactively increase the punishment for a particular crime. See Calder v. Bull,
The lead opinion begins its analysis of SORNA using the intent-effects framework and concludes that the General Assembly intended to create a non-punitive statutory scheme. See OAJC at 1208-10. The lead opinion then goes on to find that SORNA’s punitive effect is so overwhelming that it negates the General Assembly’s intent. See OAJC at 1209-18. Because I agree with both of these conclusions, I also agree that SORNA (as applied to Muniz) violates Article I, Section 17 of the Pennsylvania Constitution.
To determine whether a particular provision of the Pennsylvania Constitution protects individual liberty to a greater extent than an analogous clause in the United States Constitution, we must evaluate: (1) the text of the Pennsylvania constitutional provision; (2) the history of the provision, including Pennsylvania case law; (3) related case law from other states; and (4) policy considerations, including unique issues of state and local concern. Commonwealth v. Edmunds,
I. Text
In addressing the first Edmunds factor, we must compare the text of Article I, Section 17 of the Pennsylvania Constitution with that of Article I, Section 10 of the United States Constitution.
Of course, identical language alone does not necessarily indicate identical meaning. Edmunds,
II. History
To say that the rejection of ex post facto laws is of early lineage would be an understatement. A presumption against such legislation was recognized in both the Napoleonic Code and the Roman law codification of the Emperor Justinian. Kaiser Aluminum & Chem. Corp. v. Bonjorno,
Both the historical record and the Constitution’s text show that the other delegates to the Constitutional Convention shared Madison and Hamilton’s hostility to ex post facto laws. Sure, some of the delegates opposed Sections '9 and 10 of Article I. But they did so on the belief that ex post facto laws were so unmistakably void that explicitly prohibiting them would “implfyj an improper suspicion” of the. legislature. See Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev, 1127, 1157-58 (1987) (quoting James Madison’s notes from the Federal Convention of 1787). In the end, those views did not prevail. The convention’s final draft included two ex post facto clauses—a testament to the fact that the Framers “viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment.” Fletcher v. Peck,
After the ratification of the United States Constitution, the citizens of this Commonwealth adopted the Pennsylvania Constitution of 1790. That charter, much like the United States Constitution, included a clause forbidding the enactment of ex post facto laws. As this Court has said in the. past, the “same pre-revolutionary-war concerns” that influenced the. Framers'of the United States Constitution also shaped Pennsylvania’s ex post facto clause. See Commonwealth v. Gaffney,
The 1790 ex post facto clause was a bit more concise than the present-day version. It provided simply that “[n]o ex post facto law, nor any law impairing contracts, shall be made.” Pa, Const, of 1790, art. IX, § 17. Later, the delegates to the Constitutional Convention of 1873. proposed (and the electorate approved) minor revisions to that language—substituting the verb “passed” in the place of the word “made” and adding the phrase “the obligation of’ before the word “contracts.” These changes are modest, and they seem to reflect little more than a desire to mirror language used in the United States Constitution.
Indeed, records from the 1873 Convention reveal that the amended clause’s resemblance to the federal ex post facto clause was no coincidence. See 5 Debates of the Convention To Amend the Constitution of Pennsylvania 631 (1873)' (remarks of Charles R. Buckalew, suggesting that the clause “was intended to follow the language of the Constitution of the United States,” and questioning whether some words “were dropped out by accident”); id. (remarks of Thomas MacConnell, chairman of the Committee on the Bill of Rights, agreeing that 'the clause should “conform[] to the national Constitution”); id. (another delegate,' Wayne MacVeagh,
Despite this compelling evidence that Pennsylvania’s ex post facto clause means the same thing that the federal clause does, the lead opinion concludes that this Edmunds factor “militates in favor of holding the" Pennsylvania clause is even more protective than its federal- counterpart.” OAJC at 1222. Citing an amicus brief authored by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers, the lead opinion finds that the “location of Pennsylvania’s clause within the Declaration of Rights lends considerable force to the argument it provides even more protection than its federal counterpart.” Id. at 1220. As I understand it, the gist of ami-ci’s argument on this point is that Pennsylvania’s ex post■ facto clause must reach further than the federal cause because it falls within our charter’s enumerated “rights reserved and retained by the people,” whereas “[t]he federal clause is not contained within the Bill of Rights.” Brief for Defender Association & PACDL at 37.
Amici’s theory bases too much upon too little. The reason that the federal .clause does not appear in the Bill of Rights is that the clause predates the Bill of .Rights.
The lead opinion also asserts that this Court has “noted divergence between” the state and federal ex post facto clauses in the past. OAJC at 1221-22. Specifically, the lead opinion highlights language from Commonwealth v. Lee,
As an initial matter, I fail to see how a court could ever conclude that a particular sanction is “excessive in relation to the alternative purpose assigned” (the seventh factor) without first identifying some “alternative purpose to which [the sanction] may rationally be connected” (the sixth factor). Mendoza-Martinez,
More importantly, the United States Supreme Court’s ex post facto jurisprudence does not foreclose the possibility that a facially non-punitive law might constitute punishment solely because it is excessive relative to its regulatory aim. The principle that “no one [Mendoza-Martinez] factor should be considered controlling,” Hudson,
Contrary to the lead opinion’s suggestion that our decisions indicate “divergence between the clauses,” OAJC at 1221, I believe that this Court has gone to great lengths to align our own ex post facto jurisprudence with decisions from the United States Supreme Court. For example, prior to Smith, we analyzed ex post facto challenges using the Third Circuit Court of Appeals’ three-prong Artway/Ver-niero
Nor should we ignore that this Court consistently has relied upon federal precedent when resolving state ex post facto claims, see e.g., Young,
III. Related Case Law from Other States
The next Edmunds factor involves consideration of related case law from other jurisdictions. Ordinarily, this includes a survey of states that have adopted federal constitutional standards, states that have departed from federal constitutional standards, and the reasons given for each adoption or departure. Yet, Muniz’s entire argument on this Edmunds factor consists of quotations from three state courts that have “expressed concern regarding the public’s perception and treatment of offenders.” Brief for Muniz at 30 (quoting the Maryland, Alaska, and Indiana high courts). The lead opinion finds these expressions persuasive, and. concludes that this Edmunds factor suggests Pennsylvania’s ex post facto clause provides more protection than its federal analogue. Respectfully, I disagree.
When a statute is challenged on state constitutional grounds, most state high courts apply federal ex post facto doctrine (including the four categories from Cald'er, thé intent-effects test from Smith, and the seven useful guideposts from Mendoza-Martinez).
As always, there are a few exceptions. In 2013, a plurality of the Court of Appeals of Maryland held that the ex post facto clause of that state’s constitution affords Marylanders more protection than Article I, Section 10 of the United States Constitution does. Doe v. Dept. of Pub. Safety & Corr. Servs.,
. The language used in Kring and Thompson caused considerable confusion. Some state courts, like the Court of Appeals of Maryland, for example, seemed to read Kring and Thompson as alternatives to Caldeas, four categories of ex post facto laws. See Anderson v. Dept. of Health & Mental Hygiene,
Eventually, the Supreme Court disavowed both Kring ⅛ “disadvantage” standard and Thompson’s focus on “substantial rights,” explaining that both approaches deviated from the original meaning of the term ex post facto. Collins,
Unlike the Maryland Court of Appeals, this Court has acknowledged that references in our prior decisions to laws that either implicate “substantial rights” or “disadvantage” a defendant “should not be read so as to enlarge the Calder categories beyond their meaning at the time of the adoption of the Constitution.” Young,
The Supreme Court of Indiana is another tribunal that has diverged from United States Supreme Court precedent. Although the Smith intent-effects test is the “appropriate analytical framework for analyzing ex post facto claims under the Indiana Constitution,” courts in that state do not subscribe to the view that only the clearest proof of a statutory scheme’s punitive effect can negate the legislature’s as-sertedly non-punitive intent. Compare Smith,
The' lead opinion is not swayed by the number of states that have adopted federal constitutional standards for purposes of their own ex post facto clauses. According to the lead opinion,' the Pennsylvania Constitution warrants unique treatment because, unlike some other state constitutions, ours protects the right to reputation. OAJC at 1222-23. Along these lines, the lead opinion finds persuasive the fact that a few state high courts—in holding that ■retroactive sex-offender registration laws violate ex post facto principles—have “found harm to the reputations of offenders to be a factor in their constitutional analysis.” Id. Those courts have done so, the lead opinion continues, “even in the absence of a constitutional provision like Pennsylvania’s to give special protection to [reputation] interest[s].” Id.
In my view, the fact that our state Constitution protects reputational rights (Pa. Const. Art. 1, § 1) has little bearing on the question before us.
Given these points, the case law from other jurisdictions does not convince me that the lead opinion’s interpretation of the Pennsylvania Constitution is warranted. To the contrary, the experiences of our sister courts persuade me that we should err on the side of restraint when considering a departure from federal constitutional standards. Compare Miller v. State,
IV. Policy Considerations
Muniz’s discussion of Edmunds’ policy prong is quite limited; he merely asserts that the Commonwealth “has an interest in the finality of sentencing.” Brief for Muniz at 31. Muniz does not explain why this alleged interest supports the view that Pennsylvania’s ex post facto clause prohibits laws other than those which constitute “punishment.” Nor does he clarify why sentencing finality is an interest unique to Pennsylvania. (Surely, every state would have a similar “interest” in the finality of criminal sentences.) And to make matters worse, Muniz has not even bothered to discuss the ex post facto clause’s “application within the modern scheme of Pennsylvania jurisprudence.” Edmunds,
In short, Muniz’s argument here “falls short of the kind of searching inquiry required” to justify a departure from federal ex post facto precedent, Commonwealth v. Russo,
Y. Conclusion
Neither Muniz nor the lead opinion offer much to undermine the perception that— as the text and history of our Constitution seem to require, as those who wrote it seemed to expect, and as our past cases have all suggested—the state and federal ex post facto clauses are coterminous. Nonetheless, as the lead opinion’s thorough analysis makes clear, OAJC at 1208-18, applying the federal ex post facto standards also leads to the conclusion that
Justice Todd joins this concurring opinion.
. See Kennedy v. Mendoza-Martinez,
. I would resolve this case on state constitutional grounds, and decline to address Mun-iz’s claim that SORNA also violates the ex post facto clause of the United States Constitution. The lower federal courts disagree as to whether sex-offender registration laws violate the federal ex post facto clause, and the United States Supreme Court may accept review of one such dispute in the coming months. Does #1-5 v. Snyder,
. The United States Constitution has two provisions that prohibit ex post facto laws: one that restricts Congress (Article I, Section 9) and one that applies to the several states (Article I, Section 10).
. The Framers' hostility toward ex post facto laws grew from the British Parliament’s practice of enacting “bills' of attainder” and “bills of pains and penalties,” some of which would retroactively declare innocent acts to be criminal, while others would simply increase'the punishment for past offenses. Calder,
. It is important to remember that the original Constitution purposely did not enumerate individual rights, since some delegates worried that such a list would be construed to deny the public any unexpressed rights. Richmond Newspapers, Inc. v. Virginia,
. See Artway v. Att’y Gen. of N.J.,
. In at least one later case, the Court did undertake an Edmunds analysis, and discerned no basis to conclude that the standards applicable to federal ex post facto challenges are inadequate to safeguard the Pennsylvania constitutional right. Gaffney,
. See e.g., Riley v. N.J. Parole Bd.,
. See also Murphy v. Kentucky,
. If anything, the very existence of a reputation clause suggests that the drafters of our constitution believed that the right was not protected sufficiently by other provisions of the Declaration of Rights.
Dissenting Opinion
Dissenting
I agree with the analysis pertaining to those factors taken from Kennedy v. Mendoza-Martinez,
Regarding the first Mendoza-Martinez factor, SORNA may be perceived as imposing some minimal restraint or disability insofar as it requires offenders to appear in person to satisfy the reporting provisions. However, this Court has distinguished such minor impositions from those that effectuate a direct restraint or deprivation on the activities of the individual in the nature of imprisonment. See Williams II, 574 Pa. at 507,
Further, the OAJC reasons that the finding by the Smith Court that the Alaska statute there did not require in-person updates constitutes an “important” distinction, which in turn led the Supreme Court to conclude, in part, that the statute was not punitive. OAJC, at 1210-11. Critically, the Supreme Court did not premise its analysis on this observation; rather, it merely corrected an error in the facts relied upon by the reviewing court. See Smith,
As to the second factor, assessing whether the sanction has been historically regarded as punishment, I am unpersuaded by the OAJC’s primary shaming rationale, i.e., that the “technological environment” has so changed that posting information on the internet results in a punishment. OAJC, at 1212. Undoubtedly, internet access in private homes has grown in the years since the Smith decision; however, focusing on that narrow metric diminishes the central reasoning
Regarding the comparison to probation conditions that ;the OAJC proffers, see OAJC, at 1212-14 (quoting Perea,
In terms of the scienter factor, I agree that past criminal conduct is “a necessary-beginning point,” OAJC, at 1214 (quoting Smith,
Pertaining to the traditional aims of punishment, I agree with the parties that SORNA operates in some respect as a deterrent. See, e.g., Brief for Commonwealth at 28-29. As the OAJC acknowledges, however, deterrence alone is an insufficient basis to find a sanction to be punishment. See OAJC, at 1215 (citing Smith,
As for the OAJC’s retribution analysis, its reliance on Kansas v. Kendricks,
Additionally, I do not regard registration imposed on predicate offenses lacking substantial terms of imprisonment as suggestive of punitiveness, since SORNA’s tiered categories reflect the Legislature’s judgment of the seriousness of the underlying conviction relative to future dangerousness. See Petersen-Beard,
Moreover, as the OAJC seemingly acknowledges, with one exception (ie., Appellant’s conviction for indecent assault without consent, see 18 Pa.C.S. § 3126(a)(1)), those predicate offenses that implicate only a short prison sentence, or
From my perspective, to the extent that the Supreme Court has directed that ex post facto challenges are to examine a statute “on its face,” see Mendoza-Martinez,
Accordingly, I do not read Mendoza-Martinez or its progeny as entirely eviscerating the long-standing preference for as-applied challenges, see Kreit, Making Sense of Facial and As-Applied Challenges, 18 WM. & Mary Bill Rts. J. at 658 (“[T]he law strongly favors as-applied
As a final observation relative to the “on its face” review, to the degree that the reporting requirements of SORNA could be found unconstitutional relative to certain predicate offenses, those provisions may be severed from the constitutional portions of the statute. See Williams II,
On the whole, in light of the tiered reporting scheme, the lack of retributive effect, and the disclosure of information in line with that addressed in Smith, I am of the view that SORNA’s application to Appellant’s conviction does not operate to promote the traditional aims of punishment.
Next, I agree with the OAJC that the already-a-crime factor is of little significance, since prior criminal conduct is a prerequisite to SORNA’s application. See Smith,
In assessing whether there is an alternative purpose to which the statute may be rationally connected, my view largely comports with that of the OAJC, i.e., that there is plainly a rational connection between SORNA and public safety and health. Further, I similarly acknowledge that there is a growing body of evidence suggesting that the recidivist premise for sex offender registration laws may not be as settled as once believed. Nonetheless, it seems evident that these types of policy judgments are best directed to the legislative branch. See Seebold v. Prison Health Servs., Inc.,
Relative to the final factor—whether the statute is excessive in relation to the alternative purpose assigned—I agree in part with the OAJC that, as applied to a few of the offenses, there is a significant concern of over-inclusiveness, given that the crimes do not relate to any particular sexual act by their terms. See OAJC, at 1218 (citing
Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause.
. Employing the OAJC's source (via now-Justice Donohue’s concurring opinion in Commonwealth v. Perez,
. In accord with my understanding of the proper approach to ex post facto reviews, as discussed further herein, the obligations imposed pursuant to Appellant’s tier I designation are properly subject to examination, but only as compared to the actual predicate offense that triggered those requirements.
. Nonetheless, I agree that there appears to be some disconnect between those offenses that do not have a direct sexual element and requiring registration as a sex offender. See OAJC, at 1215. However, as discussed hereinafter, resolution of such a claim must be addressed within the confines of a case implicating those crimes.
.Generally, a facial challenge asserts that the statute cannot be applied to any set of facts in a constitutional manner. See Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 WM. & Mary Bill Rts. J. 657, 657 (2010).
. The OAJC includes within its non-sexual offenses' designation 18 U.S.C. § 2424, pertaining to the filing of a factual statement about an alien individual. However, a review of that federal statute reveals that it relates to housing 'a person "for the purpose of prostitution, or for any other immoral purpose Id. Thus, I disagree that there is no sexual component.
. Although the Mendoza-Martinez factors are the prevailing framework for determining the punitive effect of a statutory enactment, a number of scholars and jurists have expressed significant reservations with their use relative to assessing collateral consequence laws, such as SORNA. See David A. Singleton, What Is Punishment?: The Case for Considering Public Opinion Under Mendoza-Martinez, 45 Seton Hall L. Rev. 435, 442 (2015); Mayson, Collateral Consequences and the Preventative State,
Nonetheless, I emphasize that, although collateral consequences, of whatever form, may not be deemed punishment for constitutional or other purposes, such a determination is made despite the seemingly widespread recognition that they are not simply benign to those who are subject to them. See Sandra G. Mayson, Collateral Consequences and' the Preventive State,