Is 42 Pa. C.S. § 6403 (“Act 21”), providing for civil commitment of sexually violent minors, “punitive,” and thus unconstitutional?

In re: H.R., a Minor, 196 A.3d 1059 (Pa. Super. 2018), allocatur granted April 30, 2019, appeal docket 41 MAP 2019

In 2010, when H.R. was thirteen, he sexually assaulted a younger child and was ordered to undergo inpatient treatment at a sexual offender residential treatment facility. He remains in a residential treatment placement to date. In 2018 the trial court granted the county solicitor’s petition for involuntary treatment under 42 Pa. C.S. § 6403 (“Act 21”), which permits involuntary inpatient treatment where a judge  finds “clear and convincing evidence that the person has a mental abnormality disorder which results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence.”

On appeal from that determination, H.R. argued that Act 21 is punitive, such that its retroactive application and its “clear and convincing” non-jury mechanism for adjudicating involuntary treatment is unconstitutional. The Superior Court disagreed, relying on its opinion in In re S.A., 925 A.2d 843 (Pa. Super. 2007), which held that an Act 21 involuntary commitment is not penal in nature: “The purpose and function of Act 21 is to set forth a comprehensive scheme for treating sexually violent juveniles before the ‘age out’ of the juvenile system’ by way of a civil commitment process.” Slip Op. at 5. Quoting the trial court’s recitation of the holding in In re S.A. the court explained that “the General Assembly’s intent in promulgating Act 21 was not to punish sexually violent delinquent children, but rather, to establish civil commitment procedures designed to provide necessary treatment to such children and to protect the public from danger. In re S.A., 925 A.2d at 843.” Slip Op. at 5.

Superior Court went on to reject H.R.’s argument that Act 21 runs afoul of the Supreme Court’s decisions in Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017) and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017):

[N]either Muniz nor Butler changes our disposition. Both cases considered the Sex Offender Registration and Notification Act (SORNA), not Act 21. In Muniz, the Pennsylvania Supreme Court held that the retroactive application of SORNA’s registration scheme to sexual offenders who committed their crimes before the SORNA’s effective date violates Pennsylvania’s ex post facto clause because SORNA is punitive in effect…. reliance on Butler is similarly misplaced because it again requires reliance on a presumption that the statute under review is punitive.

Slip Op. at 6-7.

Here, however, the Superior Court concluded that Act 21 is not punitive in effect such that the rationales of Muniz and Butler, which are based on the punitive nature of SORNA, do not apply.

The Supreme Court has now granted allocatur to decide whether Act 21 is punitive and thus unconstitutional, phrasing the issue as:

Is Act 21 punitive, such that its retroactive application to Petitioner and its mechanism for determining whether an individual is a sexually violent delinquent child are unconstitutional under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)?