SORNA Registration and Notification: Right to Reputation; Punishment vs. Civil Regulatory Scheme

Com. v. Torsilieri, opinion and order of  (Chester Cty. C.C.P.  Aug. 22, 2022) on remand from 232 A.3d  567 (Pa. 2020), direct appeal, appeal docket 97 MAP 2022

This case, which involves the constitutionality of the registration and notification provisions of Subchapter H of the Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799.10-9799.42 (“SORNA”), returns to the Supreme Court following the 2020 remand to the Court of Common Pleas of Chester County (“trial court”), which provided the parties an opportunity to develop arguments and present additional evidence and to allow the trial court to weigh that evidence in order to determine (1) whether SORNA’s registration and notification provisions violate various constitutional protections because the irrebuttable presumption of sex offender recidivism on which they are based is not universally applicable and (2) whether the requirements result in criminal sentences in excess of statutory maximums. The trial court’s 2022 decision on remand reviewed the new evidence and arguments in support of and in opposition to the SORNA registration and notification requirements and reaffirmed its decision that the requirements are unconstitutional:

SORNA is unconstitutional both facially and as applied to this Defendant on the bases that it employs an irrebuttable presumption that is not universally applicable and because its punitive nature offends Alleyne and Apprendi; results in a criminal sentence in excess of the statutory maximums; violates Federal and State proscriptions against cruel and unusual punishment; and breaches the separation of powers doctrine.

Slip op. at 29.

Because the trial court’s order again declared SORNA unconstitutional as violative of several provisions of both the United States and Pennsylvania Constitutions, the Supreme Court has exclusive jurisdiction over the Commonwealth’s appeal pursuant to 42 Pa.C.S. § 722(7) (providing the Supreme Court with exclusive jurisdiction over “[m]atters where the court of common pleas has held [statutes] invalid as repugnant to the Constitution . . . of the United States, or to the Constitution of this Commonwealth”).

As to whether SORNA’s irrebuttable presumption violates constitutional protections, the trial court found that the presumption is unconstitutional on the basis of a three-part test that asks: (a) does the presumption  encroach on an interest protected by the due process clause? (b) is the presumption universally true? and (c) do reasonable alternative means exist for ascertaining the presumed fact? On the first prong, the trial court found that ”SORNA’s irrebuttable presumption concerning sex offenders’ heightened future dangerousness as a cohort indisputably encroaches upon a person’s fundamental right to reputation under Article I, Section 1 of the Pennsylvania Constitution,” and that right to reputation is entitled to the protection of due process. Slip op. at 3. Citing evidence from the remand proceeding, the trial court explained:

A person convicted of a sex offense subject to SORNA will likely experience difficulty in finding housing, employment/education, and establishing pro-social relationships with others, three (3) factors described by experts as the “most important” factors contributing to an offender’s successful re-entry into society and maintenance of a law-abiding lifestyle. (6/29/21, Ex D-7; Affid. of Professor Elizabeth J. Letourneau, Ph.D., at 10, para. 13 (citing research by the National Institute of Justice)). The Commonwealth suggests that offenders would experience these stigmas anyway by virtue of their public record convictions for sex offenses alone. The Commonwealth also suggests .that every offender, whether guilty of committing a sexual offense or some other type of offense, experiences the same stigmas as a result of their convictions. However, non-sexual offenders are not placed on a public registry or subject to public notification about almost every aspect of their personal lives, even if their offense were a serious violent crime. We do not place murderers on a registry, nor do we place offenders such as those convicted of Aggravated Assault or other violent crimes on a registry, regardless of how many times or how egregiously they offend. No matter what their propensity for violence may be, we do not label them or publish to the world that they are at “high risk” of committing additional violent offenses. The special stigma associated with the registry requirement is the express accusation in the legislative findings that everyone convicted of a sexual offense presents a “high risk” of sexually reoffending. This strongly implies that even though one has been convicted and served his or her sentence, one remains a serious threat to society. Virtually all aspects of his or her personal life must be reported to the State and much of it publicized to the entire world, who can access this information without knowing or caring about any specific offender in particular. It is this designation, this “scarlet letter” of “high risk”, that distinguishes the heightened stigma sexual offenders experience, and hence their greater marginalization, from that stigma merely associated with the fact of conviction that would otherwise be present in the absence of a registry and from that which is arguably experienced by nonsexually offending populations. See In re J.B., 107 A.3d 1, 16 (Pa. 2014)(“[T]he common view of registered sex offenders is that they are particularly dangerous and more likely to reoffend than other criminals.”). The public declaration based on the faulty premise that all sexual offenders are dangerous high-risk recidivists compounds the isolation and ostracism experienced by this demographic and sorely diminishes their chances of productively reintegrating into society.

Slip op. at 4-5.

On the second prong, whether the presumption is universally true, the trial court based its finding that the presumption is not universally true by sifting through and weighing the expert testimony presented by the defendant and the Commonwealth. The defense showed that 80% to 95% of all sexual offenders do not reoffend sexually. The Commonwealth responded that the research overlooks the number of sexual offenses that occur but are not reported, characterized in the literature as the “dark figure” of sexual recidivism. In response, the defense showed that there is no hard data demonstrating the rate of unreported sexual offenses, and no data showing that the rate of unreported sexual offenses is significantly higher than that regarding unreported crimes in general. The trial court concluded: “The bottom line, as the defense experts have demonstrated, is that 80% to 95% of all sex offenders will not reoffend. Consequently, we find that SORNA’s irrebuttable  presumption that all sex offenders pose a high risk of sexual recidivism is not universally true.” Slip op. at 10.

On the third prong of the test, whether reasonable alternatives exist for determining the presumed fact, the trial court concluded that “it is beyond peradventure that the answer is” that they do. The trial court cited expert affidavits  and reports presented by the defense that “demonstrate that there are other more effective means available, such as specialized treatment programs and coordinated professional support systems, to accomplish the SORNA aim of reducing sexual recidivism.” Slip op. at 11. The trial court also relied on the Supreme Court’s finding in In re J.B., 107 A.3d 1 (Pa. 2014) that individualized risk assessments are available and already used in the case of sexually violent predators and concluded that:

[A]pplication of individualized risk assessments via a pre-deprivation hearing for all sexual offenders is not only possible, but is also actually available to the criminal justice system, and constitutes a reasonable, more effective alternative for identifying high-risk recidivists and reducing sexual reoffending than the draconian public shaming/warning procedures, currently in place for all adult sexual offenders subject to Subchapter H regardless of risk.

Slip op. at 12-13.

As to the second remanded question, whether the registration and notification requirements constitute criminal punishment that results in criminal sentences in excess of statutory maximums, notwithstanding the Legislature’s stated purpose of enacting a nonpunitive civil regulatory scheme, the trial court concluded that the requirements are punitive in nature, based on the factors set forth in Kennedy v. Mendoza-Martinez, 83 S.Ct. 554 (U.S. D.C./Cal. 1963) (the “Mendoza-Martinez factors”). As the trial court explained:

The five (5) factors we must evaluate are (a) whether the requirements involve an affirmative disability or restraint; (b) whether they have been historically regarded as punishment; (c) whether their operation will promote the traditional aims of punishment retribution and deterrence; (d) whether an alternative purpose to which they may be rationally connected is assignable for them; and (e) whether the requirements appear excessive in relation to the alternative purpose assigned.

Slip op. at 15-16.

Based on the remand evidence presented and legal analysis, the trial court analyzed each factor and concluded that the registration and notification provisions are punitive in effect:

As all of the factors we have been asked to review weigh in favor of the conclusion that SORNA, as amended by Act 29, remains punitive, we find that SORNA is unconstitutional. Because SORNA constitutes punishment, it violates Alleyne [Alleyne v. United States, 133 S.Ct. 2151 (U.S. Va. 2013)] and Apprendii [Apprendi v. New Jersey, 120 S.Ct. 2348 (U.S. N.J. 2000)] results in a criminal sentence in excess of the statutory maximums; offends Federal and State proscriptions against cruel and unusual punishment; and breaches the separation of powers doctrine, as discussed in Judge Sarcione’s August 30, 2018 Opinion Sur Rule 1925(a).

Slip op. at 27.

In addition to the defendant’s and Commonwealth’s briefs in the Supreme Court, numerous amicus briefs have been filed in support of and in opposition to the trial court’s remand conclusions.


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