holding that SORNA violates the ex post facto clause of Pennsylvania ConstitutionSummary of this case from Commonwealth v. Torsilieri
No. 47 MAP 2016
Timothy Lee Clawges, Esq., Michael Halkias, Esq., Linda S. Hollinger, Esq., Cumberland County Public Defender's Office, Joshua Merrill Yohe, Esq., for Appellant. David James Freed, Esq., Matthew Peter Smith, Esq., Charles John Volkert Jr., Esq., Cumberland County District Attorney's Office, for Appellee. William Joseph Conyngham, Esq., Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., for Collateral Consequences Resource Center, Amicus Curiae. Philip Gelso, Esq., for PA Association of Criminal Defense Lawyers, Amicus Curiae. Jason A. Leckerman, Esq., Ballard Spahr LLP, for Assoc. for the Treatment of Sexual Abusers, Assessment & Treatment Alternatives, Joseph Peters Inst., Amicus Curiae. Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, for Defender Association of Philadelphia, Amicus Curiae. John Jacob Hare, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Social Science Scholars, Appellant Amicus Curiae. Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, for Pennsylvania District Attorney's Association, Appellee Amicus Curiae.
Timothy Lee Clawges, Esq., Michael Halkias, Esq., Linda S. Hollinger, Esq., Cumberland County Public Defender's Office, Joshua Merrill Yohe, Esq., for Appellant.
David James Freed, Esq., Matthew Peter Smith, Esq., Charles John Volkert Jr., Esq., Cumberland County District Attorney's Office, for Appellee.
William Joseph Conyngham, Esq., Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., for Collateral Consequences Resource Center, Amicus Curiae.
Philip Gelso, Esq., for PA Association of Criminal Defense Lawyers, Amicus Curiae.
Jason A. Leckerman, Esq., Ballard Spahr LLP, for Assoc. for the Treatment of Sexual Abusers, Assessment & Treatment Alternatives, Joseph Peters Inst., Amicus Curiae.
Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, for Defender Association of Philadelphia, Amicus Curiae.
John Jacob Hare, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Social Science Scholars, Appellant Amicus Curiae.
Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, for Pennsylvania District Attorney's Association, Appellee Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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. The Superior Court held SORNA's registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA's effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses. For the following reasons, we reverse and hold: 1) SORNA's registration provisions constitute punishment notwithstanding the General Assembly's identification of the provisions as nonpunitive; 2) retroactive application of SORNA's registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA's registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.
Article I, Section 10 of the United States Constitution provides, in pertinent part: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." U.S. Const ., art. I, § 10. Article I, Section 17 of the Pennsylvania Constitution provides: "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." P a . Const. , art. I, § 17.
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. Sentencing was scheduled for May 8, 2007, at which time appellant would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan's Law III. See 42 Pa.C.S. § 9795.1 (expired). However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly had replaced Megan's Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. § 3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives. Accordingly, appellant was sentenced to four to fourteen months' imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan's Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The court denied appellant's motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.
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.
P a . Const. art. I § 1 ("All men ... have certain inherent and indefeasible rights, among which are those of ... protecting property and reputation. ...").
The Superior Court affirmed the ruling of the trial court in a three-page unpublished memorandum opinion. Commonwealth v. Muniz , No. 2169 MDA 2014, unpublished memorandum, 2015 WL 6737686 (Pa. Super. filed August 7, 2015). The panel opined Commonwealth v. Perez , 97 A.3d 747 (Pa. Super. 2014), directed its holding "the new registration regime pursuant to SORNA is constitutional under the Federal and State Ex Post Facto Clauses." Muniz , slip op. at 3, quoting Perez , 97 A.3d at 760 (SORNA is not punitive; retroactive application does not violate federal ex post facto clause). The panel further held appellant waived his reputation clause claim by failing to raise it in his post-sentence motion.
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, 526 Pa. 374, 586 A.2d 887 (1991). See Perez, 97 A.3d at 760.
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?
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.
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.
In response, the Commonwealth argues the decision of the United States Supreme Court in Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and an analysis of the factors set forth in Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), both direct SORNA is not punishment, and thus there can be no ex post facto violation. The Commonwealth focuses on the General Assembly's aim to address the "major public concern" of recidivism among adult sex offenders and indicates SORNA's terms are not excessive given this legislative purpose.
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 SORNA'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.
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 , 594 Pa. 266, 935 A.2d 865, 876 (2007). In addition, as this case presents questions of law, our scope of review is plenary and we review the lower courts' legal determinations de novo . Id .
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 , 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), citing Calder v. Bull , 3 U.S. 386, 391, 3 Dall. 386, 1 L.Ed. 648 (1798). However, as noted by Chief Justice Chase in Calder , the term ex post facto "had been in use long before the Revolution." Calder , 3 U.S. at 391. The clauses were thus also directed at the separate concern, relevant here, that individuals are entitled to "fair warning" about what constitutes criminal conduct, and what the punishments for that conduct entail. Miller , 482 U.S. at 430, 107 S.Ct. 2446 ; see also Commonwealth v. Rose , 633 Pa. 659, 127 A.3d 794, 805 (2015), quoting WAYNE R. LAFAVE, CRIMINAL LAW 116, 121 (5th ed. 2010). The United States Supreme Court, in Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), succinctly articulated this idea in stating, "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Id . at 30, 101 S.Ct. 960. Based on both these concerns, Chief Justice Chase set out four categories of laws that violate such prohibitions:
1st. Every law that makes an action done before the passing of the law, 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 , 3 U.S. at 390. Furthermore, "two critical elements" must be met for a criminal or penal law to be deemed ex post facto: "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver , 450 U.S. at 29, 101 S.Ct. 960 (footnote omitted). As such, "[o]nly those laws which disadvantage a defendant and fall within a Calder category are ex post facto laws and constitutionally infirm." Commonwealth v. Young , 536 Pa. 57, 637 A.2d 1313, 1318 (1993) (emphasis in original). The ex post facto clauses of the United States and Pennsylvania Constitutions are implicated here because a holding rendering the effects of SORNA's registration requirements punitive would place the statute into the third Calder category: application of the statute would inflict greater punishment on appellant than the law in effect at the time he committed his crimes.
IV. History of Pennsylvania Sex Offender Laws, Applicable Case Law, and SORNA
A. History of Pennsylvania Sex Offender Laws Prior to SORNA
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
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, including any subsequent change of address, is also sent to the victim of the offense, until the victim requests that such notification be terminated.
* * *
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 , 832 A.2d at 965–68 (internal citations and footnotes omitted).
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 , 624 Pa. 53, 84 A.3d 603, 607 (2013). Although this Court struck down that statute on the basis its passage violated the single subject rule, we recognized Megan's Law III made the following substantive legal changes:
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, 84 A.3d at 610–13.
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 ., 84 A.3d at 606–07 (footnotes omitted), citing 18 Pa.C.S. § 4915 ; 42 Pa.C.S. §§ 5524.1, 9792, 9795.1(a)(1), 9795.4, 9795.5, 9796, 9798, 9798.1, 9799, 9799.1, 9799.8. Megan's Law III was replaced by SORNA.
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 , 538 U.S. at 105–06, 123 S.Ct. 1140. The High Court summarized the Alaska statute as follows:
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, 189 P.3d 999 (Ak. 2008).
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
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 single, 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 nonconfidential information available on the Internet.
Smith , 538 U.S. at 90–91, 123 S.Ct. 1140 (internal citations omitted). The High Court noted that, although it had not previously considered whether a sex offender statute constituted retroactive punishment forbidden by the federal ex post facto clause, the framework for the inquiry was well established. Id . at 92, 123 S.Ct. 1140.
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 , " ‘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 .
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 governmental interest’ of the law." Id. , at 93, 123 S.Ct. 1140, citing 1994 Alaska Sess. Laws ch. 41, § 1. The Court also looked to Hendricks where it previously held "an imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded.’ " Smith , 538 U.S. at 93, 123 S.Ct. 1140, quoting Hendricks , 521 U.S. at 363, 117 S.Ct. 2072. The Court noted the location of the Act's notification provisions in the state's health, safety, and housing code suggested a civil scheme, while the location of the Act's registration provisions in the state's criminal procedure code suggested a penal intent; the Court stated neither factor was dispositive. Smith , 538 U.S. at 94, 123 S.Ct. 1140. The Court concluded the Act "does not require the procedures adopted to contain any safeguards associated with the criminal process," and led the Court to "infer that the legislature envisioned the Act's implementation to be civil and administrative." Id . at 96, 123 S.Ct. 1140. The High Court determined the statute utilized "distinctly civil procedures" and the Alaska legislature therefore "intended a civil, not a criminal sanction." Id . (internal quotations and citations omitted).
The High Court then looked to the factors listed in Mendoza–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, 123 S.Ct. 1140. The Mendoza–Martinez factors are as follows: "[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter , whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [.]" Mendoza–Martinez , 372 U.S. at 168–69, 83 S.Ct. 554 (footnotes omitted).
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 , 538 U.S. at 97–98, 123 S.Ct. 1140. The Court further found the Alaska statute involved only the dissemination of accurate information about an offender's criminal record, which is already public. Id . The Court noted the fact the information is available on the internet did not alter its conclusion, as the purpose of the internet posting was to inform the public rather than shame the offender, and the website did not allow the public to shame offenders by posting comments. Id . at 99, 123 S.Ct. 1140.
The Court also determined the Act did not impose a physical restraint. Id . at 100, 123 S.Ct. 1140. The Court found the Act did not make offenders unemployable; even in the absence of this statute, employers could conduct criminal record checks and exclude offenders from employment and those consequences flowed from the offender's conviction rather than the Act's registration and notification provisions. Id . at 100–01, 123 S.Ct. 1140. The Court noted the argument Alaska's registration system was parallel to the restraint imposed on those on probation or supervised release "has some force," but ultimately rejected it, holding offenders are "free to move where they wish and to live and work as other citizens, with no supervision." Id . at 101, 123 S.Ct. 1140. Furthermore, the Court noted although offenders were required to inform authorities of changes to their registration information, they did not need to seek permission to make such changes. Id .
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, 123 S.Ct. 1140, quoting Hudson , 522 U.S. at 105, 118 S.Ct. 488. The Court further held the registration provisions were not retributive because the duration of the reporting requirement depended on the crime rather than the risk posed by the offender. Id . The Court concluded the broad registration categories and corresponding reporting requirements "are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective." Smith , 538 U.S. at 102, 123 S.Ct. 1140.
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 , 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). The Court acknowledged both the lower court and Doe conceded the nonpunitive purpose of public safety was valid and rational. Id . at 103, 123 S.Ct. 1140. The Court further stated even though the Act may not have been narrowly drawn to accomplish that public safety purpose, a "statute is not deemed punitive simply because it lacks a close perfect fit with the nonpunitive aims it seeks to advance." Id .
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, 123 S.Ct. 1140. The Court also held the wide dissemination of the information over the internet was not excessive as the notification system was passive in that an individual must seek out the information, the website warned against using the information in a criminal manner, and making the registry available on the internet was necessary based on the general mobility of the population. Id . at 104–05, 123 S.Ct. 1140.
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, 123 S.Ct. 1140. The Smith Court then concluded the plaintiffs were unable to show the effects of the Alaska statute negated the legislature's intent to establish a civil scheme. The Court held "[t]he Act is nonpunitive, and its retroactive application does not violate the [federal] Ex Post Facto Clause ." Id . at 105–06, 123 S.Ct. 1140.
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. Williams II , 832 A.2d at 964. This Court analyzed the statute's provisions under the same two-level inquiry used by the U.S. Supreme Court in Smith . Id . at 971. As to the first question, whether the General Assembly's intent was to punish, the Williams II Court determined the statute's statement of purpose was clear in that its intent was to identify potential recidivists and avoid recidivism by providing awareness of particular risks to members of the public and providing treatment to offenders. Id. at 971–72. The Court stated the statute's purpose was therefore "not to punish, but to promote public safety through a civil, regulatory scheme." Id . at 972.
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 Constitutions; the ex post facto clauses were not at issue. However, the central question in Williams II, as in this appeal, was whether certain provisions of Megan's Law II constituted punishment. Williams II, 832 A.2d at 968–69.
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 ., qu oting Ward , 448 U.S. at 249, 100 S.Ct. 2636. The Court first found the registration requirements of Megan's Law II did not directly impose a deprivation or restraint upon sexually violent predators as they "remain free to live where they choose, come and go as they please, and seek whatever employment they may desire." Id. at 973, quoting Femedeer v. Haun , 227 F.3d 1244, 1250 (10th Cir. 2000). Thus, the Court held it could not find the clearest proof the requirements were "so onerous as to constitute an affirmative disability or restraint." Williams , 832 A.2d at 975. The Court further found it was not clear the notification requirements of Megan's Law II were analogous to public shaming, or other historical forms of punishment, as "the disclosure of factual information concerning the local presence of a potentially harmful individual is aimed, not at stigmatizing that individual, but allowing potentially vulnerable members of the public to avoid being victimized." Id . at 976.
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 prospects of registration and notification would have little deterrent effect upon a sexually violent predator. Id . at 978. The Court also found the measures were not retributive as they do not "require [a sexually violent predator to] ‘pay his debt to society,’ through the impositions of fines, restitution, or confinement." Id ., q uoting Williams v. Illinois , 399 U.S. 235, 261, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (Harlan, J., concurring).
18 Pa.C.S. §§ 3121, 3123.
The Williams II Court found the crucial 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 , 832 A.2d at 978. The Court recognized, however, that whether the behavior to which Megan's Law II applies is already a crime is of little significance in evaluating whether or not the statute is punitive because "application to past criminal conduct is ‘a necessary beginning point [where] recidivism is the statutory concern.’ " Id . at 979, citing Smith , 538 U.S. at 105, 123 S.Ct. 1140.Additionally the Court found the sixth Mendoza–Martinez factor, whether the act has a rational connection to a nonpunitive purpose, "is a ‘[m]ost significant’ factor in our determination that the statute's effects are not punitive." Id. at 979, quoting Smith , 538 U.S. at 102, 123 S.Ct. 1140. The Court noted there are "grave concerns over the high risk of recidivism among convicted sex offenders," id. at 979, quoting Smith , 538 U.S. at 103, 123 S.Ct. 1140, and it was significant that most of the notification provisions in Megan's Law II pertained to neighbors of sexually violent predators, social service agencies, schools, and day care centers. Id . The Court found concerns about information being placed on the internet to be unwarranted because Megan's Law II information was available to the public only upon request. Id . at 980. The Court distinguished Megan's Law II from New Jersey's sex offender statute which specifically authorized online dissemination of offender information. Id ., citing N.J. STAT. ANN. §§ 2C:7–12 – 2C:7–14. The Court concluded the "dissemination of sexually violent predator information to individual members of the public, upon request, appear [ed] to be a reasonable means chosen by the Legislature to serve the legitimate government interest in providing persons who may be affected by the presence of a sexually violent predator with the information they need to protect themselves[.]" Id. at 981.
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.
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, 832 A.2d at 985. The Court found these penalties must be considered punitive and unconstitutional as the new offense proceeds "directly from the Act's enforcement provisions" and "such measures are manifestly in excess of what is needed to ensure compliance[.]" Id. at 985–86.
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, which mandates that states impose on sex offenders certain tier-based registration and notification requirements in order to avoid being subject to a penalty, i.e. , the loss of federal grant funding. In re J.B. , 630 Pa. 408, 107 A.3d 1, 3 (2014). Accordingly, Pennsylvania's General Assembly sought to comply with this federal legislation by providing for "the expiration of prior registration requirements, commonly referred to as Megan's Law [III], 42 Pa.C.S. §§ 9791 – 9799.9, as of December 20, 2012, and for the effectiveness of SORNA on the same date." Id .
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 SORNA." See, e.g., United States v. Roberson, 752 F.3d 517, 518 (1st Cir. 2014) ; Commonwealth v. Nase, 104 A.3d 528, 532 (Pa. Super. 2014).
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 year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq. )." 42 U.S.C. § 16925(a).
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 subchapter. 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
( 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 and Safety Act of 2006 provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive 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 individuals: (1) those convicted of a sexually violent offense, on or after the effective date of SORNA, who are residents of Pennsylvania, employed in Pennsylvania, students in Pennsylvania or transients; (2) those who are inmates, on or after the effective date of SORNA, in state or county prisons as a result of a conviction for a sexually violent offense; (3) those who, on or after the effective date of SORNA, are inmates in a federal prison or are supervised by federal probation authorities as a result of a sexually violent offense and have a residence in Pennsylvania, are employed in Pennsylvania, are students in Pennsylvania or transients; and, pertinent to this appeal, (4) those who were required to register under previous versions of Megan's Law and had not yet fulfilled their registration period as of the effective date of SORNA. 42 Pa.C.S. § 9799.13.
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.
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, annually. 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of twenty-five years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually. 42 Pa.C.S. § 9799.15(a)(2), (e)(2). Those convicted of Tier III offenses are subject to lifetime registration and are required to verify their registration information and be photographed, in person at an approved registration site, quarterly. 42 Pa.C.S. § 9799.15(a)(3), (e)(3). The Tier III offenses enumerated in SORNA—including the crime of which appellant was convicted, indecent assault where the individual is less than thirteen years of age—are as follows:
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)(ii) (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 misleading 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) (relating 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.1) (relating to prostitution and related offenses); 18 Pa.C.S. § 5903(a)(3)(ii), (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 ward); 18 U.S.C. § 2244 (relating to abusive sexual conduct) where the victim is 13 years of age or older but under 18 years of age; 18 U.S.C. § 2251 (relating to sexual exploitation of children); 18 U.S.C. § 2251A (relating to selling or buying children); 18 U.S.C. § 2252(a)(1), (2) or (3) ; 18 U.S.C. § 2260 (relating to production of sexually explicit depictions of a minor for importation into the United States); 18 U.S.C. § 2421 (relating to transportation generally); 18 U.S.C. § 2422(b) ; 18 U.S.C. § 2423(a) ; a comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth; and an attempt, conspiracy or solicitation to commit any of the above offenses. 42 Pa.C.S. § 9799.14(c).
(1) 18 Pa.C.S. § 2901(a.1) (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.1) [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).
(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 internet communications, telephone numbers, social security number, addresses, temporary habitat if a 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 the offender's driver's license or identification card. 42 Pa.C.S. § 9799.16(c).
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)(1)(i). The website also "[c]ontains 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)(ii). 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)(1)(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 , 832 A.2d at 971. If we find the General Assembly intended to enact a civil scheme, we then must determine whether the law is punitive in effect by considering the Mendoza–Martinez factors. Id . at 972. We recognize only the "clearest proof" may establish that a law is punitive in effect. Lee , 935 A.2d at 876–77. Furthermore, in determining whether a statute is civil or punitive, we must examine the law's entire statutory scheme. Smith , 538 U.S. at 92, 123 S.Ct. 1140. A. Intent of General Assembly
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 SORNA 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 , 832 A.2d at 971. This is a question of statutory construction and "[w]e must consider the statute's text and its structure to determine the legislative objective." Smith , 538 U.S. at 92, 123 S.Ct. 1140, citing Flemming v. Nestor , 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Furthermore, "considerable deference must be afforded to the intent as the legislature has stated it." Id. at 93, 123 S.Ct. 1140. The General Assembly specifically stated SORNA "provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increased measure of protection to the citizens of this Commonwealth." 42 Pa.C.S. § 9799.11(a)(2). The statute further states "the exchange of relevant information about sexual offenders ... [is] a means of assuring public protection and shall not be construed as punitive." 42 Pa.C.S. § 9799.11(b)(2). Furthermore, the first listed purpose of SORNA is "[t]o bring the Commonwealth into substantial compliance with the [federal] Adam Walsh Child Protection and Safety Act of 2006." 42 Pa.C.S. § 9799.10(1). Nothing in the expressed purpose, legislative findings, or declaration of policy of SORNA explicitly states the legislature intended the law to do anything other than create a remedial civil scheme to comply with federal legislation and protect the public.
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 Williams II , "not to punish, but to promote public safety through a civil, regulatory scheme." Williams II , 832 A.2d at 972.
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 Mendoza–Martinez factors to determine whether SORNA is sufficiently punitive in effect to overcome the General Assembly's stated nonpunitive purpose. Williams II , 832 A.2d at 971.
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 , 538 U.S. at 100, 123 S.Ct. 1140. The Commonwealth further argues our Superior Court, in Commonwealth v. Woodruff , 135 A.3d 1045 (Pa. Super. 2016), noted the Williams II Court found monthly counseling sessions, which seem more onerous than SORNA's quarterly in-person reporting requirements, did not impose an affirmative disability or restraint under Megan's Law II. Commonwealth's Brief at 20, citing Woodruff , 135 A.3d at 1052–53. Although the Commonwealth acknowledges the Woodruff panel ultimately found this factor weighed in favor of finding SORNA's scheme to be punitive, the Commonwealth nevertheless contends this Court, in light of its prior holding regarding monthly counseling sessions in Williams II , should find this factor to weigh in favor of determining SORNA is nonpunitive. Commonwealth's Brief at 22.
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 , 538 U.S. at 102, 123 S.Ct. 1140. We hold this distinction from SORNA is important. See, e.g ., Perez , 97 A.3d at 753–54 (noting Alaska statute did not require in-person updates and distinguishing SORNA where Perez, a Tier II SORNA offender, was affirmatively required to report fifty times over twenty-five-year period). As stated, appellant, who was retroactively required to register as a Tier III offender under SORNA, is now required to appear in person at a registration site four times a year, a minimum of 100 times over the next twenty-five years, extending for the remainder of his life. See 42 Pa.C.S. § 9799.15(e)(3). In fact, this is the minimum number of times appellant will have to appear in person, and does not account for the times he must appear due to his "free" choices including "moving to a new address or changing his appearance[.]" See 42 Pa.C.S. § 9799.15(g) ; Perez , 97 A.3d at 754. Furthermore, a homeless offender, referred to in the statute as a "transient," is required to appear in person monthly, a minimum of 300 times over twenty-five years. See 42 Pa.C.S. § 9799.15(h)(1). The Commonwealth's argument the Williams II Court found more onerous monthly counseling sessions for sexually violent predators were not an affirmative disability or restraint is unpersuasive. The Williams II Court based its decision partly on the fact the counseling sessions requirement was designed to "assist the sexually violent predator, who is likely to be impulsive, irresponsible and burdened with poor behavioral controls, from relapsing into sexually predatory behavior." Williams II , 832 A.2d at 975 (footnote omitted). Under SORNA, where there has been no finding that individuals subject to the in-person registration requirements are sexually violent predators, subject to needed counseling, the in-person appearances do not constitute counseling in any event. Thus, the reasoning on this point in Williams II simply does not apply. As such, we find the in-person reporting requirements, for both verification and changes to an offender's registration, to be a direct restraint upon appellant and hold this factor weighs in favor of finding SORNA's effect to be punitive.
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.
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 , 538 U.S. at 101, 123 S.Ct. 1140. PACDL posits the stated purpose of both probation and SORNA is to promote public safety, both rest on the assumption the individual requires supervision, both are imposed by the trial court at the time of sentencing and are part of the Sentencing Code, both require regular, in-person appearances, and both probationers and registrants must comply or face sanctions. PACDL's Brief at 46–47. PACDL also contends SORNA is similar to shaming punishments and has been recognized as such by other jurisdictions. PACDL argues historical shaming punishments involved the public disclosure of similar information about offenders and SORNA's declaration that all registrants are "sex offenders" and "high risk" is akin to a scarlet letter which the offender has no mechanism to dispute. Id . at 47–48.
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., 430 Md. 535, 62 A.3d 123 (2013) ; Wallace v. State, 905 N.E.2d 371 (Ind. 2009) ; Doe, 189 P.3d 999.
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 also argues should the Court find this factor weighs in favor of finding SORNA punitive, the factor should be given little weight as probation is the least onerous and newest form of traditional punishment. Id . at 23–25, citing Woodruff , 135 A.3d at 1055. The Commonwealth also contends registration is not similar to shaming as the public display is not for the purpose of ridicule, but instead to inform the public for its own safety. Commonwealth's Brief at 25–26, citing Kammerer v. State , 322 P.3d 827, 835–36 (Wyo. 2014).
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 , 538 U.S. at 98, 123 S.Ct. 1140. The Smith Court found the sex offender information disseminated through the Alaska statute is accurate and, for the most part, already public. Id . The Court noted the publicity may cause embarrassment or ostracism for the convicted, but found "the publicity and resulting stigma [is not] an integral part of the objective of the regulatory scheme." Id . at 99, 123 S.Ct. 1140. The Court also stated the fact the information is posted on the internet did not alter its conclusion since the intent of the posting is to inform the public for its own safety, the website itself does not provide the public with a means to shame the offender, and members of the public must affirmatively seek out the information. Id .
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 , 97 A.3d at 765–66 (Donohue, J., concurring).
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 , 538 U.S. at 101, 123 S.Ct. 1140. It is clear the Alaska statute at issue in Smith and SORNA are materially different in this regard. As our analysis of the similarity to probation would be nearly identical to Justice Donohue's analysis of the issue in Perez , we again quote from her concurring opinion with minimal, bracketed, differences arising out of appellant's status as a Tier III offender:
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  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] , 832 A.2d at 977. Probation entails a set of mandatory conditions imposed on an individual who has either been released after serving a prison sentence, or has been sentenced to probation in lieu of prison time. 42 Pa.C.S. § 9754. These conditions can include psychiatric treatment, limitations on travel, and notifying a probation officer when any change of employment or residency occurs. 42 Pa.C.S. § 9754(c). Probationers are also subject to incarceration for a violation of any condition of their probation. 42 Pa.C.S. § 9771.
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–Martinez ] test leans towards a finding that SORNA is punitive.
See Perez , 97 A.3d at 763–64 (Donohue, J. concurring).
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 SORNA'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, citing Smith , 538 U.S. at 105, 123 S.Ct. 1140. The Commonwealth agrees with appellant. On the other hand, PACDL argues the question of scienter does weigh in favor of finding SORNA is punitive because registration flows directly from a finding of guilt, which requires a particular mental state. PACDL's Brief at 49, citing Smith , 538 U.S. at 105, 123 S.Ct. 1140. We recognize that where the concern of a sex offender registration statute like SORNA is protecting the public against recidivism, past criminal conduct is "a necessary beginning point." Smith , 538 U.S. at 105, 123 S.Ct. 1140. As such, we agree with the Smith Court in finding this factor is of little significance in our inquiry. See id .
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 , 618 Pa. 104, 54 A.3d 862, 878 (2012) (Castille, C.J., opinion in support of reversal). PACDL also contends the analysis here is different from that in Williams II as SORNA is different from Megan's Law II in significant ways; many SORNA offenses are misdemeanors where lengthy incarceration is unlikely and often impossible, and thus SORNA is the greatest form of deterrence for those crimes. PACDL's Brief at 50–51. As to retribution, PACDL posits registration is imposed automatically upon a conviction regardless of the underlying circumstances or the actual risk an offender may offend again. PACDL's Brief at 49–50. Thus, PACDL argues, SORNA exacts retribution for past crimes without regard to public safety interests. Id . at 50.
The Commonwealth acknowledges SORNA 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 , 538 U.S. at 102, 123 S.Ct. 1140. The Commonwealth cites several studies which state sex offender recidivism rates are difficult to measure and are likely underreported, and as such, recidivism remains a valid legislative concern. Commonwealth's Brief at 29–30. The Commonwealth further contends results of studies may vary because the area is vast and complex; thus courts and legislatures have consistently relied on information demonstrating recidivism is a significant concern for adult offenders. Id. at 31, citing United States v. Irey , 612 F.3d 1160, 1214–15 (11th Cir. 2010) (citing cases raising concerns over sex offender recidivism). The Commonwealth contends, because of contrasting studies and real recidivism concerns, this Court should be wary of PACDL's contrary conclusions. Commonwealth's Brief at 33.
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 , 538 U.S. at 102, 123 S.Ct. 1140. On careful consideration, however, we cannot say there is only a "mere presence" of a deterrent effect embodied in SORNA. See id . (emphasis added). Contrary to Megan's Law II, as analyzed in Williams II , there is not a "substantial period of incarceration attached to" many of the predicate offenses requiring registration under SORNA, many of which are misdemeanors or carry relatively short maximum terms of incarceration. Williams II , 832 A.2d at 978. This includes interference with custody of children, 18 Pa.C.S. § 2904, a misdemeanor of the second degree which does not have a sexual component, and yet is a Tier I offense under SORNA. See 42 Pa.C.S. § 9799.14(b)(3). A conviction under this subsection may not lead to incarceration, but would nevertheless require registration as a sex offender for a fifteen year period. In such a case, and for many other predicate offenses listed in the tier system, SORNA clearly aims at deterrence.
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). SORNA 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, 538 U.S. at 92, 123 S.Ct. 1140. Thus, each and every predicate offense is relevant to our analysis.
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 , 521 U.S. at 362, 117 S.Ct. 2072, and in fact, SORNA is applicable only upon a conviction for a predicate offense. We recognize the Smith Court stated the dissemination of accurate, public record information, even over the internet, did not alter its conclusion that the Alaska statute did not have a punitive effect. However, the information SORNA allows to be released over the internet goes beyond otherwise publicly accessible conviction data and includes: name, year of birth, residence address, school address, work address, photograph, physical description, vehicle license plate number and description of vehicles. See 42 Pa.C.S. § 9799.28(b)(1)–(8). Moreover, although the Williams II Court determined the dissemination of registration information provided by sexually violent predators under Megan's Law II was necessary to protect the public, the Court expressly stated the public notification and electronic dissemination provisions of that statute "need not be read to authorize public display of the information, as on the Internet." Williams II , 832 A.2d at 980. SORNA has increased the length of registration, contains mandatory in-person reporting requirements, and allows for more private information to be displayed online. Perez , 97 A.3d at 765 (Donohue, J., concurring). Under the circumstances, we conclude SORNA is much more retributive than Megan's Law II and the Alaska statute at issue in Smith , and this increase in retributive effect, along with the fact SORNA's provisions act as deterrents for a number of predicate offenses, all weigh in favor of finding SORNA punitive.
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 , 538 U.S. at 105, 123 S.Ct. 1140. PACDL notes SORNA applies only after an individual has been convicted of a predicate crime and the registration requirements cannot be waived if the offender poses little or no risk; PACDL concludes this means the factor weighs in favor of finding SORNA is punitive. PACDL's Brief at 51. The Commonwealth responds by contending Smith should control here and this factor is of little weight. Commonwealth's Brief at 35, citing Smith , 538 U.S. at 105, 123 S.Ct. 1140. As with the third Mendoza–Martinez factor discussed above, this factor carries little weight in the balance. We again recognize where SORNA is aimed at protecting the public against recidivism, past criminal conduct is "a necessary beginning point." See Smith , 538 U.S. at 105, 123 S.Ct. 1140.
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 General Assembly should be afforded deference in its judgment regarding a complex issue of social policy. Id . at 16–17.
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 , 633 Pa. 734, 128 A.3d 781, 785 (2015) (where "substantial policy considerations" are involved "such matters are generally reserved ... to the General Assembly"). The General Assembly made legislative findings that "[s]exual 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." 42 Pa.C.S. § 9799.11(a)(4). Although there are contrary scientific studies, we note there is by no means a consensus, and as such, we defer to the General Assembly's findings on this issue. We are also cognizant that the General Assembly legislated in response to a federal mandate based on the expressed purpose of protection from sex offenders. See 42 U.S.C. § 16901 ("In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this chapter establishes a comprehensive national system for the registration of those offenders...."). We therefore conclude there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive.
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 , 832 A.2d at 982–83. However, the Williams II Court ultimately found the record in that case did not include any information concerning the successful treatment of sexually violent predators to support a finding this effectively permanent requirement was excessive, given the presumption Megan's Law II was constitutional. Williams , 832 A.2d at 983. Appellant distinguishes SORNA because it does not require any judicial determination that offenders are sexually violent predators before applying its most severe requirements, and instead subjects all offenders within Tier III to the same reporting requirements as a sexually violent predator under Megan's Law II. Appellant's Brief at 25–26, citing Williams II , 832 A.2d at 983. Appellant contends SORNA's terms are excessive in this regard and he will never be able to overcome the presumption there is a high risk he will commit another sexual offense. Appellant's Brief at 25–26.
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 non-sexual 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 , 935 A.2d at 885.
The Commonwealth responds by contending appellant's excessiveness argument lacks merit as his registration requirements are not as severe as those of a sexually violent predator under SORNA, who must attend monthly counseling sessions and be monitored by the State Sexual Offenders Assessment Board. Commonwealth's Brief at 37–38, citing Woodruff , 135 A.3d at 1061. The Commonwealth further notes sexually violent predators are subject to additional public notification procedures and publication on the internet of even more private information, including where they eat, spend time, and engage in leisure activities. Commonwealth's Brief at 38, citing 42 Pa.C.S. §§ 9799.27, 9799.28. The Commonwealth further notes the Williams II Court was concerned with excessiveness in the process by which courts determine whether or not an offender is a sexually violent predator rather than the excessiveness of the reporting conditions per se . Commonwealth's Brief at 39, citing Williams II , 832 A.2d at 982.
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 , 832 A.2d at 983. Furthermore, " ‘society has a significant interest in assuring that the classification scheme [of a sex offender registration law] is not over-inclusive.’ " Lee , 935 A.2d at 883, quoting Commonwealth v. Maldonado , 576 Pa. 101, 838 A.2d 710, 715 (2003). We apply this reasoning here, and we do not analyze excessiveness as applied only to appellant or sexually violent predators, but instead we examine SORNA's entire statutory scheme. Smith , 538 U.S. at 92, 123 S.Ct. 1140. Moreover, we have already recognized SORNA categorizes a broad range of individuals as sex offenders subject to its provisions, including those convicted of offenses that do not specifically relate to a sexual act. See, e.g., 42 Pa.C.S. § 9799.14(b)(1)–(3), (19) (pertaining to: unlawful restraint, 18 Pa.C.S. § 2902(b) ; false imprisonment, 18 Pa.C.S. § 2903(b) ; interference with custody of a child, 18 Pa.C.S. § 2904 ; filing factual statement about alien individual, 18 U.S.C. § 2424 ). Accordingly, we conclude SORNA's requirements are excessive and over-inclusive in relation to the statute's alternative assigned purpose of protecting the public from sexual offenders.
viii. Balancing of Factors
Our review of SORNA under the Mendoza–Martinez factors reveals significant differences 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 given 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 nonpunitive 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 , 127 A.3d at 798 n.11 (standards applied to determine ex post facto violations under state and federal clauses are comparable; law that violates federal ex post facto clause will be held to violate state clause such that Court "need not separately consider" it); Commonwealth v. Gaffney , 557 Pa. 327, 733 A.2d 616, 621 (1999) (language of federal and state ex post facto clauses "virtually identical," same concerns shaped them, and "virtually identical standards have applied to determining whether" ex post facto violation has occurred under the two provisions). However, appellant presented a state constitutional challenge, of which we expressly granted review, and the parties and amici forwarded developed arguments on this claim. But see Perez, 97 A.3d at 766 (state ex post facto claim waived). Moreover, we are cognizant of the difficulties arising in the wake of a decision from this Court based exclusively on federal grounds, which is subsequently appealed to the United States Supreme Court and remanded after a contrary decision regarding the federal constitution; inevitably, a state claim follows and a decision rendered by this Court only after intervening uncertainty and delay. Compare Pap's A.M. t/d/b/a Kandyland v. City of Erie , 553 Pa. 348, 719 A.2d 273 (1998) (striking down nude dancing ordinance on basis of federal First Amendment protections; state constitutional claim not reached), reversed by City of Erie v. Pap's A.M. t/d/b/a Kandyland , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (upholding nude dancing ordinance as content-neutral and not violative of federal free speech protections) with Pap's A.M. t/d/b/a Kandyland v. City of Erie , 571 Pa. 375, 812 A.2d 591 (2002) (nude dancing ordinance violates Pennsylvania Constitution free speech provision). See also Doe , 189 P.3d 999 (upon remand from United States Supreme Court, retroactive application of Alaska's sex offender registration law held unconstitutional under state ex post facto clause).
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 , 585 F.3d 199, 203–06 (5th Circ. 2009) (retroactive application of federal SORNA does not violate federal ex post facto clause); United States v. May , 535 F.3d 912, 919–20 (8th Circ. 2008) (same), cert . denied , May v. United States , 556 U.S. 1258, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), abrogated on other grounds by Reynolds v. United States , 565 U.S. 432, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). Under the circumstances, we consider it salutary to decide appellant's state constitutional challenge, and our approach is not unprecedented. See Commonwealth v. Kohl , 532 Pa. 152, 615 A.2d 308, 315 (1992) ("While we have held that the searches authorized by § 1547(a)(2) violate the Federal Constitution, the constitutionality of the searches under Article I, section 8 must be addressed also. We conclude that the searches are impermissible under the Pennsylvania Constitution. The analysis underlying our holding is separate and independent from the analysis undertaken under the Federal Constitution. Therefore, our holding under the Pennsylvania Constitution would remain unchanged should the U.S. Supreme Court resolve the issue contrary to our analysis of the federal constitutional question."). Accordingly, we proceed to determine whether the Pennsylvania Constitution provides even greater ex post facto protections than its federal counterpart by analyzing the following four factors: 1) text of the Pennsylvania constitutional provision; 2) 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, and applicability within modern Pennsylvania jurisprudence. Edmunds , 586 A.2d at 894–95 (Pa. 1991).
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 subchapter 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".)
The Pennsylvania Constitution provides, in pertinent part: "No ex post facto law ... shall be passed." P A . 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-revolutionary-war concerns shaped the ex post facto provisions of the constitutions of Pennsylvania and the United States." See Young , 637 A.2d at 1317 n.7. However, "we are not bound to interpret the two provisions as if they were mirror images, even where the text is similar or identical." Edmunds , 586 A.2d at 895–96. Moreover, as amicus PACDL contends, the different location of the clauses within each document "speaks volumes." PACDL's Brief at 37. 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. See Gondelman v. Commonwealth , 520 Pa. 451, 554 A.2d 896, 904 (1989) ("those rights enumerated in the Declaration of Rights are deemed to be inviolate and may not be transgressed by government"); see also P A . CONST. art. 1, § 25 ("To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.").
Appellant next argues the history of Pennsylvania's ex post facto clause, including relevant case law, also weighs in favor of finding it provides greater protection than its federal counterpart, despite the fact this Court declined to make this distinction in Gaffney , 733 A.2d at 616. In Gaffney , this Court held the retroactive application of Megan's Law I did not violate the state or federal ex post facto clauses. Id . at 621–22. Appellant distinguishes Gaffney by noting reputation interests were not at issue because Gaffney's sexual offender registration information was not to be disseminated to the public under that statute. Appellant's Brief at 29, citing Gaffney , 733 A.2d at 621. Appellant argues this Court has recognized reputation as a protected interest in other contexts under state law, see, e.g., Hatchard v. Westinghouse Broadcasting Co. , 516 Pa. 184, 532 A.2d 346, 350 (1987), and although the federal constitution does not provide such express protection of reputation rights, this Court recently recognized an individual's right to reputation may be encroached by sex offender registration laws that brand offenders with the "indelible mark of a dangerous recidivist." Appellant's Brief at 29, quoting J.B. , 107 A.3d at 17, 19 ("SORNA registration requirements, premised upon the presumption that all sexual offenders pose a high risk of recidivating, impinge upon juvenile offenders' fundamental right to reputation as protected under the Pennsylvania Constitution.").
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 , 576 Pa. 365, 839 A.2d 265, 270 n.4 (2003) (denial of firearm application based on prior conviction was not punishment and did not violate state or federal ex post facto clauses). Finally, PACDL asserts this Court, in its decisions discussing the ex post facto clause, has stated the seventh Mendoza–Martinez factor, excessiveness, may alone be dispositive of a punitive finding in Pennsylvania. PACDL's Brief at 39, citing Lee , 935 A.2d at 876 n.24 (excessiveness alone might warrant finding Megan's Law II requirements are punitive); Williams II , 832 A.2d at 982–83 (leaving open possibility of excessiveness as determinative factor).
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 Mendoza–Martinez factor is exhaustive or dispositive. See Hudson , 522 U.S. at 101, 118 S.Ct. 488. The Commonwealth also rejects appellant's reputation-based argument by noting J.B . was confined to the unique reputation concerns for juvenile offenders and does not apply to adults who have a higher likelihood of recidivating. Commonwealth's Brief at 46–47.
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 , 935 A.2d at 876 n.24("There is some tension between the Hudson language [that no Mendoza–Martinez factor is controlling] and our own suggestion in [ Williams II ], which postdated Hudson by over five years, that the last Mendoza–Martinez factor alone might render Megan's Law unconstitutional provided an adequate showing. We nonetheless suggested in [ Williams II ] and maintain now, if only arguendo, that a showing of sufficient excessiveness in Megan's Law II's [Registration, Notification, and Counseling] provisions might warrant a finding that those provisions are punitive."). We further find persuasive in our comparison of the history of the two ex post facto clauses the fact that the Pennsylvania Constitution includes reputation as a fundamental right, see Hatchard , 532 A.2d at 350, and conclude this factor militates in favor of holding the Pennsylvania clause is even more protective than its federal counterpart.
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 , 430 Md. 535, 62 A.3d 123, 140 (2013) (sex offender statute's information dissemination provisions have same effect as public shaming); Wallace v. State , 905 N.E.2d 371, 380 (Ind. 2009) (aggressive notification provisions expose registrants to humiliation and ostracism); Doe , 189 P.3d at 1011–12 (offenders lost employment and moved out of marital homes due to fear of publication). The Commonwealth responds by arguing the majority of states have adopted the High Court's reasoning in Smith to uphold the retroactivity of their registration laws and only seven states have found such retroactive application to be unconstitutional under the ex post facto clauses of their state constitutions. Commonwealth's Brief at 47–48.
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. , 107 A.3d at 16 ("This Court has recognized that the right to reputation, although absent from the federal constitution, is a fundamental right under the Pennsylvania Constitution.") (citations omitted). We further find persuasive the fact that courts in Maryland, Indiana and Alaska, which have held retroactive application of sex offender registration laws violate ex post facto clauses under their state constitutions, have also found harm to the reputations of offenders to be a factor in their constitutional analysis, even in the absence of a constitutional provision like Pennsylvania's to give special protection to that interest. See Doe v. Dept. of Public Safety , 62 A.3d at 140 ; Wallace , 905 N.E.2d at 380 ; Doe v. State , 189 P.3d at 1011–12. We conclude this Edmunds prong weighs in favor of holding Pennsylvania's ex post facto clause provides more protection than the federal clause.
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. Appellant's Brief at 31. Appellant further argues adult sex offenders have been found to recidivate at a rate of only 13% and public policy should favor the 87% of sex offenders who will never offend again, and provide security in the knowledge that no new penalties or regulations will be imposed after they have been convicted and sentenced. Id . at 31, citing J.B ., 107 A.3d at 17. In addition, PACDL again forwards reputation-based arguments to support the position public policy weighs in favor of finding greater protection in Pennsylvania's ex post facto clause. PACDL's Brief at 40–41. The Commonwealth contends appellant's argument regarding low recidivism rates relies on statements from J.B. regarding adult recidivism rates which have been rebutted. Commonwealth's Brief at 29–30, 49. The Commonwealth further argues although reputation is a constitutionally protected right in Pennsylvania, it may be constrained, just like other rights, upon a qualifying criminal conviction and policy factors weigh in favor of protecting the public from sex offenders. Id . at 50–51.
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 , 128 A.3d at 785 (where "substantial policy considerations" are involved "such matters are generally reserved ... to the General Assembly"). However, we do find persuasive appellant's argument that both the state and offenders have an interest in the finality of sentencing, as well as the claim the Pennsylvania Constitution's special treatment of the right to reputation justifies greater protections under the Pennsylvania ex post facto clause. See Commonwealth v. Russo , 594 Pa. 119, 934 A.2d 1199, 1212 (2007) (public policy considerations unique to Pennsylvania may suggest federal doctrines are inconsistent with Pennsylvania Constitution).
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 to 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 ever-more 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.
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.
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.Chief Justice Saylor files a dissenting opinion.
Justice Mundy did not participate in the consideration or decision of this case.
Justice Wecht, 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 , 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798) ; Commonwealth v. Kalck , 239 Pa. 533, 87 A. 61, 62 (1913). To determine whether a specific law inflicts a punishment, this Court traditionally has used the United States Supreme Court's intent-effects test. See Smith v. Doe , 538 U.S. 84, 92–102, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (applying the intent-effects test in the ex post facto context); Lehman v. Pa. State Police , 576 Pa. 365, 839 A.2d 265, 271–74 (2003) (same). Under that framework, as the lead opinion explains, we first determine whether the General Assembly meant to impose a punishment. Smith , 538 U.S. at 92, 123 S.Ct. 1140. If so, our inquiry ends there. But if the General Assembly instead sought to create a civil (non-punitive) regulatory scheme, we turn to Smith 's second prong, under which we consider whether the law is "so punitive either in purpose or effect as to negate [the legislature's] intention to deem it civil." Id. (quoting United States v. Ward , 448 U.S. 242, 248–49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (internal quotation marks omitted)). In making this assessment, the seven Mendoza–Martinez factors serve as "useful guideposts," Hudson v. United States , 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), but they are "neither exhaustive nor dispositive." Ward , 448 U.S. at 249, 100 S.Ct. 2636.
Employing the OAJC's source (via now–Justice Donohue's concurring opinion in Commonwealth v. Perez, 97 A.3d 747, 765–66 (Pa. Super. 2014) (Donohue, J., concurring)), the United States Census Bureau indicates that over 61 million American households, or about 54%, had internet access at the time Smith was decided. See United States Census Bureau, Computer and Internet Use in the United States : 2003, at 2 (2005) https://www.census.gov/prod/2005pubs/p23–208.pdf. From my perspective, the increase to approximately 75% of households is not materially significant in categorizing the registration requirements as punishment.
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. Rather than stop here, the lead opinion goes one step further and concludes that the ex post facto clause of the Pennsylvania Constitution provides greater protection than its federal counterpart. As I explore in more detail below, there is little textual or historical support for this conclusion, and this Court's Article I, Section 17 decisions make the lead opinion's reasoning even less tenable. Thus, I simply would reiterate here what this Court has said many times before: the United States Supreme Court's interpretation of the federal ex post facto clause is entirely consistent with our understanding of Pennsylvania's clause. See Commonwealth v. Young , 536 Pa. 57, 637 A.2d 1313, 1317 n.7 (1993).
I would resolve this case on state constitutional grounds, and decline to address Muniz'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, 834 F.3d 696 (6th Cir. 2016), petition for cert. filed, 2016 WL 7335854 (U.S. Dec. 14, 2016) (No. 16–768) ; see Snyder v. Does #1–5, 580 U.S. ––––, 137 S.Ct. 1395, 197 L.Ed.2d 552 (2017) (inviting the Acting Solicitor General to file a brief expressing the views of the United States). Under these circumstances, I would simply hold that SORNA violates Article I, Section 17 of the Pennsylvania Constitution —a determination for which this Court is the final arbiter. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ("If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached."); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ("[S]tate courts are the ultimate expositors of state law.").
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.
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 , 526 Pa. 374, 586 A.2d 887, 895 (1991).
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. The former provides that "[n]o ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." P A . CONST. art. I, § 17. Similarly, the latter directs that "[n]o State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts ...." U.S. C ONST .art. I, § 10. In other words, as the lead opinion observes, the current text of Article I, Section 17 is nearly identical to its federal counterpart. OAJC at 1220–21.
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).
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.
Of course, identical language alone does not necessarily indicate identical meaning. Edmunds , 586 A.2d at 895–96 ("[W]e are not bound to interpret the two [constitutional] provisions as if they were mirror images, even where the text is similar or identical."). So a thorough examination of the history of the two provisions is necessary.
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 , 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring) ("The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.") (citing, inter alia , Justinian Code, Book 1, Title 14, § 7 and 1 Code Napoleon, Prelim. Title, Art. I, cl. 2 (B. Barrett trans. 1811)). And the great authorities on British common law considered ex post facto laws to be void in and of themselves. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *46 (stating that ex post facto laws are "cruel and unjust"); Calder , 3 U.S. at 391 (discussing the similar views of Blackstone's successor, Richard Wooddeson). The Framers, too, had little regard for ex post facto laws. Madison considered them to be "contrary to the first principles of the social compact and to every principle of sound legislation," THE FEDERALIST NO. 44, at 282 (James Madison) (Clinton Rossiter ed., 1961), and Hamilton described them as "the favorite and most formidable instruments of tyranny." THE FEDERALIST NO. 84, at 512 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
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, 3 U.S. at 389 (stating that the ex post facto clause "very probably arose from the knowledge ... that the Parliament of Great Britain claimed and exercised a power to pass such laws"). Parliament justified these laws by insisting that they were necessary to preserve "the safety of the kingdom." Id.
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).
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 "impl[y] 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 , 10 U.S. 87, 137–38, 6 Cranch 87, 3 L.Ed. 162 (1810).
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 , 557 Pa. 327, 733 A.2d 616, 621 (1999) ; OAJC at 1221–22.
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." P A . 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, correctly predicting that "the desire to harmonize this instrument with the Constitution of the United States will prevail"). The same records confirm that the delegates were familiar with the prevailing judicial interpretation of the United States Constitution's ex post facto clause. 3 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 28, 30 (1873) (discussing various judicial decisions, including Calder v. Bull ). Yet, the Convention vetoed a proposal to expand the scope of our clause beyond the limits that courts had established. 5 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 313–14 (1873) (rejecting a provision that would have barred all retroactive legislation, whether civil or criminal).
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 amici'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. In any event, I fail to see why the Bill of Rights—a collection of amendments that did not limit the power of state governments until after the ratification of the Fourteenth Amendment—would have been a more logical home for a provision that restricts the legislative power of the states. If anything, the presence of a substantive restriction on state police powers in Article I underscores that the Framers regarded the prohibition on ex post facto laws as an important "bulwark in favor of personal security and private rights." THE FEDERALIST NO. 44, at 301 (James Madison) (Clinton Rossiter ed., 1961).
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, 448 U.S. 555, 579, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).
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.
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 , 594 Pa. 266, 935 A.2d 865 (2007), which suggests that the seventh Mendoza–Martinez factor, standing alone, could justify the conclusion that a sanction is punitive. Id. at 876 n.24 (stating in dicta that "a showing of sufficient excessiveness in Megan's Law II's [registration, notification, and counseling] provisions might warrant a finding that those provisions are punitive"). The lead opinion evidently views this to be in conflict with the United States Supreme Court's oft-quoted warning that "no one [ Mendoza–Martinez ] factor should be considered controlling as they ‘may often point in differing directions.’ " Hudson , 522 U.S. at 101, 118 S.Ct. 488 (quoting Mendoza–Martinez , 372 U.S. at 169, 83 S.Ct. 554 ). In my view, however, there is little tension between these two instructions.
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 , 372 U.S. at 168–69, 83 S.Ct. 554. The fact that the seventh factor logically cannot stand alone renders academic any debate about whether that factor would be sufficient in isolation.
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 , 522 U.S. at 101, 118 S.Ct. 488, does not mean that the Mendoza–Martinez framework is an exercise in arithmetic, or that at least two of the seven factors must be present before a law can be deemed punitive. Rather, it simply reminds courts to consider all seven of the factors before reaching a conclusion, since some factors may outweigh others, depending upon the particular statute at issue. In this regard, the Court has emphasized that the seven factors "are all relevant to the inquiry," that they are "neither exhaustive nor dispositive," and that they are "useful guideposts." Mendoza–Martinez , 372 U.S. at 169, 83 S.Ct. 554 ; Ward , 448 U.S. at 249, 100 S.Ct. 2636 ; Smith , 538 U.S. at 97, 123 S.Ct. 1140 ; see Erin Murphy, Paradigms of Restraint , 51 DUKE L.J. 1321, 1349 (2008) (observing that Smith 's second prong "is not applied according to any precise mathematical formulation, ... and at various times the courts have emphasized particular factors over others.").
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 / Verniero test. After the United States Supreme Court adopted the intent-effects test in Smith , however, we did the same—announcing that we would abandon the Artway / Verniero test "[i]n order to promote consistency." Lehman , 839 A.2d at 271.
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, 91 Notre Dame L. Rev. at 332–33. Specifically, one commentator explains that the factors are too deferential to legislatures (given the ex post facto clause's role in safeguarding liberty), are highly subjective and manipulable, and rely in part on circular logic (e.g., a finding that a sanction is a historical form of punishment effectively resolves the initial punishment query without need to consider the other factors). See Singleton, What Is Punishment?, 45 Seton Hall L. Rev. at 443–44.
Commentators and jurists have also proposed alternative tests to determine whether a sanction is punitive. See, e.g., Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 GEO. L.J. 1, 41 (2005) ("[A] measure having the systemic effect of deterring or punishing a forbidden act should ... always be considered criminal ..., while a measure having the systemic effect of providing remediation to a party allegedly injured by an act or omission of the defendant should always be considered a civil one."); Mayson, Collateral Consequences and the Preventative State, 91 Notre Dame L. Rev. at 333 (suggesting that collateral consequences should be conceived of as falling along a "punishment-prevention spectrum ... according to whether they claim primary authorization from a judgment of culpability [ (punishment) ] or a judgment of risk [ (prevention) ]"); Smith, 538 U.S. at 112, 123 S.Ct. at 1157 (2003) (Stevens, J., dissenting) ("The sanctions [are criminal if they] (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals."). However, the United States Supreme Court has offered no indication that it is contemplating abandoning the Mendoza–Martinez model, and the parties here do not advocate for any such change.
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, 91 Notre Dame L. Rev. at 303–04 ("[C]ourts have reached a defensible result in declining to [categorize collateral consequences as punishment]. Where they have erred is in assuming that, as mere regulation, [collateral consequences] are benign. On the contrary, laws that restrict certain people's liberty on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Predictions of future crime are highly inaccurate; they tend to track stereotypes, and factors used as proxies for future risk both reflect and perpetuate race and class inequality. More fundamentally, predictive restraint contravenes the liberal ideal that the state may not preemptively restrain people who are responsible actors to stop them from committing future crimes."). However, " ‘punitive’ in the experiential sense of the word" does not equate to punishment for purposes of invalidating a legislative enactment on constitutional grounds, which ultimately appears to be reflected in the Mendoza–Martinez framework. Id. at 334.
Nor should we ignore that this Court consistently has relied upon federal precedent when resolving state ex post facto claims, see e.g ., Young , 637 A.2d at 1317 (citing Calder , 3 U.S. at 390, and Collins v. Youngblood , 497 U.S. 37, 40–51, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ); Commonwealth v. Duffy , 96 Pa. 506, 513 (Pa. 1880) (defining "ex post facto laws" consistent with Justice Chase's definition in Calder ); Kalck , 87 A. at 62 (noting that the rule announced in Calder remains unchanged), occasionally even going so far as to suggest that the resolution of an "appellant's federal ex post facto claim disposes of his state claim as well." Young , 637 A.2d at 1317 n.7 ; accord Commonwealth v. Fisher , 559 Pa. 558, 741 A.2d 1234, 1238 (1999) ("Our interpretation of the state constitutional prohibition against ex post facto laws has been consistent with the United States Supreme Court's interpretation of the federal prohibition, and therefore the analysis of Appellant's federal ex post facto claim encompasses his state claim.").
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 , 733 A.2d at 622 ("Appellant has failed to present any compelling reason for our departure from the standards appropriate for determining whether an ex post facto violation pursuant to the federal constitution has occurred and we find no independent reasons for doing so."); accord Commonwealth v. McElhenny, 329 Pa.Super. 240, 478 A.2d 447, 450 (1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania Constitution provides greater protection than the corresponding federal provision, and noting that Pennsylvania courts "have, generally, interpreted the Pennsylvania clause coterminously with the Federal clause").
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 Calder , the intent-effects test from Smith , and the seven useful guideposts from Mendoza–Martinez ). Even among the state courts that have struck down retroactive sex-offender registration laws on ex post facto grounds—a cross section that one would expect to skew in favor of finding more robust state constitutional protections—most have remained loyal to the United States Supreme Court's ex post facto jurisprudence. See e.g. , Doe v. State , 167 N.H. 382, 111 A.3d 1077, 1090 (2015) (holding that the New Hampshire Constitution and the United States Constitution "afford the same protection against ex post facto laws"); Starkey v. Oklahoma Dept. of Corr. , 305 P.3d 1004, 1019 (Okla. 2013)(adopting "the analytical framework used in Smith v. Doe "); State v. Letalien , 985 A.2d 4, 14 (Me. 2009) (holding that "the ex post facto clauses of the Maine and United States Constitutions are interpreted similarly and are coextensive"); Commonwealth v. Baker , 295 S.W.3d 437, 442 (Ky. 2009), cert. denied , 559 U.S. 992, 130 S.Ct. 1738, 176 L.Ed.2d 213 (2010) (treating the ex post facto clauses of the Kentucky and United States Constitutions as one and the same and applying Smith 's intent-effects test); Doe v. State , 189 P.3d 999, 1007 (Alaska 2008) (holding that the United States Supreme Court's "intent-effects test provides an appropriate analytical framework" under the Alaska Constitution).
See e.g., Riley v. N.J. Parole Bd., 219 N.J. 270, 98 A.3d 544, 552 (2014) ("The New Jersey Ex Post Facto Clause is interpreted in the same manner as its federal counterpart."); Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014) ("[W]e can discern no principled reason, textual or otherwise, to treat the prohibition on ex post facto laws in the Minnesota Constitution any differently than its federal counterpart[.]"); People v. Earl, 495 Mich. 33, 845 N.W.2d 721, 725 n.1 (2014) (treating the Michigan Constitution's ex post facto clause as coextensive with its federal counterpart); State v. Harris, 414 S.W.3d 447, 449 (Mo. 2013) ("The Missouri Constitution's ban on ex post facto laws is coextensive with the United States Constitution's ban on ex post facto laws."); In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305, 316 (2009) (construing Nebraska's ex post facto clause "to provide no greater protections than those guaranteed by the federal Constitution"); People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 330 Ill.Dec. 761, 909 N.E.2d 783, 800 (2009) ( "[T]he ex post facto clause in the Illinois Constitution does not provide greater protection than that offered under the United States Constitution."); Kellar v. Fayetteville Police Dept., 339 Ark. 274, 5 S.W.3d 402, 405 (1999) ("We have been given no reason why we should interpret Arkansas's ex post facto clause in a manner contrary to the ex post facto clause in the United States Constitution.").
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. , 430 Md. 535, 62 A.3d 123, 130–37 (2013). The court's departure from federal law was prompted by a very specific doctrinal glitch that arose from two nineteenth century Supreme Court cases. In the first of those cases, Kring v. Missouri , 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), the Supreme Court defined ex post facto laws to include legislation that "alters the situation of a party to his disadvantage." Id. at 235, 2 S.Ct. 443. And in the second case, Thompson v. Utah , 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), the Court held that a particular retroactive law violated the ex post facto clause because it deprived criminal defendants of "a substantial right." Id. at 352, 18 S.Ct. 620.
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 Calder 's four categories of ex post facto laws. See Anderson v. Dept. of Health & Mental Hygiene , 310 Md. 217, 528 A.2d 904, 909 (1987) (stating that the ex post facto clause "embraces consequences affecting substantial rights if they ‘disadvantage the offender’ "); State v. Rowe , 116 N.J.L. 48, 181 A. 706, 709 (N.J. Sup. 1935) (listing six categories of ex post facto laws). Other courts continued to adhere to the Supreme Court's suggestion that the ex post facto clause does not turn on whether the defendant has suffered some sort of "disadvantage." See Dobbert v. Florida , 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto .").
See also Murphy v. Kentucky, 465 U.S. 1072, 1073, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984) (White, J., dissenting from denial of certiorari ) (citing conflicting lower court decisions concerning the ex post facto clause's application to retroactive evidentiary and procedural rules).
Eventually, the Supreme Court disavowed both Kring 's "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 , 497 U.S. at 50–52, 110 S.Ct. 2715 (overruling Kring and Thompson ). Despite this clarification, the Maryland Court of Appeals (or at least a plurality of the judges on the court) continues to adhere to the now-abandoned "disadvantage" standard as a matter of state constitutional law. Doe , 62 A.3d at 132–33. In so holding, the plurality repudiated aspects of the court's earlier ex post facto decisions, some of which treated the state and federal clauses as coterminous. See e.g., Sec'y, Dept. of Pub. Safety & Corr. Servs. v. Demby , 390 Md. 580, 890 A.2d 310, 327 (2006) ("We have held that the ex post facto clause in the Maryland Declaration of Rights has the same meaning as the federal clause."); Khalifa v. State , 382 Md. 400, 855 A.2d 1175, 1189 (2004) ("The Ex Post Facto Clauses of the United States Constitution and Maryland Declaration of Rights have been viewed generally to have the ‘same meaning’ and are thus to be construed in pari materia .").
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 , 637 A.2d at 1317–18 ; see Fisher , 741 A.2d at 1238 ("[T]he Constitution does not prohibit every retrospective law that alters a party's situation to his disadvantage."). Thus, the Maryland court's departure from the prevailing federal constitutional standards provides no basis for this Court to follow suit.
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 assertedly non-punitive intent. Compare Smith , 538 U.S. at 92, 123 S.Ct. 1140 ("Because we ordinarily defer to the legislature's stated intent, ... only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty."), with Wallace v. State , 905 N.E.2d 371, 398 n.7 (Ind. 2009) ("[O]ur standard of review for challenges to the constitutionality of a statute has never included a clearest proof element."). Unlike the Supreme Court of Indiana, however, this Court has embraced Smith 's "clearest proof" requirement. Lehman , 839 A.2d at 272 ("[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty."); cf. Stilp v. Commonwealth , 588 Pa. 539, 905 A.2d 918, 939 (2006) ("[A] legislative enactment will not be deemed unconstitutional unless it clearly, palpably, and plainly violates the Constitution.").
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 ( P A . CONST. Art. 1, § 1 ) has little bearing on the question before us. As explained, the critical inquiry for purposes of the ex post facto clause, as we have understood it for more than two centuries, is whether the law at issue constitutes "punishment." Harm to reputation may help us to answer that question, but only because public ridicule and vilification of those who commit crimes historically has been (and sometimes still is) used as form of punishment. See Smith , 538 U.S. at 97, 123 S.Ct. 1140 ("Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required ‘to stand in public with signs cataloguing their offenses.’ ") (quoting Adam Jay Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts , 80 MICH. L. REV. 1179, 1226 (1982)); Gaffney , 733 A.2d at 620 (distinguishing sex-offender registries from the colonial-era punishments of "shame" and "ignominy" described in Nathaniel Hawthorne's The Scarlet Letter (1850)). This is why, as the lead opinion notes, some courts will discuss a law's impact on an offender's reputation even in the absence of an explicit constitutional right to reputation. But it is not a reason to depart from federal constitutional standards, which already require courts to consider such concerns. See e.g., Mendoza–Martinez , 372 U.S. at 168, 83 S.Ct. 554 (holding that courts must analyze both whether a sanction "has historically been regarded as a punishment" and whether it "will promote the traditional aims of punishment").
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.
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 , 584 S.W.2d 758, 762 (Tenn. 1979) (holding that the ex post facto clause of the Tennessee Constitution extends beyond the limits of its federal counterpart), with State v. Pruitt , 510 S.W.3d 398, 416 (Tenn. 2016) ("There is simply nothing in the text of our constitution nor in our history that supports the Miller Court's holding that the meaning of ‘ex post facto ’ in Tennessee is more expansive than the definition provided by Justice Chase in 1798.").
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 , 586 A.2d at 901.
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 , 594 Pa. 119, 934 A.2d 1199, 1212 (2007), and the lead opinion does not supply any pertinent policy concerns that Muniz may have overlooked.
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 SORNA is punitive and cannot be applied retroactively. Thus, I join parts I–IV and VII of the lead opinion, and otherwise concur in the result.
Justice Todd joins this concurring opinion.
Chief Justice Saylor, Dissenting
I agree with the analysis pertaining to those factors taken from Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), that are either of little weight or indicate that Pennsylvania's Sex Offender Registration and Notification Act ("SORNA") is not punitive. As to the other factors, although I recognize the significant burdens on offenders under SORNA, my reasoning closely tracks that developed in Commonwealth v. Williams , 574 Pa. 487, 832 A.2d 962 (2003) (" Williams II "), and Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Accordingly, I respectfully dissent, as I believe that SORNA does not impose punishment and, thus, does not violate either the federal or state constitutions' ex post facto clauses.
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, 832 A.2d at 974 (observing that the source cases cited by Mendoza–Martinez concerned direct deprivations or restraints, rather than ones that operated as secondary effects (citing Mendoza–Martinez , 372 U.S. at 168 n.22, 83 S.Ct. at 567 n.22 )); id. (characterizing registration as a "potential collateral restraint"). In comparison, the monthly counseling sessions at issue in Williams II effectuated a greater restraint, mandating not only an in-person appearance, but that the offender remain and receive therapeutic treatment. Nonetheless, they were not viewed as "so onerous as to constitute an affirmative disability," even apart from the notion that this mandate was intended to rehabilitate sexually violent predators. Id. at 508, 832 A.2d at 974–75. The Opinion Announcing the Judgment of the Court ("OAJC") emphasizes that the counseling requirement was justifiable on rehabilitation grounds, but does not similarly acknowledge that the purpose behind in-person reporting is to assist the public in discovering reliable and verifiable information to protect itself from potential recidivists, see 42 Pa.C.S. § 9799.10(5), a goal just as meritorious as rehabilitating an offender.
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 , 538 U.S. at 101, 123 S.Ct. at 1151. Thus, I would not find that SORNA imposes the kind of affirmative restraint or disability suggestive of a punitive effect.
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 that the Supreme Court employed in finding that worldwide internet access to offender registry information did not constitute punishment, as well as overlooks internet accessibility available at that time in other places, such as public libraries and workplaces.1 See Smith , 538 U.S. at 104–05, 123 S.Ct. at 1153–54 (observing that the internet data system was "passive," requiring an individual to "seek access to the information"); State v. Petersen–Beard , 304 Kan. 192, 377 P.3d 1127, 1134 (" Smith did not base its conclusion on some old-fashioned, dial-up modem/floppy disk notion of the World Wide Web; nor did it consider accessing offender information on the Internet [as] nothing more than a walk to the courthouse to thumb through publicly available paper files. Smith 's rationale withstands the more recent development of a mobile, smartphone Internet."), cert. denied , ––– U.S. ––––, 137 S.Ct. 226, 196 L.Ed.2d 175 (2016) ; see also Kammerer v. State , 322 P.3d 827, 834–36 (Wyo. 2014). The Court further highlighted that making the registration system "easily accessible" comported with concerns pertaining to our highly mobile society. Smith , 538 U.S. at 105, 123 S.Ct. at 1153–54 (citing DONNA D. SCHRAM & CHERYL DARLING MILROY , COMMUNITY NOTIFICATION: A STUDY OF OFFENDER CHARACTERISTICS AND RECIDIVISM 13 (1995) (explaining that over one-third of recidivist sex offenses in the State of Washington occurred in jurisdictions different from where the previous offense took place)).
Regarding the comparison to probation conditions that the OAJC proffers, see OAJC, at 1212–14 (quoting Perez , 97 A.3d at 763–64 (Donohue, J., concurring)), registration and reporting are the only required conditions imposed on registrants, albeit ones that may be viewed as onerous. See 42 Pa.C.S. §§ 9799.15, 9799.19, 9799.23(b), 9799.25. This is markedly different in both scope and nature from the litany of mandated probation provisions, which may include the following: reporting to an assigned probation officer; permitting home inspections; dispossessing firearms; maintaining employment; remaining in Pennsylvania; living in a specified residence or facility; refraining from visiting certain places; paying restitution and/or other costs; remaining at home during certain hours; reporting all arrests or citations; receiving approval to move; testing at random for drugs and alcohol; submitting to fingerprinting, photographing, and DNA sampling; complying with supervision assessments; yielding to individual or family counseling, medical or psychiatric treatment, and inpatient treatment; and acceding to any other special conditions imposed by the court. See, e.g. , id. § 9754(c); County of Allegheny, Adult Probation Rules, https://www.alleghenycourts.us/criminal/adult_probation/rules.aspx. Thus, I disagree that SORNA's requirements materially parallel the wide-ranging restrictions and oversight that demarcate probation as a historically recognized punishment. To the degree that there are coextensive aspects, they do not constitute the "clearest proof" of punishment so as to override the Legislature's stated non-punitive intent. Smith , 538 U.S. at 92, 123 S.Ct. at 1147 (quoting Hudson v. United States , 522 U.S. 93, 100, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997) ).
In terms of the scienter factor, I agree that past criminal conduct is "a necessary beginning point," OAJC, at 1214 (quoting Smith , 538 U.S. at 105, 123 S.Ct. at 1154 ), and thus, this factor is of little weight.
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 , 538 U.S. at 102, 123 S.Ct. at 1152 ); John F. Stinneford, Punishment Without Culpability , 102 J. CRIM. L. & CRIMINOLOGY 653, 679 (2012) ("[W]hen the Supreme Court says that a statute's purpose is punitive, it really means retributive. ... [N]either a purpose to deter, incapacitate, nor to rehabilitate can transform a putatively civil statute into a criminal one. Only a retributive purpose can." (footnote omitted)); Hudson v. United States , 522 U.S. 93, 102, 118 S.Ct. 488, 494, 139 L.Ed.2d 450 (1997) ("We have ... recognized that all civil penalties have some deterrent effect." (citations omitted)).
As for the OAJC's retribution analysis, its reliance on Kansas v. Hendricks , 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), appears to directly conflict with the reasoning of the Court: "The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes ...." Id. at 362, 117 S.Ct. at 2082 ; see also Sandra G. Mayson, Collateral Consequences and the Preventative State , 91 NOTRE DAME L. REV. 301, 333 (2015) (suggesting that sanctions based on judgments of culpability should be viewed as punitive, while others premised on a judgment of risk, such as sex offender registration, should be classified as collateral non-punishments). Additionally, the Smith Court's reasoning on this point is instructive, given that the information disclosed under Alaska's statute is nearly identical to that provided by an offender pursuant to SORNA, with the only exception appearing to be school addresses. Compare Alaska Stat. § 12.63.010(b)(1–2), with 42 Pa.C.S. § 9799.28(b)(1–8) ; see also Smith , 538 U.S. at 90, 123 S.Ct. at 1145–46 (listing the information disclosed via the Alaska statute). Notably, the Smith Court further explained that "[a]ny number of government programs might deter crime without imposing punishment" and "[t]o hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ ... would severely undermine the Government's ability to engage in effective regulation." Smith , 538 U.S. at 102, 123 S.Ct. at 1152 (citations omitted).
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 , 377 P.3d at 1136 (observing that the differentiation between types of sex offenses in determining the frequency of in-person reporting, while burdensome, did not indicate a punitive effect); Smith , 538 U.S. at 102, 123 S.Ct. at 1152 ("The broad categories, ... and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.").
Moreover, as the OAJC seemingly acknowledges, with one exception (i.e. , 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 none at all, or otherwise do not contain a sexual component, are not presently at issue, since Appellant's conviction for indecent assault against a minor less than 13 years in age, see 18 Pa.C.S. § 3126(a)(7), requires lifetime registration and quadrennial reporting as a tier III offender. See OAJC, at 1215 n.20. In this respect, I have significant reservations with the assertion that "each and every predicate offense is relevant" to assessing whether SORNA's reporting requirements for Appellant's underlying offenses constitute punishment.2 Id. It seems to me that such an approach is not mandated by the relevant authority and is in substantial tension with standing jurisprudence.3
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 , 372 U.S. at 169, 83 S.Ct. at 568, that command does not require a reviewing court to assess every predicate criminal conviction and associated potential sanctions. The varied registration time periods and reporting frequencies, applicable to the different tiers, may result in divergent conclusions relative to the Mendoza–Martinez factors, particularly the excessiveness inquiry, as well as the ultimate disposition, when compared to distinct offenses. See, e.g. , supra note 3. Instead, the "on its face" view appears intended to avoid addressing the particularities of statutory implementation, see Seling v. Young , 531 U.S. 250, 263, 121 S.Ct. 727, 735, 148 L.Ed.2d 734 (2001) ("[T]he civil nature of a [statutory] scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute."), rather than a reference to the conventionally understood notion of a "facial" challenge, see Smith , 538 U.S. at 106, 123 S.Ct. at 1154 (Thomas, J., concurring) ("I ... reiterate that ‘there is no place for [an implementation-based] challenge’ in our ex post facto jurisprudence. ... [T]he determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute." (quoting Seling , 531 U.S. at 273, 121 S.Ct. at 740 (Thomas, J., concurring in judgment))).4 Cf. Todd W. Wyatt, Comment, Double Jeopardy and Punishment: Why an As Applied Approach, As Applied to Separation of Powers Doctrines, Is Unconstitutional , 24 SEATTLE U. L. REV. 107, 111 (2000) (contending that an as-applied approach to punishment determinations would permit the executive branch to render a statute unconstitutional via the manner that it is implemented). In this respect, I am of the view that the present matter is limited to reviewing the requirements imposed on Appellant by virtue of the offenses for which he was convicted, i.e. , the two counts of indecent assault.
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 challenges ...."), or as diminishing other limitations on constitutional challenges. As to the latter, it appears that searching SORNA's provisions for any potential constitutional infringement, regardless of applicability to Appellant, conflicts with the requirements of standing, which mandate the complainant be adversely affected by the statutory provisions he seeks to challenge. See Am. Booksellers Ass'n, Inc. v. Rendell , 332 Pa.Super. 537, 554, 481 A.2d 919, 927 (1984). Thus, Appellant is limited to contesting only those aspects of SORNA implicated by his actual convictions. See Van Doren v. Mazurkiewicz , 695 A.2d 967, 972 n.7 (Pa. Cmwlth. 1997) (explaining that, although petitioner could challenge registration requirements under a prior sex offender statute, he could not contest other provisions that were not triggered by his conviction); Mink v. Suthers , 482 F.3d 1244, 1253 (10th Cir. 2007) ("[M]ere presence on the statute books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue ...." (internal quotation marks and citation omitted)).
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 , 574 Pa. at 527, 832 A.2d at 986 (severing, as excessive, the life imprisonment penalty for failure to comply with reporting requirements of Megan's Law II); 1 Pa.C.S. § 1925. Accordingly, I would limit review to Appellant's convictions and the applicable SORNA registration and reporting requirements.
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 , 538 U.S. at 105, 123 S.Ct. at 1154.
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. , 618 Pa. 632, 653, 57 A.3d 1232, 1245 (2012) ("[W]e have often recognized the superior tools and resources available to the Legislature in making social policy judgments, including comprehensive investigations and policy hearings."). I also emphasize that SORNA's "rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute's effects are not punitive." Smith , 538 U.S. at 102, 123 S.Ct. at 1152 (quoting United States v. Ursery , 518 U.S. 267, 290, 116 S.Ct. 2135, 2148, 135 L.Ed.2d 549 (1996) ). Accordingly, this factor strongly weighs in favor of finding that the statute does not impose punishment.
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 18 Pa.C.S. § 2902 (unlawful restraint); § 2903 (false imprisonment); § 2904 (interference with custody of child)); see also supra note 3.5 However, as discussed previously, this matter does not implicate any of those crimes. Nonetheless, I do share with the OAJC some concern that there is no provision to allow a lifetime registrant to demonstrate that he is no longer a risk to others. Thus, as to this factor, there is at least a minimal indication of punitiveness.
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.6 As for the state constitution, I agree with the OAJC to the extent that it generally finds a broader protection for reputational interests than offered by the federal constitution. See P A . CONST. art. I, § 1. However, my view diverges from the notion that SORNA operates punitively with respect to Appellant's reputation. As Justice Wecht explains in his concurring opinion, the impact of the law in this regard is already subsumed in considering whether the sanction is historically regarded as punishment and whether it promotes the traditional aims of punishment. See Concurring Opinion, at 1232 (quoting Mendoza–Martinez , 372 U.S. at 168, 83 S.Ct. at 567 ). As discussed above, the manner in which factual information is made accessible pursuant to SORNA has been rejected as constituting the type of harassment or embarrassment that reflects colonial era shaming punishments. See Smith , 538 U.S. at 98, 123 S.Ct. at 1150 ("Any initial resemblance to early punishments is ... misleading. ... [P]ublic shaming, humiliation, and banishment ... involved more than the dissemination of information."). Thus, I remain unpersuaded that the Pennsylvania Constitution's broader general protection of reputation interests results in the finding that SORNA is punishment.