In an opinion issued yesterday in the Commonwealth Court of Pennsylvania, a person forced to register as a sex offender had the registry declared unconstitutional as applied to him, an individual whose offense was committed prior to the date of the registry or certain of it’s provisions.
You can read the 58 page, well-reasoned opinion here: t.s._v._psp
Pennsylvania had previously and recently (2017) had it’s registry declared unconstitutional (Commonwealth v. Muniz), but then the legislature went back and tried to fix the constitutional issues. The significance of this recent case is that the Court concluded that the changes made by the PA General Assembly in an effort to correct the deficiencies the Supreme Court had found in Muniz do not sufficiently alter the balance test of whether the law is punitive.
The following excerpt from the opinion is very telling: Petitioner is subject to arrest and criminal sanction if he does not verify his residence, notify PSP of changes,or appear for in-person registration, 42 Pa.C.S. §9799.56(d). Consistent with our Supreme Court’s precedent, and following Muniz, we discern no material difference between the conditions imposed in probation and the conditions imposed upon Petitioner under subchapter I of Act 29.
Good. We’ve been holding our breath hoping this happens in Florida.
Lx
Some of us have been holding out breaths since 1997 when this first came out and we are turning numerous shades of green. Not sure how much longer some of us have left. Getting off the registry when I am sent off to a nursing home isn’t my idea of a victory.
I would like to have a few years of freedom. My Dad is in his 80s, all my other relatives moved away. If I was to get a failure to register arrest and end up back incarcerated, my Mother would be all alone.
So it’s been about a month since the last Does v. Swearingen update (no mediation). Any new news to share?
I previously posted the scheduling order, so you can see what’s up next and when we can expect it to become due.
The only other news in that case is the State filed the Estes-Hightower dismissal in the Northern District as a supplemental authority. This is the second Estes-Hightower loss to be cited by the state and that’s been used against us. It’s a perfect illustration of why we discourage unqualified attorneys or pro-se litigants to file these cases when they don’t know what they are doing.
FAC:
It’s a catch-22. Most registrants can’t afford attorneys. And more often than not, pro se litigants aren’t tripped up on law, but innocuous procedural matters, few of which (if any) have any bearing on the legal issue at hand.
Public defenders are no help at all. There are very few attorneys that will take sex offense litigation pro bono, and those that do are spread too thin to give much attention to an individual case. People can only suffer in silence for so long…
That’s why we pool funds to bring good quality cases.
Found it:
https://floridaactioncommittee.org/amended-scheduling-order-set-in-does-v-swearingen-ex-post-facto-plus-case/
May 15, 2020: Defendant must disclose expert witnesses.
Thanks.
We’re still awaiting ruling on state’s motion to dismiss, aren’t we? And that’s not even part of the schedule!
Correct, but the State’s request for a stay was denied, so things are moving forward on schedule.
Well that is something anyway right? The courts did not just toss the case in favor of the state which often happens. sometimes just being able to be heard is the first step in getting someone to hear the facts and not just read an exhausting stack of filings.
Go team F.A.C
How do you restore constitutionality to an ex post facto violation of law? Once a law is declared unconstitutional it’s over, or so at least I thought. I suppose that lawyers being paid a salary by the taxpayers have a lifetime to argue their points…i.e. make a career out of arguing and violating the Constitution. I have yet to figure out how a law can be unconstitutional in one state and not in all states with a similar law? We are ‘United States’ are we not?
My guess is the Pennsylvania legislature was given the change to change their law so the original SORNA and amendments only applied on the date they were passed into law and forward in time, not backwards. They obviously didn’t do that and the court is saying no again.
That is because the courts make these rulings but do not enforce them. How many times has someone been ordered to be released from prison pending a re-trial, only to not be released? I have seen that numerous times on the news over the years. The states know that so they buck the system and push the limits.
Like a slap in the face of justice.
Sounds similar to the foolishness that has been going on for several years in Michigan after the sixth circuit and effectively the Supreme Court of the United States told them that their sex offender registry statute was unconstitutional. Can anyone tell us that they’re not enforcing the old law while their allegedly trying to come up with a new one?
Another domino falls. Maybe one day soon they’ll fall in Floriduh too
Bob
I hate to say it but, for some reasons, Florida seems to be the red headed step child of laws and legislation. I see shows all the time talking about stuff that happens here and the narrators always make fun of us saying “Only in Florida”.
On that note, somethings that should be standardized would help. I remember when I was in law enforcement, no one would pull over for the police. The reason, Florida has red for fire department and blue for police. In Places like New York they have red lights for police and blue for fire engines. How confusing is that for someone visiting. Go figure.
So how does Pennsylvania treat out of state offenders? Obviously, the powers that be in these various states will do whatever they want as long as they can get away with it, but if several quarts in Pennsylvania have declared these X post Facteau in positions to be not only violated of the constitution of the Commonwealth of Pennsylvania but also that of the United States, then how could the commonwealth possibly apply different standards two registrants with out-of-state convictions? This has traditionally been a common problem that effectively precludes many of us registrants from relocating to states with less draconian registration laws. With a decision like this, how would you apply that “The greater of” standard to a registrant like many states have done in the past? I may have misinterpreted this, but didn’t the recent case in Indiana address that very issue not only has applied to out of state registrants but also to Indiana registrants who had left the state and then returned? As we have discussed elsewhere, as long as Florida keeps everyone on their registry no matter whether they are alive or dead or living in Madagascar, we will have to contend with that. But, if you can move to a state where you either do not have to register or can be removed. Then there is the chance to reclaim some degree of anonymity, even if it is minimal.Most of us are painfully familiar with the measures that Florida has an acted over the last 20 years or so to ensure that a registrant cannot function in any meaningful way in society in the sunshine State.
Hey JoeM,
I am an offender out of Florida living in Pennsylvania. The Megan’s Law Division of the Pennsylvania State Police stated to me that they go by the present state law where your conviction was out of. So, my conviction was out of Florida, Florida has a lifetime registration. Therefore, I have to register in PA for life. Sucks but what ya gonna do? Keep hanging in there until something changes.
That’s what I thought. That is not uncommon, but I wonder how they can do that in light of this most recent decision?
PLEASE Jesus, let one of these cases finally crack the code of silence. States one by one are doing something but the U.S supreme court seems to have corn cobs stuck in their bums and afraid they will tarnish their precious reputations.
Precedence precedence precedence precedence !
Maybe one of these Supreme Court justices near death will have a revelation and finally step up
There have been cases, on RARE occasion, where a judge who was close to retirement, reflected on some of the rulings he made and felt guilty and reversed, or had a re-hearing and change of heart.
I cannot quote a specific case but back in the past my lawyer mentioned something along those lines when we were going back before the judge for a reconsideration. Not only did that back fire, she used foul language at me and my attorney for daring to come back before her and challenge her authority.
Really do not know how she sleeps at night. That was 30 years ago. Just looked and she is STILL a judge. I would mention her name but then she would haunt my dreams so no thanks.
Michigan legislature had better take note of this in light of Miriam Aukerman’s warning to them last week— that their draft registry bill, if passed as is, would put the state right back in court.