Dissemination of sex offenders’ information over the Internet is unconstitutional: a bold decision that’s likely to be short-lived.

Comm. v. Moore, 2019 PA Super 320 (Oct. 23, 2019)

Out of Mercer.  The Superior Court made a bold ruling in the ever-evolving jurisprudence of sex-offender registration.  The Court held “that the Internet dissemination provision of SORNA II violates the federal prohibition against ex post facto laws.”  Throughout its opinion, the Superior Court held that it was either relying on or bound by the Muniz decision, which the Pennsylvania Supreme Court decided two years ago to hold that SORNA was punitive in effect for purposes of an ex-post-facto analysis.  More on that in a minute.

Needless to say, in rendering its decision, the Superior Court reasoned to its conclusion in part this way:

Appellant asserts that [the Section on Internet dissemination] appears excessive in relation to its remedial purpose. [Citation omitted.] Notably, Appellant contrasts the General Assembly’s intent to disseminate relevant information to individuals regarding sexual offenders “who are about to be released from custody and will live in or near their neighborhood” with its directive to the PSP to develop and maintain an openly accessible Internet website that publishes otherwise non-public information globally. [Citation omitted.]

By posting information about offenders on the Internet, the information would be readily accessible to parents and private entities, “enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk.” 42 Pa.C.S. 9799.63(a). While we share the legislature’s concern about the importance of providing adequate information about sex offenders to individuals who may have contact with the offender, the effect of disseminating this information through the Internet means that individuals who do not “live in or near” the offender’s neighborhood will have access to information about the offender.

In fact, the statutory language mandating the creation of the PSP website demonstrates that the legislature intended that as many people as possible would have access to the offender’s information. Section 9799.63(b)(1) requires the Commissioner of the PSP to develop a publicly accessible website “so that the public, without limitation, [can] obtain access to the information … to view an individual record or the records of all sexually violent predators, lifetime registrants and other offenders who are registered with the Pennsylvania State Police.” Id. (emphasis added).

Because the dissemination of the sex offender’s registration information is not limited to those individuals who could benefit from the information, but rather is expanded to any person who has Internet access, the open and readily accessible website is incongruous with the targeted purpose of protecting a community or neighborhood. SORNA II does not limit access to offender information within a certain geographical area, a community, or neighborhood. Any user of the website can obtain information about any offender regardless of the user’s geographical proximity to the offender. Thus, if a person is not in proximity to an offender, the user’s use of the information is beyond the legislative purpose of providing the information to protect individuals who might encounter the offender.

In contrast, when dealing with a Sexual Violent Predator (SVP), the legislature has crafted a targeted method requiring law enforcement to send a written notification with information about the SVP to those individuals who might encounter the SVP. [Citation omitted.] In particular, law enforcement must notify neighbors, child and youth agencies, school superintendents, day care centers and colleges and universities that a sexually violent offender is living in close proximity to the individuals or entity. [ ] This is a much more tailored and effective means of achieving the legislative goals of SORNA II.

Similarly, Megan’s Law II limited dissemination of the offender’s information to those individuals who could possibly have contact with the offender and, thus, had a use for the information. Megan’s Law directed law enforcement to disseminate information to those individuals who might come into contact with the offender, such as an offender’s neighbors, the children and youth services director within the offender’s county of residence, school officials within the offender’s area school district, and licensed child care centers located in the offenders municipality. 42 Pa.C.S. § 9798(b) (effective Jan. 24, 2005 to Feb. 20, 2012).

For this reason, in light of the fact that SORNA II disseminates registration information about sex offenders to those individuals who do not need the information to protect themselves from the sex offender, we find that Section 9799.63 is excessive when compared to the alternative purpose of SORNA II to protect individuals from sex offenders who might recidivate. We conclude that the effect of this factor weighs towards finding Section 9799.63 punitive.

Thus, the Superior Court directed that the Pennsylvania State Police remove Moore’s entry from the Megan’s Law website– a decision that will, of course, open the flood gates from similarly situated offenders.

Personal note: While I personally applaud this bold holding by the Superior Court panel, the holding is bound to reach the Pennsylvania Supreme Court, and potentially the U.S. Supreme Court (if not reversed before then), because of the reliance on the federal ex-post-facto clause to reach this holding.  

The Superior Court’s holding was not premised upon our state constitution.  While the Superior Court repeatedly said that it’s holding was compelled by the Pennsylvania Supreme Court’s Muniz decision, I believe that’s wrong.  

Muniz was a plurality opinion where only three of the six participating justices held that SORNA violates the federal ex-post-facto clause and the state ex-post-facto clause, which these three justices held provided greater protection than the federal provision. (Dougherty, Baer, and Donohue).  However, two justices—Wecht and Todd—held that SORNA only violated the Pennsylvania constitution’s ex-post-facto clause, and those justice weren’t inclined to find that the state constitution provides greater protection than its federal counterpart.  Now, that may sound like an implicit admission that these two justices believed that SORNA violated the federal constitution, too, if both ex-post-facto provisions are “coterminous” with one another; however, Justices Wecht and Todd were careful not to join the other three justices’ analysis on federal-law grounds.

Saying that, therefore, the Pennsylvania Supreme Court made no binding pronouncement on what federal law is regarding the ex-post-facto clause in this area. Indeed, it couldn’t anyway as it is powerless to do so since the U.S. Supreme Court is the final authority on questions of federal law.  So, for the Superior Court to insist throughout its opinion that its holding was compelled by Muniz, that’s incorrect.  

It bears repeating: three of six Pennsylvania justices in Muniz said that SORNA violates the federal ex-post-facto clause. And that determination, notably, is at odds with what the U.S. Supreme Court held in a different era, finding that Internet dissemination of offenders’ information was not sufficiently punitive to offend federal ex-post-facto guarantees.  As the Superior Court panel recognized in this case, the U.S. Supreme Court noted that “dissemination via the Internet” of offenders’ information is “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.”  

With that pronouncement from the U.S. Supreme Court—no matter how long ago that pronouncement may have been—this issue of Internet dissemination of sex-offenders’ information and the ex-post-facto clause is accordingly settled as a matter of federal law.  To the extent the Superior Court held otherwise, I’m afraid its holding will be short-lived.  Nonetheless, practitioners should make a pitch that the Internet dissemination provision of SORNA II does, in fact, violate the Pennsylvania constitution in light of Muniz.