Dissecting Torsilieri – Why the Pennsylvania Trial Court Decision Matters to Us
Since posting the opinion in Commonwealth v Torsilieri, there has been a lot of confusion and questions as to why this lower court decision from another state is good news for us here in Florida. I want to help unmuddy the waters by explaining the significance of this order for those in Pennsylvania, around the nation and specifically for us here in Florida.
First some history on the Torsilieri case… On July 3, 2017 George Torsilieri was convicted of a sexual offense in Pennsylvania. While he was pending sentencing, the Supreme Court of PA decided a case called Commonwealth v. Muniz which found parts of PA’s sex offender registration scheme unconstitutional. This interesting twist created a lot of confusion, not only over George’s sentence but over the mandatory lifetime registration he was statutorily going to fall under as a Level III sex offender. George argued that SORNA was Unconstitutional because of the presumption that all sexual offenders are dangerous and pose a high risk of recidivation, and that registration and notification procedures are necessary to protect the public from them. He argued that this presumption is not supported by current research and is incorrect. He also argued that contrary to popular belief (and the stated intent of SORNA) registration and notification provisions threaten public safety by preventing reintegration of the offenders as law-abiding citizens.
The trial court agreed with George on several grounds, essentially finding that requiring his registration violated his right to privacy under the PA constitution, but also (and more significantly), this “irebuttable presumption” that all sexual offenders are dangerous and pose a high risk of recidivism deprived him of his right to prove he’s not dangerous and poses a low risk of recidivism. Naturally, the Commonwealth of Pennsylvania appealed and the case made it’s way to the Supreme Court of that State.
In a long opinion that came out in 2020, the PA Supreme Court considered a lot of factors that other courts never bother to consider most significantly of which is the scientific evidence. They also considered his due process argument and ex post facto argument (essentially, is the registry punitive?). They also considered the same Mendoza-Martinez factors used in Smith v. Doe. The simple result of that case was that George won and PA lost (which is all that is relevant to George Torsilieri), but the more relevant part for all of us is that they wanted to know ‘what is the consensus among the scientific evidence on the risk and recidivism of registered sex offenders and does it support the presumption (1) that all sexual offenders pose a high risk of recidivation and (2) that [the registry] protects the public?’ (I paraphrased). To answer that question, they sent the case back to the lower court to make some factual findings as to whether these presumptions are true or false.
So here we find ourselves, seven years after George’s offense, five years after his conviction, two years after the PA Supreme Court remanded the case in order to answer that question, and we have our answer (and you now have a better understanding of the history of this case). For those negative nellies out there who have posted that the case will be overturned on appeal or PA will simply ignore the decision; been there, done that and they have not ignored the decision since the higher court ruled 2 years ago, so I don’t think they will do so now.
On to the more important aspects of this decision as they specifically relate to all registrants.
The opinion begins with the introduction, “On June 16, 2020 the Honorable Supreme Court of Pennsylvania directed this Court to analyze whether SORNA’s irrebuttable presumption that all sex offenders pose a high risk of reoffending sexually is constitutional”. That’s relevant to ALL registrants because basically within the legislative history of ALL registration statutes in ALL states or the registration ordinances in ALL municipalities, contains some version of the phrase, “The Legislature finds that sexual offenders, especially those who have committed offenses against minors, often pose a high risk of engaging in sexual offenses even after being released from incarceration or commitment and that protection of the public from sexual offenders is a paramount government interest.” That’s taken from Florida’s statute (at 943.0435(12)) but you can find the same copy/paste or variation of that language everywhere from the most populous state to a residency restriction in a small town. The opinion continues by also saying that the Supreme Court asked them to analyze whether the registry was punishment.
During the history of our advocacy we’ve been trying (sometimes successfully but often unsuccessfully) to overcome two conclusions from the awful Smith v. Doe Supreme Court of the United States decision. First is the false conclusion that recidivism rates of people convicted of a sexual offense are “frightening and high”, and the second false conclusion is that “the registry is not punishment”. That SCOTUS decision haunts all of us and this court Opinion debunks both those false conclusions.
While the analysis of the first question was under Pennsylvania’s Constitution, most state’s constitutions are similar. The Court found that the presumption of dangerousness is a stigma (a mark of disgrace associated with a particular circumstance, quality, or person) that marks a class of people without any consideration of individual characteristics or circumstances. The Court also found that the presumption (that registrants pose a high risk of reoffense) was bullshit (my words, not theirs, but the sentiment is the same). And to arrive at that conclusion they examined the scientific evidence!
I can’t describe the Court’s findings as to the punishment issue better than to copy and paste from the order here, “SORNA is unconstitutional both facially and as applied to this Defendant on the bases that it employs an irrebuttable presumption that is not universally applicable and because its punitive nature offends Alleyne and 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.” That says it all. SORNA is punishment.
On to why this decision is helpful to us here in Florida. First, as I quoted from Florida Statute 943.0435(12) above, our statute also contains this irrebuttable presumption of dangerousness and our statute also is extremely punitive. There are currently two cases we fought to bring (and have been brought) which we refer to as the “Ex Post Facto Plus” challenges. If anyone has followed the litigation, has followed our forum and has concerned themselves with the success of our case, will know that we fundraise in order to bring the best experts in our cases and much of our focus is on the scientific evidence which has helped tremendously in this PA case. The fact that another state has considered the scientific evidence, has found the research credible and applied it in a decision favorable to the registrants is hugely persuasive (in our opinion).
So while a decision from a Pennsylvania state court is not binding precedent on us here in Florida, it is significantly persuasive precedence. It is also significant that the evidence presented by registrants here in Florida has been found credible and adopted by the court in Pennsylvania. And finally, lets be happy for anyone who gets off this registry. We are all in this together. Maybe now people who were previously unemployable in Pennsylvania can now get jobs and help support our challenge? Maybe a judge in Florida will feel more comfortable granting relief knowing that another state has already ruled the same way? Maybe this decision gave hope to someone who not long ago felt hopeless like many of us do? This is a great week for the advocacy community!
Our ducks are lined up and one day our day will come!
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Pennsylvania advocacy YouTube update https://youtu.be/T9scawcs900
Important key I took away was that 6 people will rule on it since one passed away and in the event of a tie the lower court ruling will stand which Torilieri won.
Again, I just want to urge caution about getting excited over this case. The Pennsylvania superior court SPECIFICALLY vacated the trial court’s ruling that parts of the registry law are unconditional. It remanded the case right back to the trial court, solely so that the state could present additional contrary arguments that could have been presented at the trial court, but we’re not [moderator’s note: the case was remanded for further development of the record, as stated in the link below]. And that superior court wrote a long opinion including hints at how the state should argue it in the trial court. And as one of the dissenting judges on the superior court pointed out, even if the trial court rules exactly the same way after the state adds its new arguments, the case WILL come back before the superior court for a final decision. Considering that one of the “hints” that the superior court gave to the state attorneys to argue was that there is a purpose for the registry aside from punishment, I suspect that the superior court has no desire to rule the statute unconstitutional. Their overly long opinion remanding the case back to the trial court was aimed at helping the state argue the case [moderator’s note: the stated aim of remand, per the link below, was further development of the record].. When a judge tries to help a prosecutor, you know which way that judge leans. Worth reading and thinking deeply about.
https://casetext.com/case/commonwealth-v-torsilieri-7
[moderator’s note: The trial court subsequently ruled the statute to be unconstitutional].
Everyone must remember that these cases set up to the federal level. But, we must look at each case with its correct p
I personally believe the registry nationwide should be abolished because it violates the founding documents our country was founded on that all men are created equal but determining on the kind of sex charge you have you are not treated equal and subject to violation of your rights of reputation in your community and in return violates due process and fair treatment so regardless of arguing it’s violating one’s right to due process shows that the registry should have not even been implemented in the first place. And reputation depending on state constitution but also regarding the financial racketeering scheme which violates case law under the constitution that the government cannot take a liberty turn it into a privilege and attach a fee to it which means they’re commuting fraud and treason against the public and violating their oaths to protect the constitution from both foreign and domestic enemies. With their logic applied they have perpetuated this stigma these politicians and lawmakers that they need to protect the community and keep people registered and what they’re doing is investigating prior charges that are already decided after you have completed your sentencing so alright if it is about protecting the community have you proven in a trial I am dangerous to the community? So what now with all these other types of charges with actual violence and assault with higher rates of recidivism are they not a threat to the community but they can argue and perpetuate a stigma that I am? Which violates the constitutional right to reputation but they don’t violate other charges and the lawyers can just keep profiting off them because they’re in and out of jail repeatedly but no registration system? They’ve devised this because 90-95 percent of people charged with a sex crime have never been in trouble and will never be in an issue agenda or plan with getting their foot in the door of you liberties and they can charge you with a level 6 felony if you don’t comply with their system and can charge you money yearly so they’re keeping you as collateral and as hostage on their system because they know they can’t profit off you again but they certainly know other charges people will keep going in and out of jail all the time and if there were restrictions like this for every other single charge the lawyers would be out of business because of their goals were to really protect the community why not perpetuate the scheme against all? They know they would have lawsuits nationwide so they decided to segregate a certain group of people through lies and intimidation. Just as John Kennedy stated it is infiltration of our ranks in this country and they’re the same people attacking the second amendment. Anyone who would give up essential liberty for security deserves neither liberty nor security. Benjamin Franklin. A chain is only as strong as it’s weakest link. Protect all constitutional rights to life liberty and pursuit of happiness. Abolish SORNA.
I read yesterday that the State of Pennsylvania has, indeed, appealed this ruling to the state’s supreme court. Just as I knew that they would. I will repeat, a trial court judge cannot determine that a law is unconstitutional. Constitutionality is always the province of the supreme court. If Pennsylvania’s supreme court eventually affirms that decision, that’s great. But more than likely it will group some similar cases together if possible, and come to an authoritative ruling one way or the other. Individual trial court decisions carry no weight at all pertaining to other cases.
Are we wasting our time, then, challenging the constitutionality of the FL registry at the trial court level?
In general, the trial court level is the first step. Most issues have to be raised in the trial court first, either by objection or petition. But a trial court decision has no effect over cases in other courts. As I pointed out in a different post, this decision has already been cited by litigants in other cases with no success. In fact, earlier in August Pennsylvania’s Superior Court in a case involving Thomas Benjamin Howard issued a ruling that the state’s registry law was constitutional. It is highly likely that when they remanded Torsilieri back to the trial court, they expected the judge to conform her ruling in the same way, that the law is constitutional because the Superior Court said it is. There is a strong likelihood that they will strike her ruling down as erroneous. We can hope that they have plans to fully address the constitutionality of Pennsylvania’s law again because the issues were framed differently, but their most recent decision was that the law is constitutional because it’s merely regulatory.
Unfortunately, it’s like a football game. You don’t celebrate because you have the lead after one quarter. You have to wait until the game is over.
Are we saying that the state won an appeal, or just that they filed one?
They filed an appeal but all they’re doing is setting the Registry up for disaster as soon as it reaches the Supreme Court and they right their wrongs.
We can only hope that their court sees something in the arguments to change their opinions. It’s why this forum was created after all. The hope to change an unjust system.
Does anyone know if we have challenged the right to reputation defense that Pennsylvania just used. Seems the Florida Constitution has similar protections. Could we use the Slander/Libel angle?