Two years ago, the Supreme Court of Pennsylvania remanded a case back to the trial courts for the judge in the case to analyze SORNA’s constitutionality. On August 23, 2022, the court handed down a decision. “No,” the court said. SORNA is not constitutional “as a legislative scheme,” and it is unconstitutional as applied to the defendant.

The court starts by examining SORNA’s irrebuttable presumption that all sex offenders, regardless of their personal characteristics and circumstances, have a high risk of reoffending sexually. That presumption is not consititutional, the Court concludes, because it is empirically false. The vast majority of sex offenders do not reoffend sexually.

The court also considered a separate question– whether the sex offender registry constituted criminal punishment. The court found it does. And because it constitutes criminal punishment, it’s punitive nature offends Apprendi; results in a criminal sentence in excess of the statutory maximums; violates Federal and State proscriptions against cruel and unusual punishment; and breaches the separation of powers doctrine.

I was curious about the judge, the Honorable Allison Bell Royer. A registered Republican, she has a degree in Government, used to run her own law firm, has previously practiced criminal defense and is apparently a member of the Chester County Chapter of the Daughters of the American Revolution.

The decision, covered in an opinion by Justice Kevin M. Dougherty, clears the way for county judges to resume imposing the SVP label on sex offenders who are determined to be perpetual dangers to society.

The SVP designation is a step above even the requirement imposed on some sex offenders to register with state police for life or 25 or 15 years, depending on the nature of their convictions. SVP offenders have a lifetime registration mandate as well and police additionally inform their future neighbors and local schools and daycare centers in their neighborhoods about their crimes. They also must attend monthly sex offender counseling programs until they die.

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The association said in a statement, “Butler overturns the Superior Court’s finding that our state’s Sex Offender Registration and Notification Act (SORNA) Sexually Violent Predator (SVP) lifetime registration, notification, and counseling requirements (RNC requirements) were unconstitutional. The Supreme Court found that these requirements are not punitive in nature but instead are a collateral consequence of one’s actions and mental fitness and advance public safety.”

The statement continued saying, “The Court seriously erred by finding that public notification of SVPs is constitutional, and this decision will affect over 2,000 PA registrants as well as their families and friends. Being listed on a public registry as an SVP is an unjust and dehumanizing experience. Justice Wecht said at the hearings of Commonwealth v. Thomas Reed, Commonwealth v. Claude Lacombe, and Commonwealth v. Michael Witmayer that being listed on a public sex offender registry is “the mark of Cain.” The ruling in Butler has left intact the mark of Cain for those labeled SVP.”

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