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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