[J-102-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: H.R., A MINOR : No. 41 MAP 2019
:
: Appeal from the Order of the
APPEAL OF: H.R., A MINOR : Superior Court at No. 199 EDA 2018
: dated September 21, 2018 Affirming
: the Order of the Court of Common
: Pleas of Northampton County, Civil
: Division, dated January 4, 2018, at
: No. C-0048-CV-2017-10986
:
: ARGUED: November 20, 2019
OPINION
JUSTICE DOUGHERTY DECIDED: April 1, 2020
We granted discretionary review to determine whether the Court-Ordered
Involuntary Treatment of Certain Sexually Violent Persons statute, 42 Pa.C.S. §§6401-
6409 (Act 21), constitutes criminal punishment, such that its retroactive application is
unconstitutional under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality)
(registration requirements under Pennsylvania’s Sex Offender Registration and
Notification Act (SORNA) constitute criminal punishment and retroactive application
constitutes ex post facto violation). We also review the Act 21 mechanism for determining
whether an individual is a sexually violent delinquent child (SVDC),1 and consider its
1 Under Act 21, an SVDC is defined as “[a] person who has been found delinquent for an
act of sexual violence which if committed by an adult would be a violation of 18 Pa.C.S.
§§3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse), 3124.1
(relating to sexual assault), 3125 (relating to aggravated indecent assault), 3126 (relating
validity after our recent decision in Commonwealth v. Butler, 25 WAP 2018 (Pa. filed Mar.
26, 2020) (Butler II) (SORNA requirements for sexually violent predators (SVPs) do not
constitute criminal punishment and are not subject to conditions articulated in Alleyne v.
United States, 570 U.S. 99 (2013) and Apprendi v New Jersey, 530 U.S. 466 (2000)). We
hold the Superior Court correctly determined the relevant provisions of Act 21 do not
constitute criminal punishment and therefore affirm that court’s order.
I. Background
A. The relevant statutes
Act 21 governs situations where certain sexually violent persons may be
involuntarily committed for treatment and applies under circumstances described in the
Juvenile Act, 42 Pa.C.S. §§6301-6375. Specifically, Section 6352 of the Juvenile Act
provides that a child who is adjudicated delinquent may be, inter alia, placed on probation
“under conditions and limitations the court prescribes[,]” 42 Pa.C.S. §6352(a)(2), or
committed to “an institution, youth development center, camp, or other facility for
delinquent children operated under the direction or supervision of the court or other public
authority and approved by the Department of Public Welfare [(the Department)].” 42
Pa.C.S. §6352(a)(3). Pursuant to Section 6358 of the Juvenile Act, a child who has been
found to be delinquent for certain acts of sexual violence, has been committed pursuant
to Section 6352, and who remains committed upon reaching 20 years of age “shall be
subject to an assessment by the [Sex Offender Assessment Board (the Board),]” 42
Pa.C.S. §6358(a), to determine “whether or not the child is in need of commitment for
involuntary treatment due to a mental abnormality . . . or a personality disorder, either of
to indecent assault) or 4302 (relating to incest) and who has been determined to be in
need of commitment for involuntary treatment under [Act 21].” 42 Pa.C.S. §6402.
[J-102-2019] - 2
which results in serious difficulty in controlling sexually violent behavior.” 42 Pa.C.S.
§6358(c).
When the Board finds a child is in need of continued involuntary treatment, the
court shall conduct a dispositional review hearing no later than 180 days before the child’s
21st birthday, during which the court “shall consider the assessment, treatment
information and any other relevant information regarding the delinquent child[.]” 42
Pa.C.S. §6358(e). If “the court finds there is a prima facie case that the child is in need
of involuntary treatment under the provisions of Chapter 64,[2] the court shall direct that
the county solicitor or a designee file a petition to initiate proceedings under the provisions
of that chapter.” 42 Pa.C.S. §6358(f).
Pursuant to Section 6403 of Act 21, the petition “shall set forth the facts constituting
reasonable grounds to believe the individual is within the criteria for court-ordered
involuntary treatment as set forth in subsection(a).” 42 Pa.C.S §6403(b)(2).
Subsection(a) provides that a person may be subject to court-ordered commitment for
involuntary treatment if the person:
(1) Has been adjudicated delinquent for an act of sexual
violence which if committed by an adult would be a violation
of 18 Pa.C.S. §3121 (relating to rape), 3123 (relating to
involuntary deviate sexual intercourse), 3124.1 (relating to
sexual assault), 3125 (relating to aggravated indecent
assault), 3126 (relating to indecent assault) or 4302 (relating
to incest).
2 Chapter 64 of the Judicial Code encompasses Act 21 and applies to the commitment of
SVDCs found to be in need of involuntary treatment pursuant to Section 6358. More
specifically, Chapter 64 “establishes rights and procedures for the civil commitment of
[SVDCs] who, due to a mental abnormality or personality disorder, have serious difficulty
in controlling sexually violent behavior and thereby pose a danger to the public and further
provides for additional periods of commitment for involuntary treatment for said persons.”
42 Pa.C.S. §6401. The term “mental abnormality” as used in the relevant statutes is
defined as “[a] congenital or acquired condition of a person affecting the person's
emotional or volitional capacity.” 42 Pa.C.S. §6402.
[J-102-2019] - 3
(2) Has been committed to an institution or other facility
pursuant to section 6352 (relating to disposition of delinquent
child) and remains in any such institution or facility upon
attaining 20 years of age as a result of having been
adjudicated delinquent for the act of sexual violence.
(3) Is in need of involuntary treatment due to a mental
abnormality or personality disorder which results in serious
difficulty in controlling sexually violent behavior that makes the
person likely to engage in an act of sexual violence.
42 Pa.C.S. §6403(a).
After the county solicitor or designee files a petition for involuntary treatment, the
court must hold a public hearing. 42 Pa.C.S §6403(c). If, following the hearing, the court
finds “by clear and convincing evidence that the person has a mental abnormality or
personality disorder which results in serious difficulty in controlling sexually violent
behavior that makes the person likely to engage in an act of sexual violence,” the court
must enter an order “directing the immediate commitment of the person for involuntary
inpatient treatment to a facility designated by the [D]epartment.” 42 Pa.C.S. §6403(d).
Initially, the person is committed for a one-year period, 42 Pa.C.S. §6404(a), and,
thereafter, he or she is subject to an annual review, during which the Board conducts
another assessment and the court holds a review hearing. 42 Pa.C.S. §6404(b). If,
following the review hearing, “the court determines by clear and convincing evidence that
the person continues to have serious difficulty controlling sexually violent behavior while
committed for inpatient treatment due to a mental abnormality or personality disorder that
makes the person likely to engage in an act of sexual violence,” the court must “order an
additional period of involuntary inpatient treatment of one year[.]” 42 Pa.C.S. §6404(b)(2).
Additionally, and relevant to the present appeal, Act 21 was amended in 2011 to
add provisions related to involuntary outpatient treatment (2011 amendments).
Specifically, under the 2011 amendments, if the court determines after its annual review
hearing that the person no longer has serious difficulty in controlling sexually violent
[J-102-2019] - 4
behavior in an inpatient setting, Section 6404(b)(2) directs the court to order the
Department, in consultation with the Board, to develop an outpatient treatment plan for
the person “consistent with the protection of the public safety and appropriate control,
care and treatment of the person.” 42 Pa.C.S. §6404(b)(2). A treatment facility director
or designee may also make such a determination at any time, whereupon he or she must
petition the court for a hearing, and the Board must conduct a new assessment. 42
Pa.C.S. §6404(c)(1), (2). After this hearing, “[i]f the court determines by clear and
convincing evidence that the person continues to have serious difficulty controlling
sexually violent behavior while committed for inpatient treatment due to a mental
abnormality or personality disorder that makes the person likely to engage in an act of
sexual violence,” the court must “order that person be subject to the remainder of the
period of inpatient commitment. Otherwise, the court shall order the [D]epartment, in
consultation with the [B]oard, to develop an outpatient treatment plan for the person.” 42
Pa.C.S. §6404(c). Upon the court’s approval of the outpatient treatment plan, the court
must then order the transfer of the person to involuntary outpatient treatment pursuant to
Section 6404.2. 42 Pa.C.S. §6404.1.
Significantly, the person initially must undergo involuntary outpatient treatment for
one year, 42 Pa.C.S. §6404.2(b), and the court may specify the terms and conditions of
the treatment, including, but not limited to:
(1) Absolute compliance with the outpatient treatment plan.
(2) Restrictions and requirements regarding the location of the
person’s residence and the times the person must be
physically present.
(3) Restrictions and requirements regarding areas the person
is not permitted to visit.
(4) Restrictions and requirements regarding who the person
may contact in any medium.
[J-102-2019] - 5
(5) Periodic polygraph tests.
42 Pa.C.S. §6404.2(a). If the person violates the treatment plan or any of the conditions
set forth by the court, or if the treatment provider “concludes that the person is having
serious difficulty controlling sexually violent behavior in an outpatient setting due to a
mental abnormality or personality disorder that makes the person likely to engage in an
act of sexual violence,” the court must be notified, 42 Pa.C.S §6404.2(d), whereupon “the
court shall revoke the transfer to involuntary outpatient treatment and order the immediate
return to involuntary inpatient treatment without a prior hearing.” 42 Pa.C.S. §6404.2(e).3
Individuals who have been placed in involuntary outpatient treatment are subject
to an annual review. Specifically, prior to the expiration of the one-year commitment
period, the facility must submit an evaluation, and the Board must submit an assessment
to the court. 42 Pa.C.S §6404.2(f)(1). Thereafter, the court must conduct a review
hearing. 42 Pa.C.S. §6404.2(f)(2). If, following the hearing, “the court determines by
clear and convincing evidence that the person has serious difficulty controlling sexually
violent behavior due to a mental abnormality or personality disorder that makes the
person likely to engage in an act of sexual violence,” the court must order “an additional
period of involuntary inpatient treatment of one year; otherwise the court shall order the
discharge of the person and inform the person . . . of [his or her] obligation to attend
counseling[.]” Id. Under this current scheme, it is possible that a person who was deemed
an SVDC could be subjected to involuntary inpatient or outpatient treatment indefinitely. 4
3 Although the person is returned to involuntary inpatient treatment without a hearing,
“[t]he person may file a written request for a hearing after revocation of the transfer to
involuntary treatment. The court shall conduct a hearing pursuant to [S]ection 6403(c)
(relating to court-ordered involuntary treatment) within ten days of filing of the request.”
42 Pa.C.S. §6404.2(e).
4The Pennsylvania Department of Human Services (DHS), which operates the Sexual
Responsibility Treatment Program (SRTP) for SVDCs at Torrance State Hospital filed an
[J-102-2019] - 6
B. The present appeal
On September 20, 2010, at the age of 13, appellant, H.R., was adjudicated
delinquent for indecent assault of a complainant less than 13 years of age. 5 Appellant
was placed on official probation and, pursuant to Section 6352 of the Juvenile Act, was
ordered to undergo inpatient treatment at a sex offender residential treatment facility.
Appellant remained in treatment when he turned 20 in February 2017 and he was
assessed by the Board pursuant to Section 6352, which found that involuntary treatment
at a sex offender residential treatment facility was still necessary. The Board provided its
assessment to the court of common pleas, see 42 Pa.C.S. §6358(c), which then held a
dispositional review hearing pursuant to Section 6358(e) and determined a prima facie
case had been presented establishing the need for ongoing inpatient treatment.
Thereafter, on December 7, 2017, the Northampton County Solicitor’s designee filed a
petition for involuntary treatment pursuant to Section 6403(b)(1)-(2), and appellant’s
counsel filed a motion to dismiss. On January 4, 2018, following a hearing, the court
denied the motion to dismiss and granted the petition for involuntary treatment,
determining appellant was an SVDC and committing him to one year of mental health
amicus curiae brief, not in support of either party to this appeal, but to assist this Court in
reaching its decision. DHS’s Brief at 1-2. DHS states approximately 600 individuals have
been referred for evaluation under Act 21 since it became law over 15 years ago and only
71 of those referrals resulted in court-ordered commitment to the SRTP. Id. at 2-3. DHS
further states 11 individuals have since been discharged from the program completely
and seven individuals have been discharged to outpatient treatment since the 2011
amendments took effect; two of those seven were returned to inpatient treatment and five
were completely discharged from the program. Id. at 3-4. DHS also asserts SRTP
residents are never locked in their rooms and restraints are only used in emergency
situations. Id. at 5-7. Lastly, DHS states the SRTP is highly structured, employs Cognitive
Behavioral Therapy as its primary therapy model, and its goal is to enable residents to
become healthier individuals and productive members of society. Id. at 9-10.
5Relevant information about H.R., see pp. 7-9 infra, is taken from the trial court’s sealed
order dated January 4, 2018.
[J-102-2019] - 7
treatment at Torrance State Hospital.6 Appellant filed an appeal in Superior Court,
forwarding two main arguments. First, appellant claimed Act 21 is punitive in nature, and
thus its procedure for determining whether an individual is an SVDC, which does not
comply with the principles announced in Apprendi and Alleyne,7 is unconstitutional. See,
e.g., Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) (requirements
imposed on SVPs under SORNA constitute enhanced criminal punishment such that SVP
6 Appellant was initially placed on SORNA’s sex offender registry as an SVDC but was
later removed from the registry on February 5, 2018 pursuant to Muniz and
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), rev’d Butler II.
On February 21, 2018, the General Assembly passed Act 10 of 2018, which divided
SORNA into two subchapters to address the decisions in Muniz and Butler I. Subchapter
H is based on the original SORNA statute and is applicable to offenders who committed
their offenses after the December 20, 2012 effective date of SORNA, 42 Pa.C.S.
§9799.11(c); Subchapter I is applicable to offenders, like appellant, who committed their
offenses prior to the effective date of SORNA and to whom the Muniz decision might
apply. 42 Pa.C.S. §9799.52. However, Subchapter I does not provide for the registration
of SVDCs and does not apply to those who were adjudicated delinquent for sexual
offenses as juveniles. Therefore, SORNA, as amended by Act 10 and a subsequent
amendment, Act 29 of 2018, does not apply to appellant. We recognize a determination
of SVDC status for those who committed their offenses after the effective date of SORNA
does result in an SVDC being placed on the SORNA registry under Subchapter H and
SVDCs are subject to the same registration and notification requirements as SVPs
(SORNA Subchapter H requirements), see 42 Pa.C.S. §§9799.15, 9799.16, 9799.26,
9799.27, as well as lifetime monthly counseling pursuant to Act 21, see 42 Pa.C.S.
§6404.2(g). However, as discussed more fully below, we find the SORNA Subchapter H
requirements for SVDCs are not relevant to an analysis of whether the Act 21 restrictions
constitute criminal punishment.
7 In Apprendi, the United States Supreme Court held due process requires that “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The High
Court later applied Apprendi to mandatory minimum sentences in Alleyne, holding “facts
that increase mandatory minimum sentences must be submitted to the jury,” and “found
beyond a reasonable doubt.” 570 U.S at 116. Appellant’s arguments to the Superior
Court in this regard were premised upon his SVDC status being determined by a judge,
rather than a jury, using a clear and convincing evidence standard and his claim that the
provisions of Act 21, which are applicable to him as a result of the SVDC determination,
constitute enhanced criminal punishment for his juvenile adjudication.
[J-102-2019] - 8
determination process violates due process), rev’d Butler II. Second, appellant argued
retroactive application to his case of the 2011 amendments, which entail criminal
punishment, is also unconstitutional. See, e.g., Muniz, 164 A.3d at 1218 (SORNA
requirements have punitive effect under Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963) factors8 and thus SORNA’s retroactive application constitutes ex post facto
violation).9
8 In Mendoza-Martinez, the United States Supreme Court listed the following seven
factors as a framework for determining whether a statutory sanction is so punitive as to
negate a legislature’s expressed intention to identify the scheme as civil or regulatory:
“[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[.]” 372
U.S. at 168-69 (footnotes omitted).
9 In Muniz, we held SORNA’s registration and notification requirements had punitive effect
pursuant to Mendoza-Martinez. We reasoned these statutory requirements imposed an
affirmative disability or restraint upon offenders due to the onerous in-person reporting
requirements and further found such requirements were akin to probation while the
publication provisions and online registry were similar to public shaming, both historical
forms of punishment. 164 A.3d at 1210-13. Although we determined that neither the
question of whether scienter was implicated nor whether the conduct to which SORNA
applies is already a crime were relevant to our analysis, we did find SORNA’s
requirements had a deterrent effect because they imposed substantial periods of
registration on offenders who would otherwise be subject to short terms of incarceration
and promoted retribution by providing for long periods of registration, mandatory in-
person reporting, and dissemination of private information on the internet. Id. at 1214-
16. Notwithstanding the fact we determined the SORNA requirements were rationally
connected to the nonpunitive purposes of protecting the public and preventing re-offense
by sex offenders, we concluded the requirements were excessive because they were
over-inclusive. Id. at 1217-18. Based on this analysis, we held SORNA’s requirements
were punitive and, as such, their retroactive application constituted an ex post facto
violation. Id. at 1218. The Superior Court subsequently extrapolated from our holding in
Muniz to hold Section 9799.24(e)(3) of SORNA is unconstitutional. See Butler I, 173 A.3d
at 1217-18 (SORNA requirements held punitive in Muniz, and thus, SVP designation
process in Section 9799.24(e)(3) unconstitutionally increases criminal punishment due to
failure to provide due process protections required by Apprendi and Alleyne). In doing
so, however, the Superior Court failed to recognize material differences between the
[J-102-2019] - 9
In a unanimous, published opinion, a three-judge panel of the Superior Court
affirmed. In re H.R., 196 A.3d 1059 (Pa. Super. 2018).10 The panel relied on In re S.A.,
925 A.2d 838 (Pa. Super. 2007)11 to hold the relevant provisions of Act 21 are not punitive
in either intent or effect. H.R., 196 A.3d at 1062-63. The panel additionally found
appellant’s reliance on Muniz and Butler I was misplaced because those decisions
concerned the punitive effect of SORNA rather than Act 21, which has been found
nonpunitive. Id. at 1063-64, citing S.A., 925 A.2d at 844-45. Lastly, the panel held the
2011 amendments were similarly nonpunitive because “[t]he purpose of Act 21 is to
provide for the treatment of [SVDCs]” and “[t]he out-patient provisions merely aid the court
in ensuring that a juvenile receives such treatment[.]” Id. at 1064-65.
Appellant then filed a petition for allowance of appeal in this Court and we granted
review of the following question: “Is Act 21 punitive, such that its retroactive application
to [appellant] and its mechanism for determining whether an individual is a[n SVDC] are
unconstitutional under [Muniz and Butler I]?” In re H.R., 207 A.3d 906 (Pa. 2019) (per
curiam). As we consider the arguments of the parties, “we recognize there is a general
presumption that all lawfully enacted statutes are constitutional. In addition, as this case
presents a question of law, our scope of review is plenary and we review the lower courts’
legal determinations de novo.” Muniz, 164 A.3d at 1195 (internal citations omitted).
II. Arguments
statutory requirements at issue in that case and those involved in Muniz, or the material
differences between SVPs and non-SVP sex offenders. Accordingly, we reversed the
decision in Butler II, slip op. at 30-31.
10Then Senior Judge William Platt authored the opinion, which was joined by Judge Anne
E. Lazarus and Judge Alice Beck Dubow.
11In S.A., the Superior Court held Act 21 was not intended to be punitive and the
Mendoza-Martinez factors weighed in favor of finding the statutory regime did not have a
punitive effect. 925 A.2d at 843-45. S.A. did not include discussion of the 2011
amendments as they had yet to be enacted.
[J-102-2019] - 10
Appellant’s claims regarding the constitutionality of Act 21 rise or fall on the
question of whether the statutory scheme constitutes criminal punishment. As such,
appellant contends Act 21 is punitive in effect under the Mendoza-Martinez factors. See
n.8, supra. With regard to the first factor, appellant argues the Superior Court has already
held the statute imposes an affirmative disability or restraint in S.A., 925 A.2d at 843-44,
which was decided “before the addition of mandatory outpatient treatment via the [2011
amendments.]” Appellant’s Brief at 30. Coupled with the new limitations on discharge,
appellant contends involuntary inpatient treatment constitutes an affirmative disability or
restraint and this factor weighs in favor of finding Act 21 punitive. Id. at 31. Appellant
also contends the SORNA Subchapter H requirements faced by many SVDCs provide
additional affirmative disabilities or restraints for the same reasons the Muniz Court found
the SORNA requirements to be an affirmative disability or restraint. Id. at 31-32.12
With regard to the second factor, appellant claims the involuntary outpatient
treatment of SVDCs is akin to probation — historically considered to be punishment —
because such outpatient treatment plans may include absolute compliance, restrictions
regarding where SVDCs may reside and visit, whom they may contact, and periodic
polygraph tests where failure to comply can result in a return to involuntary inpatient
treatment. Id. at 34-35. Appellant contends such conditions “intimately resemble the sort
of conditions typically associated with probation” and this factor weighs in favor of finding
Act 21 punitive. Id. at 35. Appellant further argues the SORNA Subchapter H
12 Appellant recognizes he is not subject to the SORNA Subchapter H requirements, but
he includes discussion of them in his analysis because he claims Act 21 is
unconstitutional on its face. Appellant’s Brief at 27-29. Appellant contends these
allegedly punitive requirements must be considered in his facial challenge because “all
former delinquents found to be SVDCs on or after December 20, 2012” are subject to
Subchapter H, and thus, a substantial number of Act 21’s potential applications are
unconstitutional. Id. at 29, citing Clifton v. Allegheny Cty., 969 A.2d 1197, 1223 n.36 (Pa.
2009) (facial challenge must demonstrate substantial number of challenged statute’s
potential applications are unconstitutional).
[J-102-2019] - 11
requirements enhance the punitive weight of this factor because, as stated in Muniz,
those requirements are similar to both probation and public shaming. Id. at 35-36.
Appellant then claims the third Mendoza-Martinez factor in determining punitive
effect — whether the statute comes into play only after a finding of scienter — is of little
significance to the inquiry and moves on to a discussion of the fourth factor — whether
the statute promotes retribution and deterrence. Id. at 37. Although S.A. held this factor
did not weigh in favor of finding Act 21 punitive, appellant points out the S.A. court also
stated the provisions of Act 21 “‘could possibly deter behavior of delinquent juveniles.’”
Id., quoting S.A., 925 A.2d at 844. Appellant further argues the 2011 amendments alter
the analysis conducted by the S.A. court as outpatient treatment which “impose[s]
probationary-like conditions on an individual, following his release from inpatient
treatment, who no longer has serious difficulty controlling his sexually violent behavior.”
Id. at 38. Additionally, appellant claims the 2011 amendments require yearly review
hearings even after a discharge to outpatient treatment, which “permits a never-ending
loop of commitment, not only of continuous involuntary inpatient treatment, but of
involuntary inpatient to outpatient treatment and back to inpatient treatment, a cycle that
must certainly have a deterrent effect to potential offenders.” Id. at 39. Lastly, appellant
relies on Muniz to argue the SORNA Subchapter H requirements also have a deterrent
and retributive effect on offenders. Id. Based on the above, appellant contends this factor
weighs in favor of finding Act 21 is punitive. Id. at 40.
Appellant then claims the fifth Mendoza-Martinez factor — whether the behavior
to which the statute applies is already a crime — carries little weight in this case. Id. at
41. With respect to the sixth factor — whether the provisions of Act 21 are rationally
related to an alternative nonpunitive purpose — appellant concedes it weighs in favor of
finding Act 21 nonpunitive as both the Act 21 and SORNA Subchapter H requirements
[J-102-2019] - 12
are rationally related to a purpose other than punishment. Id. Regarding excessiveness,
the final Mendoza-Martinez factor, appellant contends “[t]he onerous restrictions that Act
21 places on an outpatient SVDC vastly exceed any potential public safety concerns
given that, by definition, an outpatient SVDC has been found to not have serious difficulty
controlling his sexually violent behavior.” Id. Appellant further claims “[i]t is notable that
Act 21 was enacted in 2003, which means that, for eight years, the General Assembly
viewed the statute as capable of protecting the public without the onerous additional
outpatient treatment obligation.” Id. at 42. Appellant contends it is clear Act 21 is now
excessive and the final factor weighs in favor of finding the statute punitive. Accordingly,
appellant argues the process for determining whether an individual is an SVDC is
unconstitutional and the retroactive application of the 2011 amendments is
unconstitutional under the ex post facto clauses of the United States and Pennsylvania
Constitutions pursuant to Muniz.
In response, appellee, the Northampton County Office of the Solicitor, argues Act
21 is not punitive because “the only consequence of a judicial determination that a young
person has a mental abnormality or personality disorder that makes him or her likely to
engage in predatory sexually violent offenses is court-ordered treatment[,]” which is
different from the consequences in Muniz and Butler I. Appellee’s Brief at 8-9. To this
point, appellee contends the SORNA Subchapter H requirements are not relevant to our
analysis “because any punitive ramifications arising from a statutory SVDC designation
under Act 21 are wholly contained in SORNA” and “Act 21 is a complete law standing on
its own, such that the subject matter and the procedures set forth therein are in no way
impaired, rendered impossible, or rendered meaningless by the invalidation of any portion
of SORNA.” Id. at 10-11.
[J-102-2019] - 13
Appellee then discusses the Mendoza-Martinez factors. Appellee first recognizes
that involuntary civil commitment, i.e. confinement or detention, is an affirmative disability
or restraint sometimes considered to be punishment. Id. at 16. However, appellee notes
the Superior Court has held “‘the confinement of mentally unstable individuals who
present a danger to the public [is a] classic example of nonpunitive detention.’” Id.,
quoting S.A., 925 A.2d at 844 (internal citation and quotation omitted). Appellee further
states “[t]his finding is also dispositive of the second factor . . . which requires a
determination as to whether the challenged sanction has historically been regarded as
punishment.” Id. Next, appellee claims the third factor weighs in favor of finding Act 21
nonpunitive because no finding of scienter is required to commit an individual under Act
21. Id. at 16-17. With regard to the fourth factor, appellee argues “[a] law simply cannot
deter mental abnormalities or personality disorders” and “because Act 21 may operate on
an individual’s mental condition and their need for mental health treatment, it is not
retributive.” Id. at 17 (citation omitted). Appellee then agrees with appellant that whether
the behavior to which Act 21 applies is already a crime is not significant to our analysis
and that Act 21 is rationally related to the nonpunitive purpose of protecting the public,
which weighs in favor of finding Act 21 nonpunitive. Id. at 18. Regarding excessiveness,
appellee contends the 2011 amendments, including the outpatient treatment
requirements, are not excessive but instead “exist for ensuring that the individual receives
the treatment and support necessary to effectuate the improvement of his mental health.”
Id. at 21.
In conclusion, appellee posits the statutory regime is clearly treatment rather than
punishment and compares Act 21 with the Mental Health Procedures Act (MHPA), 50
P.S. §§7101-7503, which uses a clear and convincing evidence standard and does not
require a crime to take place to commit an individual for involuntary treatment. Appellee’s
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Brief at 23. Appellee observes involuntary treatment can be indefinite under the MHPA
and the MHPA also provides for the possibility of outpatient treatment with a possible
return to inpatient treatment just like Act 21. Id. at 24-25, citing 50 P.S. §7301(c). Finally,
appellee notes the Superior Court has found involuntary commitment under the MHPA
constitutional, id. at 25, citing In re R.G., 11 A.3d 513 (Pa. Super. 2010) and the Supreme
Court of the United States has found similar involuntary commitment statutes
constitutional. Id. at 26, citing Jones v. United States, 463 U.S. 354 (1983). Appellee
thus rejects appellant’s attempt “to create a higher standard than the law provides by
convoluting treatment and punishment.” Id.
The Pennsylvania Office of Attorney General (OAG) intervened in the matter and
filed a brief in support of appellee. The OAG contends Act 21 “is a civil, administrative
statute focused on providing therapy to SVDCs in a setting commensurate with the risk
they pose to the public, and which accounts for that risk through in-patient and out-patient
treatment and counseling.” OAG’s Brief at 14. The OAG further points out Act 21 relates
to juvenile proceedings, which are separate and apart from criminal proceedings and
therefore the due process rights at issue in Butler I do not apply because “neither the
Pennsylvania courts nor United States Supreme Court have found a due process right to
a jury trial in juvenile adjudications.” Id. at 22, citing McKeiver v. Pennsylvania, 403 U.S.
528 (1971). Additionally, the OAG argues Muniz is of limited precedential value to the
instant case for two reasons: 1) “Act 21 is separate from [SORNA] and Pennsylvania’s
sex offender registration scheme, and Act 21’s constitutionality does not depend on the
constitutionality of [SORNA;]” and 2) “[appellant] does not have to register as a sex
offender, so any [SORNA]-specific concerns do not apply to him or this appeal.” Id. at
26.
[J-102-2019] - 15
The OAG further contends Act 21 satisfies all the requirements of a nonpunitive
civil commitment statute as established by the United States Supreme Court in Kansas
v. Hendricks, 521 U.S. 346 (1997), which identified six features of nonpunitive civil
commitment statutes by stating, “‘[w]here the State has (1) disavowed any punitive intent;
(2) limited confinement to a small segment of particularly dangerous individuals; (3)
provided strict procedural safeguards; (4) directed that confined persons be segregated
from the general prison population and afforded the same status as others who have been
civilly committed; (5) recommended treatment if such is possible; and (6) permitted
immediate release upon a showing that the individual is no longer dangerous or mentally
impaired, we cannot say that it acted with punitive intent.’” Id. at 29-30, quoting Hendricks,
521 U.S. at 368-69 (internal quotation marks omitted). The OAG states “the General
Assembly intended Act 21 as civil and therapeutic” and even appellant “has
acknowledged that Act 21 was not intended as punitive[,]” which demonstrates the
General Assembly has disavowed any punitive intent. Id. at 31. Additionally, the OAG
contends Act 21 applies only to a limited number of particularly dangerous individuals:
SVDCs must have committed a serious act of sexual violence; failed to progress in the
juvenile system by their 20th birthday; and possess a mental abnormality or personality
disorder that compels them to commit further acts of sexual violence. Id. at 32-33. The
OAG further argues Act 21 provides strict procedural safeguards before and after a
commitment such as notice, a dispositional review hearing, a final hearing which includes
the right to counsel and an expert, a clear and convincing evidence burden placed on the
Commonwealth, the right to appeal, and annual reviews. Id. at 34. The OAG notes
committed SVDCs reside in mental health facilities rather than prisons and Act 21
requires “a rigorous individualized treatment program implemented by” the staffs of such
facilities. Id. at 41. Lastly, the OAG argues SVDCs may be released from inpatient and
[J-102-2019] - 16
outpatient treatment immediately upon showing they are no longer impaired at their
annual review. Id. at 41-42. The OAG thus concludes Act 21 is nonpunitive pursuant to
Hendricks.
The OAG argues a Mendoza-Martinez analysis leads to the same result. Although
it acknowledges Act 21 imposes an affirmative disability or restraint, the OAG contends
“detention ‘does not inexorably lead to the conclusion that the government has imposed
punishment,’ and that the state’s ability to restrict the freedom of the dangerously unstable
mentally ill is ‘one classic example of nonpunitive detention.’” Id. at 48, quoting S.A., 925
A.2d at 844 (internal citation and quotation omitted). The OAG further argues the
outpatient treatment provisions for SVDCs do not constitute an affirmative disability or
restraint based on the similarities between SVDCs and SVPs and the fact that “the Muniz
Court’s holding did not upset its finding in [Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003) (Williams II)]13 that the more-demanding counseling requirements for SVPs do not
13 In Williams II, this Court considered whether the registration, notification and counseling
(RNC) requirements applicable to SVPs under Megan’s Law II, a predecessor to SORNA,
constituted criminal punishment. 832 A.2d at 964. The Williams II Court conducted an
analysis under the Mendoza-Martinez rubric and found all factors weighed in favor of
finding the RNC requirements nonpunitive. Specifically, and relevant to this appeal,
Williams II found the RNC requirements: 1) did not impose an affirmative disability or
restraint because SVPs “remain[ed] free to live where they choose, come and go as they
please, and seek whatever employment they may desire[;]” 2) were not analogous to
public shaming or probation because disclosure of personal information was “aimed, not
at stigmatizing [SVPs], but at allowing potentially vulnerable members of the public to
avoid being victimized” and “counseling, by its very nature, is rehabilitative[;]” 3) did not
apply based upon a finding of scienter because SVP status was determined “based upon
a mental abnormality[;]” 4) did not promote retribution and deterrence because “they do
not require the individual to pay his debt to society” and SVPs, by definition, are “not likely
to be deterred, even by the threat of confinement[;]” 5) were not applied to criminal
conduct or “conduct at all, but to an individual’s status as suffering from a serious
psychological defect[;]” 6) were rationally connected to the nonpunitive purpose of
protecting the public; and 7) were “not in themselves sufficiently onerous to qualify as
punishment based upon alleged excessive.” Id. at 973-83 (internal citations and
quotations omitted). Regarding excessiveness, however, the Williams II Court
recognized “one of the most troubling aspects of [Megan’s Law II was] that the [RNC
[J-102-2019] - 17
constitute an affirmative disability or restraint because of their therapeutic nature.” Id. at
49-50, citing Muniz, 164 A.3d at 1211 and Williams II, 832 A.2d at 973-75.
The OAG also argues that neither inpatient nor outpatient treatment for sex
offenders has historically been regarded as punishment because “‘counseling does not
serve punitive ends[,]’” id. at 52, quoting Williams II, 832 A.2d at 977, and individuals are
not subject to inpatient and outpatient treatment based on a conviction under Act 21 but
instead based on “the meaning of the facts at hand, along with the interpretations and
analyses of experts tasked with assessing [the individual.]” Id. at 53 (internal quotation
omitted) (emphasis in original). As such, the OAG contends the second factor weighs in
favor of finding Act 21 nonpunitive. The OAG also finds the third factor — whether Act
21 restrictions are triggered only upon a finding of scienter — to be significant since,
unlike in Muniz, “criminal intent does not determine whether a person is an SVDC, but
rather whether they have a mental abnormality or personality disorder.” Id. at 55 (citations
omitted). As such, the OAG claims this factor “further supports finding [Act 21]
nonpunitive.” Id.
Along these lines, the OAG also claims the differences between SVDCs and the
non-SVPs at issue in Muniz support a finding that Act 21 does not promote the traditional
aims of punishment — retribution and deterrence — and this factor also weighs in favor
of finding Act 21 nonpunitive. Id. In support of this assertion, the OAG contends because
SVDCs are unlikely to be deterred due to a mental abnormality or personality disorder
that prevents them from exercising control over their behavior, “the deterrence rationales
requirements last] for the [SVPs] entire lifetime” and “[a] reasonable argument could be
made that, to avoid excessiveness, the Legislature was required to provide some means
for a [SVP] to invoke judicial review in an effort to demonstrate that he no longer poses a
substantial risk to the community.” Id. a 982-83. However, since the record in that case
did not provide any information regarding successful SVP treatment, the Williams II Court
found its consideration of the Mendoza-Martinez factors led to the conclusion that the
RNC requirements under Megan’s Law II were nonpunitive. Id. at 983-84.
[J-102-2019] - 18
discussed in Muniz do not apply to those burdened with such sexually deviant compulsive
impulses.” Id. at 56. The OAG also claims Muniz is distinguishable because Act 21
applies only to those adjudicated delinquent for a small number of serious crimes who
are also found to possess a mental abnormality or personality disorder whereas the
SORNA requirements at issue in Muniz strictly applied to those convicted of a large
number of crimes, many of which were misdemeanors. Id. at 57, citing Muniz, 164 A.3d
at 1214-15. The OAG further claims retribution is not at issue under Act 21 “because
designation as an SVDC does not follow a juvenile adjudication, but results from the
processes set forth in the statute[.]” Id. at 59. The OAG argues the fifth factor — whether
the behavior to which Act 21 applies is already a crime — is significant here and supports
a finding Act 21 is nonpunitive because individuals are subject to Act 21 when “they
possess a mental abnormality or personality disorder resulting in serious difficulty
controlling sexually violent behavior, not because they were adjudicated delinquent.” Id.
at 60.
Relying on S.A., the OAG argues it is “‘[i]ndisputable that non-punitive purposes
[of] Act 21 are the safety of the public and treatment of [SVDCs]’” and “this factor supports
finding Act 21 nonpunitive.” Id., quoting S.A., 925 A.2d at 844. Regarding excessiveness,
the OAG argues this Court’s concerns in Muniz about the volume of offenses that required
registration under SORNA “do not apply to Act 21, which references only a limited number
of serious sex offenses[,]” and this Court’s concerns in Williams II regarding the fact
Megan’s Law II lacked a mechanism allowing SVPs to challenge their designation “do not
apply to Act 21, which requires annual review of an SVDC’s civil commitment and a
renewed finding that they continue to qualify for inpatient treatment.” Id. at 61-62. The
OAG further claims outpatient treatment, which is “less-restrictive and less-onerous” is
not punishment but instead “serves to facilitate an SVDC’s safe transition from a confined
[J-102-2019] - 19
controlled environment to an independent life in the community, while seeking to avoid
relapse into sexually violent conduct through continued therapy and supervision.” Id. at
62. Accordingly, the OAG contends “Act 21 is not excessive in relation to its purpose[s]
of treatment and protecting the public from SVDCs, and this factor further supports finding
the Act nonpunitive.” Id. The OAG emphasizes that, “[a]part from the inpatient
commitment of SVDCs under Act 21 functioning as an affirmative disability or restraint,
all of the Mendoza-Martinez factors support finding Act 21 nonpunitive.” Id.
Alternatively, the OAG argues even if this Court were to hold Act 21 is punitive, the
process for determining whether an individual is an SVDC does not violate Alleyne and
Apprendi for two reasons. First, the OAG contends the Apprendi rule does not apply here
because Apprendi applies only to criminal proceedings and “Act 21 does not involve
criminal law or criminal proceedings,” which is proven by the fact that appellant “was never
charged with or convicted of a crime and was not committed to inpatient treatment under
Act 21 pursuant to a criminal conviction.” Id. at 68. Second, the OAG, relying upon
Oregon v. Ice, 555 U.S. 160 (2009), contends the Alleyne and Apprendi principles are
inapposite where “the facts in question were not those traditionally decided by juries under
the common law.” Id. at 70. In support of this theory, the OAG claims “[b]ecause Act 21
is a part of a recent phenomenon of sex offender-specific statutory schemes unconnected
to historical, common-law practices, the Apprendi rule does not apply.” Id. at 72. The
OAG further argues that whether an individual has a mental abnormality or personality
disorder is the type of evidence that would not normally be determined by a jury as
“evidence relevant to whether a defendant is likely to reoffend or pose a future danger to
the public is exactly the type typically precluded from a jury’s consideration, because such
facts ‘could substantially prejudice the defense at the guilt phase of a trial.’” Id. at 79,
quoting Ice, 555 U.S. at 172. As such, the OAG contends this Court should “rule that
[J-102-2019] - 20
judicial fact-finding under Act 21 falls outside the scope of Apprendi and Alleyne and is
not subject to the Apprendi rule.” Id. at 83.
III. Analysis
As we have seen, appellant believes the retroactive application of Act 21 to his
case results in an ex post facto violation pursuant to Muniz, and that Act 21’s mechanism
for determining whether an individual is an SVDC violates due process. However,
appellant may succeed in the present appeal only if we first determine Act 21 constitutes
criminal punishment. See Muniz, 164 A.3d at 1208 (ex post facto claims depend upon
finding sanctions constitute criminal punishment); Commonwealth v. Lee, 935 A.2d 865,
880 (Pa. 2007) (due process claims under Apprendi and Alleyne cannot succeed where
sanctions do not constitute punishment). Preliminarily, we agree with the OAG that Muniz
is of limited precedential value because SVDCs are different from the non-SVP SORNA
registrants in Muniz due to heightened public safety concerns based on the determination
that an SVDC “is in need of commitment for involuntary treatment due to a mental
abnormality . . . or a personality disorder, either of which results in serious difficulty in
controlling sexually violent behavior.” 42 Pa.C.S. §6358(c); see also Butler II, slip op. at
20 (“SVPs are different from the non-SVP SORNA registrants at issue in Muniz due to
heightened public safety concerns based on the determination SVPs have a mental
abnormality or personality disorder that makes the individual likely to engage in predatory
sexually violent offenses”), quoting 42 Pa.C.S. §9799.12.
We also agree with appellee and the OAG that the SORNA Subchapter H
requirements are not relevant to our analysis of whether Act 21 constitutes criminal
punishment. As appellant himself concedes, he is not subject to the SORNA Subchapter
H requirements. See 42 Pa.C.S. §9799.11(c); Appellant’s Brief at 27-28. Moreover,
appellant’s claim that he is forwarding a facial constitutional challenge is waived as he
[J-102-2019] - 21
failed to raise it in the courts below. 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.”). Instead, appellant
argued Act 21 and SORNA were inextricably linked such that the statutes were incapable
of severance. See Appellant’s Brief at 27 (“Before the Trial Court, [appellant] had argued
that SORNA and Act 21 were inextricably linked together, forming a non-severable,
integrated framework.”). In any event, appellant’s facial challenge necessarily fails
because he has failed to prove a “substantial number of the challenged statute’s potential
applications are unconstitutional.” Clifton, 969 A.2d at 1223 n.36 (internal citation and
quotation omitted).
First, the SORNA Subchapter H requirements relating to registration and
notification are identical to corresponding portions of SORNA’s registration, notification
and counseling (RNC) requirements for SVPs. We recently determined these RNC
requirements are non-punitive. See Butler II, slip op. at 30. Additionally, even if they
were punitive, the overwhelming majority of situations where Act 21 applies do not involve
the SORNA Subchapter H requirements. DHS’s Brief at Appendix A (only eight of 72
individuals subject to Act 21 were adjudicated delinquent in 2012 or later and were thus
potentially subject to SORNA Subchapter H requirements). Accordingly, the SORNA
Subchapter H requirements are not relevant to our analysis of whether Act 21 constitutes
criminal punishment.
With the foregoing in mind, we must conduct an examination of Act 21 using the
two-part inquiry employed in Muniz:
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. 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. We recognize only the clearest
proof may establish that a law is punitive in effect. Furthermore, in
[J-102-2019] - 22
determining whether a statute is civil or punitive, we must examine the law’s
entire statutory scheme.
Muniz, 164 A.3d at 1208 (internal citations and quotations omitted). See also Butler II,
slip op. at 20-21 (applying two-part test to determine whether RNC requirements were
punitive in intent or effect).
A. Intent of the General Assembly
The parties agree the General Assembly’s stated intention in enacting Act 21 was
nonpunitive. See Appellant’s Brief at 30 (recognizing Act 21’s “expressed intent” is non-
punitive); Appellee’s Brief at 12-13 (“sole objective of Act 21 is ensuring that young people
receive necessary treatment”); OAG’s Brief at 46 (Court must determine whether Act 21
is punitive in effect despite nonpunitive legislative intent). Following a review of the
statute, we reach the same conclusion.
Analyzing the General Assembly’s purpose in enacting a particular statute “is a
question of statutory construction and we must consider the statute’s text and its structure
to determine the legislative objective. Furthermore, considerable deference must be
afforded to the intent as the legislature has stated it.” Muniz, 164 A.3d at 1209 (internal
citations, quotations, and brackets omitted). The plain language of Section 6401 confirms
Act 21 “establishes rights and procedures for the civil commitment of [SVDCs] who, due
to a mental abnormality or personality disorder, have serious difficulty in controlling
sexually violent behavior and thereby pose a danger to the public and further provides for
additional periods of commitment for involuntary treatment for said persons.” 42 Pa.C.S.
§6401. Accordingly, we have little difficulty concluding the General Assembly’s intent with
regard to Act 21 was not to punish SVDCs, but to provide procedures for their civil
commitment and thereby promote public safety.
B. Mendoza-Martinez Factors
[J-102-2019] - 23
We now consider the Mendoza-Martinez factors to determine whether the
procedures and restrictions set forth in Act 21 are sufficiently punitive in effect to
overcome the General Assembly’s stated nonpunitive purpose. Williams II, 832 A.2d at
971.
i. Is there an affirmative disability or restraint?
Inpatient treatment under Act 21 naturally places an affirmative disability or
restraint upon SVDCs as they are required to reside at Torrance State Hospital until they
are able to demonstrate they no longer have difficulty controlling sexually violent behavior
in the inpatient setting. See 42 Pa.C.S. §6404(b)(2); see also Hendricks, 521 U.S. at 363
(civil commitment involves affirmative restraint). The outpatient treatment requirements
of Act 21 can also involve affirmative disabilities; the court ordering outpatient treatment
may impose conditions and restrictions regarding where an SVDC may reside and visit,
and whom an SVDC may contact. 42 Pa.C.S. §6404.2(a). The outpatient treatment
requirements may be more onerous than the registration requirements discussed in both
Williams II and Muniz because, unlike in those cases, SVDCs do not “remain ‘free to live
where they choose [and] come and go as they please[.]’” Williams II, 832 A.2d at 973,
quoting Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir. 2000). Although this factor
weighs in favor of finding Act 21 punitive, we are cognizant “that merely placing affirmative
disabilities or restraints on [SVDCs] ‘does not inexorably lead to the conclusion that the
government has imposed punishment . . . [as t]he State may take measures to restrict the
freedom of the dangerously mentally ill[, which] is a legitimate nonpunitive governmental
objective and has been historically so regarded.’” Butler II, slip op. at 23-24, quoting
Hendricks, 521 U.S. at 363 (internal citations and quotations omitted).
ii. Are the restrictions the kind that have been historically regarded as a
punishment?
[J-102-2019] - 24
As stated above, restricting the freedom of the dangerously mentally ill has been
historically regarded as nonpunitive. Hendricks, 521 U.S. at 363. When viewed in the
context of Act 21, we conclude this general principle applies to both inpatient treatment
and the restrictions in Section 6404.2(a) that may be placed upon SVDCs who have been
transferred to outpatient treatment. Moreover, our finding in Muniz that SORNA
registration is akin to probation is not applicable to the outpatient treatment requirements
at issue here. In Muniz we recognized the registration flowed from a criminal conviction,
required periodic meetings with law enforcement, and entailed potential criminal
prosecution for failure to comply. 164 A.3d at 1211-13. Here, SVDC designations result
from a finding that the individual possesses a mental abnormality or personality disorder,
which flows not from a conviction, but from an assessment by the Board. 42 Pa.C.S.
§6358. Further, outpatient SVDCs meet with treatment providers rather than law
enforcement and violation of their treatment plans results in a return to inpatient treatment
rather than criminal consequences. 42 Pa.C.S §6404.2. Lastly, outpatient treatment,
which is provided to SVDCs through a treatment plan developed by DHS and the Board
and approved by the court, see 42 Pa.C.S. §§6404(c), 6404.1, has never been historically
regarded as punishment. See Williams II, 832 A.2d at 977 (“counseling does not serve
punitive ends notwithstanding its use as a condition of probation or parole” and
“counseling, by its very nature, is rehabilitative”). We therefore conclude this factor
weighs in favor of finding Act 21 nonpunitive.
iii. Are the restrictions triggered only on a finding of scienter?
Our analysis of this factor directly aligns with our analysis in Butler II in which we
stated:
Our analysis of this factor in the present case is necessarily distinguishable
from Muniz. In Muniz, we held the question of scienter made little difference
because past criminal conduct is a necessary beginning point for all
registration statutes such as SORNA. By comparison, although a criminal
[J-102-2019] - 25
conviction is also the necessary beginning point for the SVP determination
process, the imposition of the RNC requirements is not based upon criminal
conduct at all. Instead, the “‘determination is made based on a mental
abnormality or personality disorder rather than one’s criminal intent.’”
Williams II, 832 A.2d at 978, quoting Hendricks, 521 U.S. at 362 (internal
quotations omitted). Accordingly, the RNC requirements are not triggered
on the basis of a finding of scienter and this factor thus weighs in favor of
finding the requirements are nonpunitive.
Butler II, slip op. at 26-27. In the same way the RNC requirements are imposed upon
SVPs, Act 21 applies to SVDCs, not based on proof of criminal intent, but on a
determination that the individual has a mental abnormality or personality disorder. 42
Pa.C.S. §6403(d). Furthermore, only a juvenile adjudication is required for Act 21 to
apply, 42 Pa.C.S. §6403(a)(1), and a juvenile adjudication “is not a conviction of [a]
crime[.]” 42 Pa.C.S. §6354(a). As criminal conduct is not the trigger for Act 21 to apply,
and as it applies only after a determination that an individual has a mental abnormality or
personality disorder, this factor weighs in favor of finding Act 21 nonpunitive.
iv. Are the traditional aims of punishment — retribution and deterrence —
promoted?
Although we recognize deterrence might be a natural consequence of lifetime
inpatient or outpatient treatment, we are not persuaded Act 21 is intended to promote
deterrence. We are cognizant that individuals “who cannot control their behavior due to
a mental abnormality or personality disorder, are unlikely to be deterred from re-offending
even by threats of confinement.” Butler II, slip op. at 27, citing Williams II, 832 A.2d at
978 (internal citations omitted). Similarly, as DHS has represented that SVDCs are not
subject to strategies that can be construed as punishment, and appellant does not dispute
this representation, “it is difficult to conclude that persons confined under [Act 21] are
being punished.” Hendricks, 521 U.S. at 363 (internal quotation marks omitted). Act 21
does not apply to SVDCs based upon criminal conduct but upon a finding of a mental
abnormality or personality disorder, 42 Pa.C.S. §6403(d), and further, no criminal
[J-102-2019] - 26
conviction is required at all but only a juvenile adjudication. 42 Pa.C.S. §6403(a)(1); 42
Pa.C.S. §6354(a) (juvenile adjudication is not criminal conviction). See also Butler II, slip
op. at 27 (distinguishing Muniz because RNC requirements were not imposed based on
criminal conviction but on subsequent finding of mental abnormality or personality
disorder). As such, we conclude Act 21 promotes neither deterrence nor retribution,
which “affix[es] culpability for prior criminal conduct[.]” Muniz, 164 A.3d at 1215 (internal
quotation and citation omitted). Therefore, we find this factor weighs in favor of finding
Act 21 nonpunitive.
v. Does the statute apply to criminal conduct?
In Butler II we stated:
Our analysis of this factor also significantly differs from our analysis in
Muniz, where we concluded it held little weight. Again, although a criminal
conviction is a necessary starting point for the SVP determination process,
the RNC requirements are “not applied to conduct at all, but to an
individual’s status as suffering from a serious psychological defect[,]”
Williams II, 832 A.2d at 978, such that “the individual [is] likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S. §9799.12. We conclude
this factor weighs in favor of finding the RNC requirements to be
nonpunitive.
Butler II, slip op. at 28 (brackets in original). Likewise, Act 21 does not apply to conduct,
but to an SVDC’s status as having “a mental abnormality or personality disorder which
results in serious difficulty in controlling sexually violent behavior that makes the person
likely to engage in an act of sexual violence[.]” 42 Pa.C.S. §6403(d). Moreover, as stated
above, the starting point for the SVDC determination process is a juvenile adjudication,
42 Pa.C.S. §6403(a), which “is not a conviction of [a] crime[.]” 42 Pa.C.S. §6354(a).
Accordingly, this factor weighs in favor of finding Act 21 nonpunitive.
vi. Is the statute rationally related to an alternate nonpunitive purpose?
There is no dispute regarding this factor, which “is a most significant factor in our
determination that the statute’s effects are not punitive.” Williams II, 832 A.2d at 979
[J-102-2019] - 27
(internal citation, quotation, and brackets omitted). Appellant concedes Act 21 is
“rationally related to a purpose other than punishment and, therefore, this factor weighs
against finding [Act 21] to be punitive.” Appellant’s Brief at 41. Indeed, the non-punitive
purposes of Act 21 are clear: protecting the public from SVDCs “who, due to mental
abnormality or personality disorder, have serious difficulty in controlling sexually violent
behavior[;]” and to provide “for involuntary treatment for said persons.” 42 Pa.C.S. §6401.
The Act 21 restrictions promote these express legislative goals by committing SVDCs to
inpatient treatment away from the public until they no longer have difficulty controlling
sexually violent behavior and continuing to treat SVDCs in an outpatient setting, which is
“consistent with the protection of the public safety and appropriate control, care and
treatment of the [SVDC].” 42 Pa.C.S §6404(b)(2). As such, this factor weighs in favor of
finding Act 21 nonpunitive.
vii. Do the restrictions appear excessive in relation to the alternative non-punitive
purpose?
We first recognize the concerns regarding excessiveness raised in Muniz and
Williams II are not relevant here. Muniz, 164 A.3d at 1218 (raising concerns regarding
SORNA’s over-inclusive nature); Williams II, 832 A.2d at 982-83 (raising concerns
regarding lack of judicial review or removal mechanism). See also Butler II, slip op. at
29-30 (finding over-inclusiveness and lack of removal mechanism concerns are not
relevant to excessiveness analysis). Act 21 is not over-inclusive as it applies only to
individuals who: (1) have been adjudicated delinquent for a serious act of sexual violence;
(2) were committed to an institution and remain in such institution upon attaining age 20
as a result of their adjudication for the act of sexual violence; and (3) are in need of
involuntary treatment due to a mental abnormality or personality disorder resulting in
serious difficulty controlling sexually violent behavior. 42 Pa.C.S. §6403(a). Furthermore,
Act 21 provides for an annual review to determine whether inpatient SVDCs should be
[J-102-2019] - 28
moved to outpatient treatment, 42 Pa.C.S §6404(b)(2), and whether outpatient SVDCs
should be discharged from the program entirely. 42 Pa.C.S. §6404.2(f)(2).
Appellant premises his argument regarding this factor on a claim the 2011
amendments are excessive because the onerous restrictions placed upon outpatient
SVDCs vastly exceed any public safety concerns regarding individuals who have already
been found to no longer have serious difficulty controlling their sexual behavior.
Appellant’s Brief at 41. Appellant’s argument is based on a clearly erroneous reading of
Act 21. In fact, Act 21 does not release SVDCs to outpatient treatment based on a general
finding that they no longer have serious difficulty controlling their sexual behavior, but
instead upon a finding “the person no longer has serious difficulty in controlling sexually
violent behavior in an inpatient setting[.]” 42 Pa.C.S. §6404(c)(1) (emphasis added).
The 2011 amendments act as a safeguard to ensure SVDCs are able to control their
sexual behavior in public settings before being discharged from the program; if SVDCs
are “having serious difficulty controlling sexually violent behavior in an outpatient
setting[,]” they are returned to inpatient treatment. 42 Pa.C.S. §6404.2(e) (emphasis
added). Rather than being excessive, the 2011 amendments provide a necessary second
level of public protection and SVDC treatment. Accordingly, we conclude the Act 21
restrictions are not excessive in relation to the statute’s primary purposes of protecting
the public and providing treatment to SVDCs, and this factor weighs in favor of finding Act
21 nonpunitive.
viii. Balancing of Factors
Despite the fact that Act 21 imposes obvious affirmative disabilities or restraints
upon SVDCs, our review of the remaining Mendoza-Martinez factors leads to the
conclusion the statutory scheme is not punitive in intent or effect. Act 21 provides
treatment to SVDCs rather than imposing restrictions that were historically considered
[J-102-2019] - 29
punishment, and does not promote the typically punitive goals of deterrence and
retribution. Furthermore, Act 21 protects the public from SVDCs, who have never been
convicted of a crime, but are subject to the statutory restrictions because they are
dangerously mentally ill. Lastly, Act 21, including the 2011 amendments, cannot be said
to be excessive in light of the danger posed to the public by SVDCs. Based on all of the
above, we conclude Act 21 does not constitute criminal punishment.
IV. Conclusion
Our finding that the challenged provisions of Act 21 do not constitute criminal
punishment dictates our conclusion that appellant’s present claims pursuant to Muniz and
Butler I fail; both appellant’s ex post facto claims and his Apprendi/Alleyne due process
claims require a finding that the statutory regime at issue constitutes criminal punishment.
See Muniz, 164 A.3d at 1208 (ex post facto claims depend upon finding sanctions
constitute criminal punishment); Lee, 935 A.2d at 880 (due process claims under
Apprendi and Alleyne cannot succeed where sanctions do not constitute punishment).
Accordingly, we affirm the order of the Superior Court.14
Chief Justice Saylor and Justices Baer, Todd, Donohue, Wecht and Mundy join
this opinion.
14 We need not reach the OAG’s additional argument based on Oregon v. Ice that
Apprendi and Alleyne do not apply to SVDC determinations under Act 21. OAG’s Brief
at 72-83.
[J-102-2019] - 30
In re: H.R., a minor
Combined Opinion