                         [J-121B-2016][O.A.J.C. – Dougherty, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 47 MAP 2016
                                              :
                   Appellee                   :   Appeal from the Order of the Superior
                                              :   Court at No. 2169 MDA 2014 dated
              v.                              :   8/7/15 affirming the order of the Court of
                                              :   Common Pleas of Cumberland County,
                                              :   Criminal Division, at No. CP-21-CR-
JOSE M. MUNIZ,                                :   0000903-2006 dated 10/14/14
                                              :
                   Appellant                  :
                                              :   ARGUED: December 6, 2016




                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: July 19, 2017

       I agree with the analysis pertaining to those factors taken from Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554 (1963), that are either of little weight or

indicate that Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”)

is not punitive. As to the other factors, although I recognize the significant burdens on

offenders under SORNA, my reasoning closely tracks that developed in Commonwealth

v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) (“Williams II”), and Smith v. Doe, 538

U.S. 84, 123 S. Ct. 1140 (2003). Accordingly, I respectfully dissent, as I believe that

SORNA does not impose punishment and, thus, does not violate either the federal or

state constitutions’ ex post facto clauses.

       Regarding the first Mendoza-Martinez factor, SORNA may be perceived as

imposing some minimal restraint or disability insofar as it requires offenders to appear in
person to satisfy the reporting provisions. However, this Court has distinguished such

minor impositions from those that effectuate a direct restraint or deprivation on the

activities of the individual in the nature of imprisonment. See Williams II, 574 Pa. at

507, 832 A.2d at 974 (observing that the source cases cited by Mendoza-Martinez

concerned direct deprivations or restraints, rather than ones that operated as secondary

effects (citing Mendoza-Martinez, 372 U.S. at 168 n.22, 83 S. Ct. at 567 n.22)); id.

(characterizing registration as a “potential collateral restraint”).    In comparison, the

monthly counseling sessions at issue in Williams II effectuated a greater restraint,

mandating not only an in-person appearance, but that the offender remain and receive

therapeutic treatment.    Nonetheless, they were not viewed as “so onerous as to

constitute an affirmative disability,” even apart from the notion that this mandate was

intended to rehabilitate sexually violent predators. Id. at 508, 832 A.2d at 974-75. The

Opinion Announcing the Judgment of the Court (“OAJC”) emphasizes that the

counseling requirement was justifiable on rehabilitation grounds, but does not similarly

acknowledge that the purpose behind in-person reporting is to assist the public in

discovering reliable and verifiable information to protect itself from potential recidivists,

see 42 Pa.C.S. §9799.10(5), a goal just as meritorious as rehabilitating an offender.

       Further, the OAJC reasons that the finding by the Smith Court that the Alaska

statute there did not require in-person updates constitutes an “important” distinction,

which in turn led the Supreme Court to conclude, in part, that the statute was not

punitive.   OAJC, slip op. at 31.     Critically, the Supreme Court did not premise its

analysis on this observation; rather, it merely corrected an error in the facts relied upon

by the reviewing court. See Smith, 538 U.S. at 101, 123 S. Ct. at 1151. Thus, I would

not find that SORNA imposes the kind of affirmative restraint or disability suggestive of

a punitive effect.


                       [J-121B-2016][O.A.J.C. – Dougherty, J.] - 2
      As to the second factor, assessing whether the sanction has been historically

regarded as punishment, I am unpersuaded by the OAJC’s primary shaming rationale,

i.e., that the “technological environment” has so changed that posting information on the

internet results in a punishment. OAJC, slip op. at 34. Undoubtedly, internet access in

private homes has grown in the years since the Smith decision; however, focusing on

that narrow metric diminishes the central reasoning that the Supreme Court employed in

finding that worldwide internet access to offender registry information did not constitute

punishment, as well as overlooks internet accessibility available at that time in other

places, such as public libraries and workplaces.1 See Smith, 538 U.S. at 104-05, 123

S. Ct. at 1153-54 (observing that the internet data system was “passive,” requiring an

individual to “seek access to the information”); State v. Petersen-Beard, 377 P.3d 1127,

1134 (Kan.) (“Smith did not base its conclusion on some old-fashioned, dial-up

modem/floppy disk notion of the World Wide Web; nor did it consider accessing

offender information on the Internet [as] nothing more than a walk to the courthouse to

thumb through publicly available paper files.    Smith's rationale withstands the more

recent development of a mobile, smartphone Internet.”), cert. denied, __ U.S. __, 137 S.

Ct. 226 (2016); see also Kammerer v. State, 322 P.3d 827, 834-36 (Wyo. 2014). The

Court further highlighted that making the registration system “easily accessible”

comported with concerns pertaining to our highly mobile society. Smith, 538 U.S. at

105, 123 S. Ct. at 1153-54 (citing DONNA D. SCHRAM & CHERYL DARLING MILROY,

1
  Employing the OAJC’s source (via now-Justice Donohue’s concurring opinion in
Commonwealth v. Perez, 97 A.3d 747, 765-66 (Pa. Super. 2014) (Donohue, J.,
concurring)), the United States Census Bureau indicates that over 61 million American
households, or about 54%, had internet access at the time Smith was decided. See
UNITED STATES CENSUS BUREAU, COMPUTER AND INTERNET USE IN THE UNITED STATES:
2003, at 2 (2005) https://www.census.gov/prod/2005pubs/p23-208.pdf.         From my
perspective, the increase to approximately 75% of households is not materially
significant in categorizing the registration requirements as punishment.


                      [J-121B-2016][O.A.J.C. – Dougherty, J.] - 3
COMMUNITY NOTIFICATION: A STUDY          OF   OFFENDER CHARACTERISTICS   AND   RECIDIVISM 13

(1995) (explaining that over one-third of recidivist sex offenses in the State of

Washington occurred in jurisdictions different from where the previous offense took

place)).

        Regarding the comparison to probation conditions that the OAJC proffers, see

OAJC, slip op. at 35-36 (quoting Perez, 97 A.3d at 763-64 (Donohue, J., concurring)),

registration and reporting are the only required conditions imposed on registrants, albeit

ones that may be viewed as onerous. See 42 Pa.C.S. §§9799.15, 9799.19, 9799.23(b),

9799.25.         This is markedly different in both scope and nature from the litany of

mandated probation provisions, which may include the following:             reporting to an

assigned probation officer; permitting home inspections; dispossessing firearms;

maintaining employment; remaining in Pennsylvania; living in a specified residence or

facility; refraining from visiting certain places; paying restitution and/or other costs;

remaining at home during certain hours; reporting all arrests or citations; receiving

approval to move; testing at random for drugs and alcohol; submitting to fingerprinting,

photographing, and DNA sampling; complying with supervision assessments; yielding to

individual or family counseling, medical or psychiatric treatment, and inpatient

treatment; and acceding to any other special conditions imposed by the court. See,

e.g.,      id.     §9754(c);    County        of   Allegheny,   Adult    Probation    Rules,

https://www.alleghenycourts.us/criminal/adult_probation/rules.aspx.       Thus, I disagree

that SORNA’s requirements materially parallel the wide-ranging restrictions and

oversight that demarcate probation as a historically recognized punishment. To the

degree that there are coextensive aspects, they do not constitute the “clearest proof” of

punishment so as to override the Legislature’s stated non-punitive intent. Smith, 538




                           [J-121B-2016][O.A.J.C. – Dougherty, J.] - 4
U.S. at 92, 123 S. Ct. at 1147 (quoting Hudson v. United States, 522 U.S. 93, 100, 118

S. Ct. 488, 493 (1997)).

       In terms of the scienter factor, I agree that past criminal conduct is “a necessary

beginning point,” OAJC, slip op. at 37 (quoting Smith, 538 U.S. at 105, 123 S. Ct. at

1154), and thus, this factor is of little weight.

       Pertaining to the traditional aims of punishment, I agree with the parties that

SORNA operates in some respect as a deterrent. See, e.g., Brief for Commonwealth at

28-29. As the OAJC acknowledges, however, deterrence alone is an insufficient basis

to find a sanction to be punishment. See OAJC, slip op. at 39 (citing Smith, 538 U.S. at

102, 123 S. Ct. at 1152); John F. Stinneford, Punishment Without Culpability, 102 J.

CRIM. L. & CRIMINOLOGY 653, 679 (2012) (“[W]hen the Supreme Court says that a

statute's purpose is punitive, it really means retributive. . . . [N]either a purpose to deter,

incapacitate, nor to rehabilitate can transform a putatively civil statute into a criminal

one. Only a retributive purpose can.” (footnote omitted)); Hudson v. United States, 522

U.S. 93, 102, 118 S. Ct. 488, 494 (1997) (“We have . . . recognized that all civil

penalties have some deterrent effect.” (citations omitted)).

       As for the OAJC’s retribution analysis, its reliance on Kansas v. Hendricks, 521

U.S. 346, 117 S. Ct. 2072 (1997), appears to directly conflict with the reasoning of the

Court: “The Act's purpose is not retributive because it does not affix culpability for prior

criminal conduct. Instead, such conduct is used solely for evidentiary purposes . . ..” Id.

at 362, 117 S. Ct. at 2082; see also Sandra G. Mayson, Collateral Consequences and

the Preventative State, 91 NOTRE DAME L. REV. 301, 333 (2015) (suggesting that

sanctions based on judgments of culpability should be viewed as punitive, while others

premised on a judgment of risk, such as sex offender registration, should be classified

as collateral non-punishments). Additionally, the Smith Court’s reasoning on this point


                         [J-121B-2016][O.A.J.C. – Dougherty, J.] - 5
is instructive, given that the information disclosed under Alaska’s statute is nearly

identical to that provided by an offender pursuant to SORNA, with the only exception

appearing to be school addresses. Compare Alaska Stat. §12.63.010(b)(1-2), with 42

Pa.C.S. §9799.28(b)(1-8); see also Smith, 538 U.S. at 90, 123 S. Ct. at 1145-46 (listing

the information disclosed via the Alaska statute).        Notably, the Smith Court further

explained that “[a]ny number of government programs might deter crime without

imposing punishment” and “[t]o hold that the mere presence of a deterrent purpose

renders such sanctions ‘criminal’ . . . would severely undermine the Government's ability

to engage in effective regulation.” Smith, 538 U.S. at 102, 123 S. Ct. at 1152 (citations

omitted).

       Additionally, I do not regard registration imposed on predicate offenses lacking

substantial terms of imprisonment as suggestive of punitiveness, since SORNA’s tiered

categories reflect the Legislature’s judgment of the seriousness of the underlying

conviction relative to future dangerousness. See Petersen-Beard, 377 P.3d at 1136

(observing that the differentiation between types of sex offenses in determining the

frequency of in-person reporting, while burdensome, did not indicate a punitive effect);

Smith, 538 U.S. at 102, 123 S. Ct. at 1152 (“The broad categories, . . . and the

corresponding length of the reporting requirement, are reasonably related to the danger

of recidivism, and this is consistent with the regulatory objective.”).

        Moreover, as the OAJC seemingly acknowledges, with one exception (i.e.,

Appellant’s conviction for indecent assault without consent, see 18 Pa.C.S.

§3126(a)(1)), those predicate offenses that implicate only a short prison sentence, or

none at all, or otherwise do not contain a sexual component, are not presently at issue,

since Appellant’s conviction for indecent assault against a minor less than 13 years in

age, see 18 Pa.C.S. §3126(a)(7), requires lifetime registration and quadrennial reporting


                        [J-121B-2016][O.A.J.C. – Dougherty, J.] - 6
as a tier III offender. See OAJC, slip op. at 39 n.20. In this respect, I have significant

reservations with the assertion that “each and every predicate offense is relevant” to

assessing whether SORNA’s reporting requirements for Appellant’s underlying offenses

constitute punishment.2 Id. It seems to me that such an approach is not mandated by

the relevant authority and is in substantial tension with standing jurisprudence.3

       From my perspective, to the extent that the Supreme Court has directed that ex

post facto challenges are to examine a statute “on its face,” see Mendoza-Martinez, 372

U.S. at 169, 83 S. Ct. at 568, that command does not require a reviewing court to

assess every predicate criminal conviction and associated potential sanctions. The

varied registration time periods and reporting frequencies, applicable to the different

tiers, may result in divergent conclusions relative to the Mendoza-Martinez factors,

particularly the excessiveness inquiry, as well as the ultimate disposition, when

compared to distinct offenses. See, e.g., supra note 3. Instead, the “on its face” view

appears intended to avoid addressing the particularities of statutory implementation, see

Seling v. Young, 531 U.S. 250, 263, 121 S. Ct. 727, 735 (2001) (“[T]he civil nature of a

[statutory] scheme cannot be altered based merely on vagaries in the implementation of

the authorizing statute.”), rather than a reference to the conventionally understood

notion of a “facial” challenge, see Smith, 538 U.S. at 106, 123 S. Ct. at 1154 (Thomas,


2
   In accord with my understanding of the proper approach to ex post facto reviews, as
discussed further herein, the obligations imposed pursuant to Appellant’s tier I
designation are properly subject to examination, but only as compared to the actual
predicate offense that triggered those requirements.

3
    Nonetheless, I agree that there appears to be some disconnect between those
offenses that do not have a direct sexual element and requiring registration as a sex
offender. See OAJC, slip op. at 39. However, as discussed hereinafter, resolution of
such a claim must be addressed within the confines of a case implicating those crimes.



                       [J-121B-2016][O.A.J.C. – Dougherty, J.] - 7
J., concurring) (“I . . . reiterate that ‘there is no place for [an implementation-based]

challenge’ in our ex post facto jurisprudence. . . .     [T]he determination whether a

scheme is criminal or civil must be limited to the analysis of the obligations actually

created by statute.” (quoting Seling, 531 U.S. at 273, 121 S. Ct. at 740 (Thomas, J.,

concurring in judgment))).4 Cf. Todd W. Wyatt, Comment, Double Jeopardy and

Punishment: Why an As Applied Approach, As Applied to Separation of Powers

Doctrines, Is Unconstitutional, 24 SEATTLE U. L. REV. 107, 111 (2000) (contending that

an as-applied approach to punishment determinations would permit the executive

branch to render a statute unconstitutional via the manner that it is implemented). In

this respect, I am of the view that the present matter is limited to reviewing the

requirements imposed on Appellant by virtue of the offenses for which he was

convicted, i.e., the two counts of indecent assault.

       Accordingly, I do not read Mendoza-Martinez or its progeny as entirely

eviscerating the long-standing preference for as-applied challenges, see Kreit, Making

Sense of Facial and As-Applied Challenges, 18 W M. & MARY BILL RTS. J. at 658 (“[T]he

law strongly favors as-applied challenges . . ..”), or as diminishing other limitations on

constitutional challenges.    As to the latter, it appears that searching SORNA’s

provisions for any potential constitutional infringement, regardless of applicability to

Appellant, conflicts with the requirements of standing, which mandate the complainant

be adversely affected by the statutory provisions he seeks to challenge.        See Am.

Booksellers Ass'n, Inc. v. Rendell, 332 Pa. Super. 537, 554, 481 A.2d 919, 927 (1984).

Thus, Appellant is limited to contesting only those aspects of SORNA implicated by his

actual convictions.   See Van Doren v. Mazurkiewicz, 695 A.2d 967, 972 n.7 (Pa.

4
  Generally, a facial challenge asserts that the statute cannot be applied to any set of
facts in a constitutional manner. See Alex Kreit, Making Sense of Facial and As-Applied
Challenges, 18 W M. & MARY BILL RTS. J. 657, 657 (2010).


                       [J-121B-2016][O.A.J.C. – Dougherty, J.] - 8
Cmwlth. 1997) (explaining that, although petitioner could challenge registration

requirements under a prior sex offender statute, he could not contest other provisions

that were not triggered by his conviction); Mink v. Suthers, 482 F.3d 1244, 1253 (10th

Cir. 2007) (“[M]ere presence on the statute books of an unconstitutional statute, in the

absence of enforcement or credible threat of enforcement, does not entitle anyone to

sue . . ..” (internal quotation marks and citation omitted)).

       As a final observation relative to the “on its face” review, to the degree that the

reporting requirements of SORNA could be found unconstitutional relative to certain

predicate offenses, those provisions may be severed from the constitutional portions of

the statute. See Williams II, 574 Pa. at 527, 832 A.2d at 986 (severing, as excessive,

the life imprisonment penalty for failure to comply with reporting requirements of

Megan’s Law II); 1 Pa.C.S. §1925. Accordingly, I would limit review to Appellant’s

convictions and the applicable SORNA registration and reporting requirements.

       On the whole, in light of the tiered reporting scheme, the lack of retributive effect,

and the disclosure of information in line with that addressed in Smith, I am of the view

that SORNA’s application to Appellant’s conviction does not operate to promote the

traditional aims of punishment.

       Next, I agree with the OAJC that the already-a-crime factor is of little significance,

since prior criminal conduct is a prerequisite to SORNA’s application. See Smith, 538

U.S. at 105, 123 S. Ct. at 1154.

       In assessing whether there is an alternative purpose to which the statute may be

rationally connected, my view largely comports with that of the OAJC, i.e., that there is

plainly a rational connection between SORNA and public safety and health. Further, I

similarly acknowledge that there is a growing body of evidence suggesting that the

recidivist premise for sex offender registration laws may not be as settled as once


                        [J-121B-2016][O.A.J.C. – Dougherty, J.] - 9
believed. Nonetheless, it seems evident that these types of policy judgments are best

directed to the legislative branch. See Seebold v. Prison Health Servs., Inc., 618 Pa.

632, 653, 57 A.3d 1232, 1245 (2012) (“[W]e have often recognized the superior tools

and resources available to the Legislature in making social policy judgments, including

comprehensive investigations and policy hearings.”). I also emphasize that SORNA’s

“rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our

determination that the statute’s effects are not punitive.” Smith, 538 U.S. at 102, 123 S.

Ct. at 1152 (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 2148

(1996)). Accordingly, this factor strongly weighs in favor of finding that the statute does

not impose punishment.

       Relative to the final factor -- whether the statute is excessive in relation to the

alternative purpose assigned -- I agree in part with the OAJC that, as applied to a few of

the offenses, there is a significant concern of over-inclusiveness, given that the crimes

do not relate to any particular sexual act by their terms. See OAJC, slip op. at 45 (citing

18 Pa.C.S. §2902 (unlawful restraint); §2903 (false imprisonment); §2904 (interference

with custody of child)); see also supra note 3.5 However, as discussed previously, this

matter does not implicate any of those crimes. Nonetheless, I do share with the OAJC

some concern that there is no provision to allow a lifetime registrant to demonstrate that

he is no longer a risk to others. Thus, as to this factor, there is at least a minimal

indication of punitiveness.



5
  The OAJC includes within its non-sexual offenses designation 18 U.S.C. §2424,
pertaining to the filing of a factual statement about an alien individual. However, a
review of that federal statute reveals that it relates to housing a person “for the purpose
of prostitution, or for any other immoral purpose . . ..” Id. Thus, I disagree that there is
no sexual component.



                      [J-121B-2016][O.A.J.C. – Dougherty, J.] - 10
       Based on the Mendoza-Martinez factors, which I view as almost uniformly

suggesting a non-punitive effect, I would conclude that SORNA’s registration

requirements do not constitute punishment and do not violate the federal ex post facto

clause.6

6
   Although the Mendoza-Martinez factors are the prevailing framework for determining
the punitive effect of a statutory enactment, a number of scholars and jurists have
expressed significant reservations with their use relative to assessing collateral
consequence laws, such as SORNA. See David A. Singleton, What Is Punishment?:
The Case for Considering Public Opinion Under Mendoza-Martinez, 45 SETON HALL L.
REV. 435, 442 (2015); Mayson, Collateral Consequences and the Preventative State, 91
NOTRE DAME L. REV. at 332-33. Specifically, one commentator explains that the factors
are too deferential to legislatures (given the ex post facto clause’s role in safeguarding
liberty), are highly subjective and manipulable, and rely in part on circular logic (e.g., a
finding that a sanction is a historical form of punishment effectively resolves the initial
punishment query without need to consider the other factors). See Singleton, What Is
Punishment?, 45 SETON HALL L. REV. at 443-44.

Commentators and jurists have also proposed alternative tests to determine whether a
sanction is punitive. See, e.g., Aaron Xavier Fellmeth, Civil and Criminal Sanctions in
the Constitution and Courts, 94 GEO. L.J. 1, 41 (2005) (“[A] measure having the
systemic effect of deterring or punishing a forbidden act should . . . always be
considered criminal . . ., while a measure having the systemic effect of providing
remediation to a party allegedly injured by an act or omission of the defendant should
always be considered a civil one.”); Mayson, Collateral Consequences and the
Preventative State, 91 NOTRE DAME L. REV. at 333 (suggesting that collateral
consequences should be conceived of as falling along a “punishment-prevention
spectrum . . . according to whether they claim primary authorization from a judgment of
culpability [(punishment)] or a judgment of risk [(prevention)]”); Smith, 538 U.S. at 112,
123 S. Ct. at 1157 (2003) (Stevens, J., dissenting) (“The sanctions [are criminal if they]
(1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone
who is convicted of a relevant criminal offense, and (3) are imposed only on those
criminals.”). However, the United States Supreme Court has offered no indication that it
is contemplating abandoning the Mendoza-Martinez model, and the parties here do not
advocate for any such change.

Nonetheless, I emphasize that, although collateral consequences, of whatever form,
may not be deemed punishment for constitutional or other purposes, such a
determination is made despite the seemingly widespread recognition that they are not
(continued…)
                      [J-121B-2016][O.A.J.C. – Dougherty, J.] - 11
       As for the state constitution, I agree with the OAJC to the extent that it generally

finds a broader protection for reputational interests than offered by the federal

constitution. See PA. CONST. art. I, §1. However, my view diverges from the notion that

SORNA operates punitively with respect to Appellant’s reputation. As Justice Wecht

explains in his concurring opinion, the impact of the law in this regard is already

subsumed in considering whether the sanction is historically regarded as punishment

and whether it promotes the traditional aims of punishment. See Concurring Opinion,

slip op. at 15 (quoting Mendoza-Martinez, 372 U.S. at 168, 83 S. Ct. at 567).           As

discussed above, the manner in which factual information is made accessible pursuant

to SORNA has been rejected as constituting the type of harassment or embarrassment

that reflects colonial era shaming punishments. See Smith, 538 U.S. at 98, 123 S. Ct.

at 1150 (“Any initial resemblance to early punishments is . . . misleading. . . . [P]ublic

shaming, humiliation, and banishment . . . involved more than the dissemination of

information.”).   Thus, I remain unpersuaded that the Pennsylvania Constitution’s




(…continued)
simply benign to those who are subject to them. See Sandra G. Mayson, Collateral
Consequences and the Preventive State, 91 NOTRE DAME L. REV. at 303–04 (“[C]ourts
have reached a defensible result in declining to [categorize collateral consequences as
punishment]. Where they have erred is in assuming that, as mere regulation, [collateral
consequences] are benign. On the contrary, laws that restrict certain people's liberty on
the basis of their perceived propensity to commit future crimes raise both moral and
constitutional concerns. Predictions of future crime are highly inaccurate; they tend to
track stereotypes, and factors used as proxies for future risk both reflect and perpetuate
race and class inequality. More fundamentally, predictive restraint contravenes the
liberal ideal that the state may not preemptively restrain people who are responsible
actors to stop them from committing future crimes.”). However, “‘punitive’ in the
experiential sense of the word” does not equate to punishment for purposes of
invalidating a legislative enactment on constitutional grounds, which ultimately appears
to be reflected in the Mendoza-Martinez framework. Id. at 334.


                      [J-121B-2016][O.A.J.C. – Dougherty, J.] - 12
broader general protection of reputation interests results in the finding that SORNA is

punishment.




                     [J-121B-2016][O.A.J.C. – Dougherty, J.] - 13
