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Testimony of Fran Chardo Dauphin County District Attorney Before the Senate Judiciary Committee On HB 1952

My name is Fran Chardo, and I am the District Attorney in Dauphin County. I am pleased to be here today on behalf of my colleagues with the Pennsylvania District Attorneys Association to discuss HB 1952, a vital piece of public safety legislation.

HB 1952 needs to reach the Governor’s desk soon. Otherwise:

These are the stakes. These are the issues.

Background: Terms, Acronyms, and the Muniz Decision

Former Cumberland County District Attorney Dave Freed testified on this issue before the House Judiciary Committee this fall. During his testimony, Dave went into great detail explaining the important background of how we got to where we are today. This is necessary background, and with your indulgence I would like to explain the legal and statutory underpinnings of the issues before you today.

One of the most important things I can do during the hearing is to explain the various phrases you have heard and will hear this morning: sex offender registry, Megan’s Law, the Adam Walsh Act, and SORNA (an acronym for the Sex Offender Registration and Notification Act, which is our present version of Megan’s Law). While these terms mean slightly different things legally, they all generally refer to our sex offender registration system and process.

The system and process include the following: 1) requirements that sex offenders register and verify their information such as their address and place of employment, 2) provisions that make it a crime to fail to comply with these obligations, 3) the process by which sexually violent predators are designated, and 4) the rules and guidance regarding what information is publicly accessible on our state’s sex offender registration website.

Mr. Chairman and other members of the Committee, here is the short summary of why HB 1952 is necessary. On July 19, 2017, the Pennsylvania Supreme Court in Commonwealth v. Muniz ruled that provisions of SORNA that applied retroactively were unconstitutional because they were punitive. As a result, such retroactive application violated the Ex Post Facto Clause of the federal Constitution. An ex post facto law, among other things, increases the penalties for a crime after it has been committed. Ex post facto laws are unconstitutional. The United States Supreme Court denied a certiorari petition by the Cumberland County District Attorney’s Office on January 22.

The import of this summary of Muniz, the decision which is effectively the reason we need HB 1952, is not completely clear without yet another brief summary, this time of the history of Megan’s Law.

But as I provide this background, please remember that unless there is a legislative change, there is a probability that those who committed the crime for which they have had to register as sex offenders before December 20, 2012 (the effective date of SORNA) may not be able to be prosecuted for failing to meet their registration or verification obligations and will be removed entirely from the Megan’s Law website. That affects nearly every single sex offender and sexually violent predator who committed a sex crime before December 20, 2012.

Legislative History of Megan’s Law

Nearly 20 states are in compliance with SORNA. States that are not in substantial compliance with SORNA receive a 10 percent reduction in federal Justice Assistance Grants (JAG), which are typically used for public safety purposes.

Significantly, and also required by federal law, Pennsylvania’s SORNA statute was retroactive, meaning that anyone who, on the effective date of SORNA, was incarcerated, under county or state supervision, or on the registry, was subject to the new SORNA requirements. It is this provision that was the subject of Muniz.

States that are not substantially compliant with SORNA are fined. The fine comes from their Justice Assistance Grants (JAG) funding, which is funding used to support law enforcement and public safety programs and functions.

Sexually Violent Predators

I also wanted to discuss briefly the process by which a sex offender is determined to be a sexually violent predator (SVP). The process is well-summarized on the website of the Sexual Offenders Assessment Board (SOAB). An SVP is a convicted sex offender who has “a mental abnormality or personality disorder the makes the person likely to engage in predatory sexually violent offenses.” Every person convicted of a registration offense must be assessed by the SOAB to determine whether that individual is an SVP. Within 90 days of the date of conviction, the SOAB must submit a written assessment recommending whether or not the individual should be classified as an SVP, based on statutory criteria. For a sex offender to be deemed an SVP, the Commonwealth must prove in court by clear and convincing evidence that this individual meets the statutory criteria.

SVPs must register for life, verify their information quarterly and in-person, receive monthly sex offender counselling for life, and be the subject of active community notification.

Significant Sex Offender Recidivism and Underreporting of Sex Offenses

Some have questioned whether sex offender registries work or otherwise represent good policy. I wanted to share some thoughts on this issue. The underpinning of sex offender registries is that sex offenders are dangerous; they often prey on our most vulnerable and commit crimes that can result in a lifetime of struggle and challenges for the victims and their families; sex offenders are high risk and they re-offend. There has been a significant amount of literature and studies attempting to measure risk posed by released sex offenders. And while there is some social science discussing how dangerous released sexual offenders are, there is no social science asserting that sexual offenders are not dangerous or do not recidivate. Nor is there any social science asserting that new sexual crimes by released sexual offenders are not of great concern. 1

One such study followed 9,691 male sex offenders released from prisons in 15 states in 1994 and found that nearly 4 out of every 10 returned to prison within 3 years. Another study that spanned a twenty-five year period after release found that rapists and child molesters remained at risk to reoffend at least 15-20 years after discharge, and that the sexual recidivism arrest rate for rapists was 39% and the sexual recidivism arrest rate for child molesters was an even higher 52%. 2

Equally significant is that any statistical attempts to measure the risk of new offenses greatly understate the true nature of the problem because the vast majority of sex crimes are never reported. Victims and parents of victims frequently do not report offenses because they fear further victimization by the offender, retribution by the offender’s friends and family, loss of privacy, risk of not being believed, embarrassment, trauma from the criminal justice system, and fear of poverty (where the victims are dependent on their assailant). Studies by the Bureau of Justice Statistics estimate that two out of three sexual assaults against individuals age 12 or older are not reported. Another study found that 84% of rape victims do not report the crime. 3

Data obtained by polygraph examinations of imprisoned sex offenders averaging fewer than two known victims found that such offenders had an actual average of 110 victims. 4

A similar study of sex offenders found they had been “committing sex crimes for an average of 16 years before being caught.” 5

1 Langan, Patrick A, et al. “Recidivism of Sex Offenders Released from Prison in 1994.” Bureau of Justice Statistics, 2003.
2 Prentky, R.A, et al. “Recidivism rates among child molesters and rapists: A methodological analysis.” Law of Human Behavior, vol. 21, no. 6, 1997, pp. 635-659
3 Kilpatrick, DG, et al. “Rape in America: a report to the nation.” Prepared by the National Victim Center & the Crime Victims Research and Treatment Center. 1992. http://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=538
4 Ahlmeyer, S, et al. “The impact of polygraphy on admissions of victims and offenses in adult sexual offenders.” Sexual Abuse: A Journal of Research and Treatment, vol. 12, no. 2, 2000, pp. 123-138.
5 Ahlmeyer, S, et al. “The impact of polygraphy on admissions of crossover offending behavior in adult sexual offenders.” Association for the Treatment of Sexual Abusers 18th Annual Research and Treatment Conference, 1999, Lake Buena Vista, FL. Presentation.

All of this means one thing: assessments of the threat posed by released sexual offenders are certain to underestimate the risk.

Do sex offender registries help to mitigate the unquestionable risk that released sexual offenders pose? My colleagues and I believe they do. To be sure, looking at sex offender registries can never be the exclusive way in which an individual tries to keep him or herself or his or her children safe from sexual predators. We have to remember that a child predator is more likely to be someone that a victim or his or her parents know; that we should be suspicious of adults who make special efforts to be alone with a child; that we need to listen to what our kids tell us; that women can be sexual abusers; that we should talk to our kids about specific suspicious situations to be cautious of, such as an adult asking a child for directions. If used as a tool, and not the exclusive tool, sex offender registries do provide important information for protecting both children and adults from sexual predators.

Effects of Muniz

Returning to the beginning point of our discussion: On July 19, 2017, the Pennsylvania Supreme Court, in Commonwealth v. Muniz, ruled that provisions of SORNA that applied retroactively were unconstitutional because they constituted punishment. As a result, such retroactive application violated the Ex Post Facto Clause of the federal Constitution.

Those affected by the decision are those who committed their registration crimes before December 20, 2012. In other words, if a person committed a rape before December 20, 2012, he or she may not be required to register nor may he or she be prosecuted for failing to register. This is because SORNA, which was effective on that day, is no longer retroactive. Because it is not retroactive and because the prior version of Megan’s Law (Megan’s Law III) was replaced by SORNA, there may not be a sufficient statute in place to place any registration requirements on these sexual offenders. PSP advises that there are over 15,000 such individuals. If those individuals failed to register or verify their registry, we may not be able to prosecute them. And whether they would remain on the registry appears to be less than promising. Many of us are unable to proceed on cases where sex offenders have failed to verify their registration information.

Muniz Effects Have Expanded: New Case Stops Sexually Violent Predator Assessments

The decision in Muniz has caused another significant problem: the process for determining which sex offenders are sexually violent predators has all but stopped; we no longer are able to determine which sexual offenders are the worst of the worst and the most dangerous predators.

This is the case because following Muniz, our Superior Court issued a sua sponte ruling in Commonwealth v. Butler, which said that as a result of Muniz the process by which sex offenders are evaluated to determine whether they are sexually violent predators is unconstitutional.

The reasoning is complex and involves the interplay with caselaw that holds that all elements of a crime must be proven to the factfinder at trial and proven beyond a reasonable doubt. But according to the Butler court, because Muniz held that the SORNA provisions are punitive, the steps in the process by which a sexual offender is assessed to determine whether he is a sexually violent predator must be treated as elements of the underlying crime. Practically speaking, Butler would require the SOAB to complete a sexual offender evaluation before trial in every single sex offender case, even if the defendant is ultimately acquitted. Not only would this be costly and require a significant extra appropriation to the SOAB, but it would necessarily slow down virtually every sexual assault trial and require matters to come before the court during trial that are not entirely appropriate and perhaps prejudicial.

Delays, higher costs and less justice. That’s where we are now.

HB 1952 Will Remedy These Problems

HB 1952 would help to avoid this significant problem.

There are two legal goals in HB 1952. First, the legislation seeks to ensure that those who committed registration offenses before December 20, 2012 remain on the registry and can be prosecuted, if appropriate, for failing to verify their registration information. HB 1952 accomplishes this goal by reinstating virtually all of Megan’s Law as it was in effect before SORNA was enacted into law. In other words, the sexual offenders who committed their crimes before December 20, 2012 would be subject to the Megan’s Law provisions to which they were subject before SORNA took effect. This provision is necessary because SORNA itself eliminated the prior versions of Megan’s Law and subjected all of our sexual offenders to SORNA.

One may ask whether this provision is constitutional since it applies a prior version of Megan’s Law retroactively. It is indeed constitutional. Prior versions of Megan’s Law included in this language were never held to be punitive and, therefore, were never held to represent punishment. Instead, they were recognized as collateral consequences and therefore civil in nature. Civil provisions may be applied retroactively as a matter of law. Criminal statutes may not. Because versions of Megan’s Law prior to SORNA, such as that which is contained in HB 1952 (which would, again, apply to those who committed their registration crimes before December 20, 2012), were civil in nature, retroactive application is entirely legal and appropriate.

The second purpose of the legislation is to address the problems created by the Butler decision. The most immediate problem is the inability to conduct assessments to determine if convicted sex offenders are sexually violent predators. To remedy this problem, HB 1952 seeks to make SORNA non-punitive; to do so it removes burdens on sexual offenders in two ways. First, it allows sexual offenders to petition to be relieved of registration requirements after 25 years. Second, it allows most sexual offenders to only have to verify in person their information with law enforcement once per year. Any remaining verifications during that annual period may occur telephonically. Sex offenders would have to wait three years after they first are placed on the registry and have a clean record during this time period in order to take advantage of this provision. These provisions would apply to the provisions of the bill which reinstate the prior version of Megan’s Law for those who committed their crimes before December 20, 2012.

These two sets of provisions were included because of specific language in the majority opinion in Muniz. We believe this language will render SORNA non-punitive in the eyes of the Court. As all of you know, we cannot predict what the Courts will do, but what we can do is attempt to respond in a thoughtful and deliberate manner, relying upon the holding and reasoning in the majority opinion.

Thank you Mr. Chairman for the opportunity to testify before you this morning. I am happy to answer any questions.