Reporting requirements for sex offenders will change in December, and the dividing line for support is clearly drawn between prosecutors and defense attorneys.
While prosecutors see it as a method to tighten loopholes in the system, some defense attorneys are crying foul about a retroactive reporting component that will be set in motion.
Dan Kiss, Blair County assistant district attorney who prosecutes sex crime cases, said the changes that will take effect in December will bring Pennsylvania's laws in line with the federal Adam Walsh Act and make more crimes subject to Megan's Law reporting.
"Right now in Pennsylvania, if you're a 13-year-old girl and you get touched in an illegal way by a 40-year-old man, it's not a Megan's Law violation," Kiss said, noting that will change come Dec. 20 when the new state law takes effect. "It's going to put more people onto these sexual offender registries."
Under the new law, offenses such as indecent assault, sexual corruption of minors and statutory sexual assault - which once didn't carry a sexual offender's registration requirement - now will. Although Kiss said he still thinks the Legislature should lengthen prison sentences for sex offenders, the changes will mean better monitoring and give the public access to more information about who is living in their communities.
"For anyone who's a parent, yeah, that helps," Kiss said of the sex offender registry, adding the recidivism rate for sex offenders is "unbelievably high."
On the other side, defense attorney Thomas Dickey said he anticipates clients in this predicament coming to him after they learn of the changes and admitted there would be few avenues to fight the law's retroactive component.
"You still have to be serving your sentence," Dickey said. "Now these guys are going to have to register and they're like, 'Not only was I told by my lawyer, the prosecutor and the judge I wouldn't have to register, now you're saying I will after Dec. 20?'"
He said the Legislature has already amended a part of the registration requirement that would have affected anyone convicted of a sex crime and who already served his or her sentence. Dickey said that was scaled back earlier this year so that only those offenders still in prison or under some sort of supervision such as parole or probation will have to register, even if they pleaded guilty or were convicted when those offenses did not carry a registration requirement.
Offenders can try to attack the constitutionality of the retroactive registration requirement or they can attempt to withdraw their guilty pleas.
Dickey said neither is an attractive proposition, given case law that supports the validity of Megan's Law sanctions. He also said that withdrawing guilty pleas opens a person up to possibly harsher penalties.
Although the retroactive aspect of the law doesn't take effect until December, it's something defense attorneys already have to address, Dickey said.
"It affects the way you practice law now," he said. "You have to put your clients on notice about it."
Dickey said he anticipates there will be challenges to the retroactive registration down the road, as does attorney David Kaltenbaugh, who said until the law takes effect it can't be challenged. Enforcement of the new law will also bring challenges to its constitutionality, he said.
"[There will] be areas where police are going to push it for all it's worth and overreach and you'll have some people trying to stop it, and it will be up to the courts to sort it all out," Kaltenbaugh said, pointing out that after the Jerry Sandusky scandal it's become politically popular to be tough on sex offenders.
Kaltenbaugh said one way the new law may be challenged is based on a U.S. Supreme Court ruling that said defendants must be advised of every aspect of their plea, including so-called collateral provisions such as the registration requirement, one he noted isn't a criminal penalty but actually a civil sanction.
Dickey said he suspects the new law will impact the way plea deals are worked out.
"Plea deals are one way of resolving these sex offenses," Dickey said. "Now you have to talk to these clients and make them aware."
Kiss said sex cases are "terribly difficult cases to try because no one wants to believe rape happens." He said physical evidence of rape is the exception and not the rule. In Blair County, which ranks about 20th in the state for sex offenses, he said 90 percent of the cases involve family members or someone close to the family as the suspect.
Why pleas are reached
Deputy Blair County District Attorney Jackie Bernard said pleas are common in sexual assault cases because of the delicate nature of balancing the trauma of court proceedings with the interest of the commonwealth in upholding the law.
"You look at the facts and the evidence and take into account the ability of the victim to move forward," Bernard said. If the end result is someone pleads guilty to the most serious charge, the evidence would likely uphold in court without putting the victim through the stress of a trial, then prosecutors take the plea, she said.
Bernard said while sex offender registration may be an important issue for defendants, the Blair County District Attorney's Office doesn't use Megan's Law as a bargaining chip when working out plea deals.
Bernard wouldn't speculate whether the law's changes will spur more suspects to take their chances in court given the expansion of charges that require registration, but defense attorneys say Megan's Law already plays a big role in their client's decisions about plea deals.
"I think there's going to be a significant increase in jury trials in Blair County," said defense attorney Joel Peppetti.
He said because the new law has expanded the list of offenses, it diminishes the likelihood a deal can be brokered that avoids the registration requirement.
"I think when almost every offense is either a 15-year, 20-year or lifetime registration, then it takes a lot of discretion away from the DA's office," Peppetti said. For clients, he said, the registration requirement is a major sticking point to any plea deal.
"It's huge," Peppetti said. "It's always a major concern and it's a huge consideration. There are severe penalties for violating Megan's Law requirements."
Peppetti said with the expansion of crimes that requires registration, it will be harder to separate the true sex offenders from those on the list because of a technicality in the law.
"You run the risk of someone being labeled something they're not," Peppetti said, likening it to the 1980s when legislatures concocted mandatory minimum sentences that provided harsher penalties for crack cocaine than powder cocaine and stripped judges of discretion in sentencing offenders.
One of Peppetti's former clients, Elmer D. Grager, a Tyrone man who in 2010 pleaded guilty to statutory sexual assault and corruption of minors, would have been subject to the new law's retroactive registration requirement, but Grager's plea already included he voluntarily agree to register with the state police as a lifetime sex offender in exchange for avoiding a five-year prison sentence.
Had he not agreed to that part of the deal and chosen the prison sentence to avoid the registration, Grager would have had to register anyway come Dec. 20, Peppetti pointed out.
Adding to the workload
Lt. Todd Harman, who heads the Pennsylvania State Police Megan's Law Unit, said the law will mean more work for the state police. He said 25 civilians and four state troopers have been added to the staff in anticipation of the changes. Most significantly, state police will see the biggest change in verifying addresses of those who are registered.
Harman said as of now, 90 percent of the roughly 12,000 registered sex offenders in the state come in only once a year to verify their addresses. With the new law, 80 percent of those who now come in once a year will have to check in four times a year, once every quarter.
A significant loophole closed by the change to the law focuses on transient and homeless sex offenders as well as out-of-state offenders, Harman said. Those changes took effect in February and now give the state the necessary legal authority to force homeless or transient sex offenders to register.
"They've labeled a new type of sex offender as transient," Harman said. "They have to come in once every month to verify."
How a homeless person would verify an address is based on areas they frequent, such as a park, homeless shelter or a bridge they sleep beneath, Harman said. So far, Harman said, the tracking of transient offenders has worked, as have the provisions forcing out-of-state offenders to register or face prosecution. In the past, Harman said, the law didn't give the state any recourse if out-of-state offenders failed to register.
"If they don't comply, they'll be charged criminally," Harman said, adding non-compliance is a second- or third-degree felony.
Another change, Harman said, is offenders will have three business days to notify state police of their address change, as opposed to the 48 hours afforded now.
Getting ready for the switch to the new law started in 2010 when the state police began work on an electronic database to make registration more automated and easier, Harman said. So far, he said, it's been a lot of work but a worthwhile effort he believes makes communities safer.
Troop G, headquartered in Hollidaysburg, has consistently had one of the lowest noncompliance rates in the state, and Harman said aggressive enforcement of the law is key.
The changes won't only affect law enforcement and attorneys. The changes to the law will also impact the organization that evaluates sex offenders.
Assessments will jump
Meghan Dade, executive director of the state Sexual Offenders Assessment Board, said the changes will mean more referrals to the board for assessments of convicts given the additional offenses. Dade said the assessment board already does more than 1,000 assessments each year statewide.
"We do have the funding and staff, and we're in the process of hiring new staff to process new cases," Dade said in late August.
Dade said the law includes key changes for the way juvenile sex offenders are monitored after they turned 20, since up until now there was no supervision or follow up once they left the juvenile justice system. Now, juvenile offenders will be subject to an evaluation to determine whether they can safely be returned to society. If not, they'll be civilly committed to Torrance State Hospital in Torrance for continued treatment.
If committed, the offender will be evaluated after a year. If at that time the individual is ready, he or she will be released into what Dade called "an intensive outpatient treatment program" for another year.
Another loophole closed by the updating of Pennsylvania's Megan's Law is there now is a way to compel persons deemed sexually violent predators to attend monthly counseling, where before there was not.
Failure to attend monthly counseling carries a first-degree misdemeanor charge. That provision went into effect in February, Dade noted.
Dade stressed sex offenders are not hopeless cases and with proper management can live the rest of their lives and not re-offend. Some offenders afflicted with certain personality disorders or mental abnormalities, such as pedophilia, run a lifetime risk of re-offending if not treated, she said.
"Our goal is not to send [sex offenders] back to prison but to get them to succeed," Dade said, who added steps will be taken to notify the offender that they aren't fulfilling their counseling requirements before the matter will be turned over to state police.
Mirror Staff Writer Greg Bock is at 946-7458.