Commonwealth v. Perez

CONCURRING OPINION BY

DONOHUE, J.:

I join the Majority’s determination that the appellant, Miguel A. Perez (“Perez”), has not shown by the “clearest proof,” as mandated in Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), that the effects of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, are sufficiently punitive to overcome the General Assembly’s preferred categorization. While I concur in the decision to affirm the retroactive application of SORNA to Perez, I write to provide my analysis of the two-prong test established in Smith. I preface my analysis by emphasizing that I do not question the legislature’s wisdom in enacting SORNA or the breadth of its provisions. Our focus is the timing of the application of its provisions. Specifically, the task before this Court is to decide whether the statute crosses the line from a permissibly retroactive non-punitive regulatory scheme, into an imper-missibly punitive ex post facto law.

As noted by the Majority, the first step of the Smith test is to ascertain the legislature’s subjective intent. Perez concedes that the first prong of the Smith test is satisfied, citing to the General Assembly’s declaration of policy in Section 9799.11(b)(2), which states that the statute “shall not be construed as punitive.” See Appellant’s Brief at 9 n. 3. Thus, for the purpose of this appeal, it cannot be interpreted otherwise.

I write solely to express my concern with the concession. The Pennsylvania Supreme Court accepted, at face value, the intention stated by the legislature in the policy declarations of two previous sex offender registration statutes (“Megan’s *761Law I and Megan’s Law II”).1 See Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 619 (1999); Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 971-72 (2003) (finding a policy statement identical to the one at issue in Gaffney to be a sufficient basis to determine legislative intent). However, the policy declaration in SORNA is not identical to the one in Megan’s Law I and II. The policy declaration for both Megan’s Law I and II stated:

It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive.

Williams, 832 A.2d at 969 (emphasis added). SORNA’s declaration of policy states, in pertinent part:

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. 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.

§ 9799.11(b)(1), (2) (emphasis added).

The notable difference between the two declarations is that the language in Megan’s Law I and II specifically states that it is the intention of the legislature to release information on sexually violent predators; whereas SORNA’s policy declaration intends the release of information for all sexual offenders.

Megan’s Law I and II made a clear distinction between sexual offenders and sexually violent predators in terms of registration and notification requirements. See 42 Pa.C.S.A. §§ 9793-9795.5, repealed by 42 Pa.C.S.A. § 9799.41. The legislature determined that the high risk of recidivism for sexually violent predators warranted the stringent registration requirements and the community notification procedures. 42 Pa.C.S.A. § 9791(a)(2), repealed by 42 Pa.C.S.A. § 9799.41. Sexually violent predators are individuals convicted of a sexual offense that have a “mental abnormality or personality disorder,” as determined by the court, which makes them “likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12. In contrast, sexual offenders are simply defined as “individual[s] required to register under [SORNA].” Id.

Over time the registration distinctions between sexual offenders and sexually vio*762lent predators have become less apparent. Individuals convicted of a Tier III offense under SORNA are subject to the same lifetime registration and quarterly in-person reporting requirements as sexually violent predators. See 42 Pa.C.S.A. § 9799.15(a), (e), (f). The public internet website authorized by SORNA provides an electronic notification option similar to the community notification procedure used to inform citizens when a sexually violent predator moves into their neighborhood. See 42 Pa.C.S.A. §§ 9799.27, 9799.28. One notable distinction between Tier III offenders and sexually violent predators in SORNA is the mandatory monthly counseling sessions sexually violent predators must attend. See 42 Pa.C.S.A. § 9799.36(a). Furthermore, as a Tier II offender, the registration period for Perez has more than doubled in length from 10 years to 25. 42 Pa.C.S.A. § 9799.15(a)(2); see also Appellant’s Brief at 5. While it is true that public safety is a paramount governmental interest, the progressively rigid conditions imposed upon sexual offenders necessarily labels a broad number of people as high-risk recidivists without any means of proving otherwise.

Additionally, I hesitate to conclude that the first prong of the Smith test is satisfied without further inquiry because there is an absence of analysis in Pennsylvania case law as to both the placement of the registration requirements within the statute and the enforcement procedures mandated by the current and previous sex offender registration statutes. While we ordinarily defer to the legislature’s stated intent, determining whether a statutory scheme is civil or criminal necessitates an analysis under general principles of statutory construction. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). As the United States Supreme Court stated in Smith, “[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent.” Smith, 538 U.S. at 94, 123 S.Ct. 1140.

Unlike the Alaska statute at issue in Smith, all of SORNA’s notification, registration, and procedural provisions are codified in one section of the State’s “Judiciary and Judicial Procedure Code,” specifically under Chapter 97, titled “Sentencing.” See 42 Pa.C.S.A. § 9701 et seq. This specific chapter of the Judiciary and Judicial Procedure Code contains the mandatory minimum and maximum punitive sentences for all major crimes in Pennsylvania. See 42 Pa.C.S.A. §§ 9711-9720.6. Furthermore, suggested sentencing alternatives (such as probation, intermediate punishment, and fines) are likewise codified in the same chapter. See 42 Pa.C.S.A. §§ 9721-9730.1.

In addition to the punitive nature of the provisions surrounding SORNA in the Code, the enforcement procedures “stand in the way of asserting that the statute’s intended character is clearly civil.” Smith, 538 U.S. at 108, 123 S.Ct. 1140 (Souter, J., concurring). The legislature made it a mandatory condition that the registration and notification requirements of SORNA be explained to offenders at sentencing, and a signed acceptance of notification must be obtained if possible. 42 Pa.C.S.A. § 9799.23(a)(5). The Supreme Court stated in Smith that “[t]he policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences themselves punitive.” Smith, 538 U.S. at 95-96, 123 S.Ct. 1140. However, the statute at issue in Smith set forth no procedural mandates for the implementation of the registration requirements and vested authority to promulgate regulations with the Alaska Department of Public Safety, an agency *763charged with enforcement of both criminal and civil regulatory laws. Id. at 96, 123 S.Ct. 1140. In contrast, SORNA vests the authority to create, maintain, and enforce its registration and notification requirements in the Pennsylvania State Police, the traditional enforcer of criminal laws. See 42 Pa.C.S.A. §§ 9799.16(a), 9799.22, 9799.32. While I give significant weight to the legislature’s declaration of policy and agree with the Majority that the intended characterization of the statute is non-punitive, I give conclusive weight to that characterization only because we have not been asked by Perez to do otherwise. Although a definitive analysis must be left to another day, I note that there is considerable evidence pointing to the opposite conclusion.

The second step in the Smith analysis is to determine “whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (internal quotation marks and citations omitted). As the Majority aptly noted, the correct way to analyze whether the purpose and effect of a statute is punitive in nature is by using the seven factors established by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). These factors are “neither exhaustive nor disposi-tive, but are useful guideposts.” Smith, 538 U.S. at 97, 123 S.Ct. 1140 (internal quotation marks and citations omitted).

I agree with the Majority that the first Kennedy factor weighs in favor of finding SORNA punitive; the statute clearly places an affirmative restraint on registrants. Similarly, I agree that factors three and five, which involve the requirement of scienter and whether the behavior to which the statute applies is already a crime, are given “little weight.” Maj. Op. at 755, 756. However, it must be emphasized that both factors go towards finding SORNA non-punitive.

I respectfully suggest that factors two and four of the Kennedy test require deeper analysis than that provided by the Majority. Factor two of the test looks to whether the registration requirement has historically been regarded as punishment. Here, the Majority fails to consider how mandatory in-person reporting impacts this prong of the analysis. In Smith, the Supreme Court stated that the argument that Alaska’s registration system was parallel to probation or supervised release “has some force.” Smith, 538 U.S. at 101, 123 S.Ct. 1140. The Court went on to reject the comparison, largely due to the absence of any mandatory conditions imposed on convicted sex offenders by the Alaska statute. Id. In contrast, the mandatory in-person verification requirement in Section 9799.15(e) not only creates an affirmative restraint upon Perez, requiring him to appear at a designated facility a minimum of 50 times over the next 25 years as a Tier II offender, but also greatly resembles the periodic meetings with probation officers imposed on probationers. The Majority did not discuss the impact that these differences have on the analysis of the second factor, and instead relied on the decision in Smith to determine that this factor goes towards finding SORNA non-punitive. Maj. Op. at 753-55. But because SORNA differs significantly from the statute at issue in Smith, these disparities must be considered.

In Commonwealth v. Williams, the Pennsylvania Supreme Court found that probation has historically been considered a traditional form of punishment. Williams, 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 *764prison time. 42 Pa.C.S.A. § 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.A. § 9754(c). Probationers are also subject to incarceration for a violation of any condition of their probation. 42 Pa. C.S.A. § 9771.

Like the conditions imposed on probationers, registrants under SORNA must notify the state police of a change in residency or employment. 42 Pa.C.S.A. § 9799.15(g). Offenders also face incarceration for any non-compliance with the registration requirements. 42 Pa.C.S.A. § 9799.22(a). Furthermore, SORNA requires registrants who do not have a fixed work place to provide “general travel routes and general areas where the individual works” in order to be in compliance. 42 Pa.C.S.A. § 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.A. §§ 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 Kennedy test leans towards a finding that SORNA is punitive.

The fourth Kennedy factor assesses whether SORNA has the effect of promoting deterrence and retribution. I agree with the Majority that the legislative findings indicate the statute has an intrinsic deterrent purpose, and that this does not immediately turn a valid regulatory scheme into a punishment. However, I find that the retributive effects of the statute extend farther than the mere increase in the length of registration.

Megan’s Law I, the first sex offender registration statute enacted in Pennsylvania, required registrants to verify only their current address for a specified number of years, and did not provide for the public dissemination of that information. See Gaffney, 733 A.2d at 621. Subsequent versions of the statute, including Megan’s Law II and SORNA, have substantially broadened not only the amount of information that must be reported, but the way that the information is distributed. See Williams, 832 A.2d at 967, 969; 42 Pa. C.S.A. §§ 9799.16, 9799.28.

In Williams, the sex offender registration statute at issue did not explicitly give the Pennsylvania State Police the means to disseminate the information on the internet. Williams, 832 A.2d at 980. The Pennsylvania Supreme Court found that the language of the statute authorized only “electronic transmission” to individuals who requested the information on registered sex offenders. Id. The Court held that the “community notification provisions of the statute [were] fully explainable without resort[ing] to theories of retribution and deterrence.” Id. at 981 (emphasis added). In contrast, SORNA expressly authorizes the use of a “public internet website”2 for the purpose of disseminating information on Pennsylvania’s registered *765sex offenders. 42 Pa.C.S.A. § 9799.28. A search under the “Search Offenders” tab of the official website shows registrants’ photographs posted with their current address, tier assignment, and whether they were adjudicated a sexually violent predator. The use of a public internet website is far from the “community notification” by electronic transmission approved by the Pennsylvania Supreme Court in Williams; SORNA authorizes unfettered worldwide access to information on registered sex offenders.

The evolution of sex offender registration statutes in Pennsylvania mirrors the development of similar statutes in our neighboring state of Ohio. See State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998); State v. Ferguson, 120 Ohio St.3d 7, 896 N.E.2d 110 (2008); State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011). The Ohio Supreme Court recently held the latest sex offender statute punitive in purpose and effect, noting that the amendments to the statute over time made it increasingly more retributive. See Williams, 952 N.E.2d at 1112. Although the Ohio Supreme Court analyzed their version of SORNA under a state constitutional claim, I find its analysis of the increasingly retributive nature of the Ohio version of SORNA instructive. Like Pennsylvania’s SORNA, the Ohio statute increased the length of registration under a tier system; was codified under the Ohio criminal code; contained a mandatory in-person reporting requirement; and allowed for more information to be included on the internet database for community notification. Id. at 1111-13. Furthermore, in discussing the accessibility of information on the internet database, the Ohio Supreme Court stated, “[t]he stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment ... [we] do not believe that we can continue to label these proceedings as civil in nature.” Id. at 1112.

The main purpose of SORNA, like the statute at issue in Commonwealth v. Williams, is to provide a mechanism for the citizens of Pennsylvania to inform themselves of potential threats in their neighborhoods. 42 Pa.C.S.A. § 9799.11(a)(8). However, providing for the limitless access to registrants’ information by any individual, whether a citizen of Pennsylvania or not, lends credence to the argument that there is an alternative retributive purpose behind the reporting requirements. Widespread dissemination of registrants’ information, including the make and model of their motor vehicle, “bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community.” Smith, 538 U.S. at 109, 123 S.Ct. 1140 (Souter, J., concurring).

In Smith, a majority of the United States Supreme Court rejected the argument that internet notification websites were akin to colonial shaming punishments. Smith, 538 U.S. at 98-99, 123 S.Ct. 1140. The Court stated that historical shaming punishments “held the person up before his fellow citizens for face-to-face shaming,” and that humiliation is a collateral consequence of valid notification procedures. Id. 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.3 Yesterday’s face-to-face *766shaming 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. Thus, I conclude that the fourth Kennedy factor weighs in favor of finding SORNA punitive.

Factors six and seven of the Kennedy test are interrelated. They look to whether the statute is rationally related to an alternative purpose and if its provisions are excessive in relation to that alternative purpose. Perez virtually concedes both of these factors, stating that the statute’s deterrent effect is “rationally related to the Commonwealth’s compelling interest in seeking to prevent crimes of a sexual nature, particularly those committed against children.” Appellant’s Brief at 21. Similarly, Perez only argues that SORNA is excessive in relation to its alternative purpose due to the absence of any provision for registrants to prove rehabilitation. Id. at 22. The Supreme Court wholly rejected this argument in Smith, finding that the ex post facto clause “does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith, 538 U.S. at 103, 123 S.Ct. 1140. Because factors six and seven have essentially been conceded by Perez, I agree with the Majority that these factors weigh in favor of finding SORNA non-punitive.

Recognizing that no one factor is dispos-itive, the final step in the two-prong Smith test is to balance all of the Kennedy factors to determine the purpose and effect of the statute. As discussed, I conclude that factors one and four support the conclusion that SORNA is punitive. The analysis under factor two of the Kennedy test discloses such significant parallels between the rigid SORNA in-person registration requirements and probation that, in my view, it requires a conclusion that factor two weighs in favor of finding SORNA punitive. Additionally, I agree with the Majority that factors three, five, six and seven weigh towards finding SORNA non-punitive, although factors three and five are given little consideration.

The Supreme Court has established a high threshold of the “clearest proof’ to overcome the legislature’s preferred classification of a statute as non-punitive. Smith, 538 U.S. at 92, 123 S.Ct. 1140. This, to me, is the closest of cases. Had Perez not conceded that the first prong of the Smith test had been met, my decision in his case may have been different. Moreover, a challenge under the Pennsylvania State Constitution may have yielded a different result. After duly weighing all of the factors, my concurrence in the Majority’s decision that the retroactive application of SORNA does not violate the ex post facto clause of the United States Constitution is driven by the stringent presumption of constitutionality normally given to a State’s law. Smith, 538 U.S. at 110, 123 S.Ct. 1140. In my view, given the *767arguments presented, this challenge to the ex -post facto application of SORNA suggests that SORNA’s constitutionality is close to, but not at, the tipping point. Thus, I respectfully concur in the Majority’s decision.

. 42 Pa.C.S.A. §§ 9791-9799, amended by The Registration of Sexual Offenders Act of May 10, 2000, P.L. 74, No. 18, § 3; 42 Pa.C.S.A. §§ 9791-9799.9, expired pursuant to 42 Pa. C.S.A. § 9799.41.

. See Pennsylvania State Police Megan’s Law Website, http://www.pameganslaw.state.pa.us (last visited Jun. 16, 2014).

. See Computer and Internet Access in the United States: 2012, available at https://www. census.gov/hhes/computer/publications/2012. html (last visited Jun. 11, 2014). Worldwide, *766an estimated three billion individuals have internet access. See International Telecommunications Union, The World in 2014: ICT Facts and Figures, available at http://www.itu. int/en/ITU-D/Statistics/Pages/facts/default. aspx (last visited Jun. 20, 2014).