Pa. courts put Megan’s Law in limbo

Law requires sexual offenders to register with state police, update registration

HOLLIDAYSBURG — Following the sentencing of an area man last month for indecent assault, Blair County District Attorney Richard A. Consiglio informed the judge that the next step in the process — a hearing to determine if the defendant was required to register as a sex offender — had to be delayed because of recent opinions by the Pennsylvania Supreme and Superior courts.

Under those opinions, questions arose as to the constitutionality of the state law requiring sexual offenders to register with state police and to periodically update their registration.

The constitutional challenges focused on individuals convicted of sexual offenses before Dec. 20, 2012, when the most recent Sexual Offender Registration and Notification Act, known as SORNA, took effect.

Also challenged was the information made available to the public about defendants that included private facts beyond the charges for which they were convicted and their addresses.

Consiglio and Assistant District Attorney Derek Elensky, who prosecutes child abuse cases for Blair County, released a statement addressing the issue.

“The recent decisions by the courts have taken away our ability to file charges against a significant number of convicted sexual offenders who are no longer complying with their registration requirements. This in turn has limited our ability to protect the community at large, and victims of sexual crimes in particular, from these individuals,” the prosecutors stated.

DA: Victims ignored

In a recent interview, Consiglio was outspoken about repeated decisions by appeals court judges that he thinks ignore the effects of sexually related crimes on victims.

“They don’t give the victims a thought. … Everything seems to favor the defendants,” the Blair DA stated.

Elensky said he is concerned, pointing out that the victims in these cases include children, many who have been brutalized and remain fearful of their assailants.

The registration requirements, he said, provide for public safety by providing “notice and information” about sexual offenders.

He believes the requirements under the sexual registration laws “provide readily accessible information to the victims and their families to avoid placing the victims at further risk.”

But the confusion concerning the sexual offender laws is not limited to Blair County.

It is a problem for prosecutors across the state, according to attorney Richard W. Long, executive director of the Pennsylvania District Attorneys’ Association in Harrisburg.

The key ruling, Long explained, that has caused the problem for the state’s prosecutors came July 19, when the Pennsylvania Supreme Court found that requirements such as registration, public notification and other aspects of SORNA are “punitive in nature.”

This meant that the new law provided added punishments for defendants above and beyond the series of Megan’s Laws that previously governed sexual offender registration.

Complying with federal law

The SORNA law that went into effect in 2012 replaced what was known as Megan’s Law III.

It was Pennsylvania’s attempt to bring sexual offender legislation into line with the federal Adam Walsh Child Protection and Safety Act.

Had the Pennsylvania General Assembly not brought its child protection laws into conformity with federal law, the state would have lost federal grant money.

In July, the Pennsylvania Supreme Court was faced with the challenge from a Cumberland County man, Jose Muniz, who was convicted during a trial by judge of two counts of indecent assault for improperly touching a 12-year-old girl.

Although Muniz was convicted in 2007 when Megan’s Law III was in effect, he

wasn’t sentenced until 2014, after SORNA became effective.

Under the former Megan’s Law that was in effect when he committed the indecent assaults, he would have been required to register with police for 10 years.

Under SORNA, which has three levels of registration for offenders, 15 years,

25 years or life, he was required to register for life.

Muniz challenged the application of SORNA, stating it violated ex post facto prohibitions of the Pennsylvania and U.S. constitutions.

The constitutions, according to the Muniz argument, prohibit the application of new sentencing laws for old cases.

Pennsylvania contended that SORNA provisions were applicable because they focused on ways to protect the public and not on imposing further punishment for defendants charged prior to Dec. 20, 2012.

The 52-page opinion delivered by Supreme Court Justice Kevin Dougherty found the application of SORNA regulations to old cases was “punitive,” pointing out that under SORNA, Muniz would be required to appear before the state police 100 times or more over a 25-year period to register four times a year, or even more, if he changed his address or job.

This was a substantial “restraint” on his freedom, the state’s highest court ruled, and found SORNA’s “operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive to its stated nonpunitive purpose.”

New legislation in works

The opinion concluded, “Accordingly, we hold the retroactive applications of SORNA to (Muniz) violates the ex post facto clause of the United States Constitution.”

Pennsylvania’s district attorneys will be working on new legislation to address the concerns of the state Supreme Court, according to Long.

“We are looking at a legislative fix that will be less burdensome and that will address those issues,” he said.

The association has a policy committee that will propose new legislation to the General Assembly.

“This won’t happen in days, but hopefully in months,” he stated.

Long made the point that each county is addressing the lack of a viable registration law for sexual offenders in its own way.

Blair County Adult Parole and Probation Director, Cory Seymour, said last week his office supervises 83 sex offenders. All are required to register.

He said his office enforces whatever court order may be involved with a case. If individuals don’t comply with the order, the case is referred to the Pennsylvania State Police.

He made the point though that individuals required to register for life are not on parole for life, which indicates there could be many more cases affected by the Supreme Court ruling.

Elensky said his office has been unable to pinpoint the number of offenders affected by the Muniz ruling.

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