Provision of Megan's Law requiring internet posting of photographs and information regarding lifetime registrants was not punitive and did not violate ex post facto provisions.
By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Defense Lawyer, Harrisburg, PA
The Pennsylvania Superior Court in Commonwealth of Pennsylvania v. Donald Lee ACKLEY, 58 A.3d 1284 (Dec. 18, 2012), determined that the provisions of Megan's Law requiring posting of photographs on the internet of sexual offenders did not violate the ex post facto provisions of the PA Constitution and was not punitive.
A Three-Pronged Test for Determining if the Registration Provisions Violate Ex Post Facto
What is Ex Post Facto? In general, ex post facto clauses were included in Constitution to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation, and to insure that legislative enactments give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. Literally, the term means "after the fact." In other words, the legislature cannot pass a law criminalizing specific conduct after it has occurred. The Ex post facto argument instantly means that the provision for registration has occurred after the crime which requires the registration was committed.
The following three-prong test: (1) whether the legislature's actual purpose was punishment; (2) whether the objective purpose was punishment; and (3) whether the effect of the statute is so harsh as to constitute punishment
A Review of the Statute by the Court
First prong: The Court held that the actual purpose was solely as a means of public protection and shall not be construed as punitive.
Second prong: The objective purpose is remedial. The information about sexual offenders be "readily accessible to parents and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk" is remedial.
Third prong: Finally, as to effect, may have some punitive effect in terms of shaming the sex offender, such effect has not been demonstrated to be sufficient in itself to render the challenged measures criminal punishment for constitutional purposes.
Exemption is a Possibility from the Requirement if Conditions Met
Title 42 Pa.C.S. § 9795.5. provides that an exemption from certain notifications can be requested. In order to qualify, the offender must meet the following conditons:
- Not a sexually violent predator;
- Petition the sentencing court to be exempt from the application of section 9798.1 (relating to information made available on the Internet and electronic notification); and
- No less than 20 years have passed since the individual has been convicted of any offense punishable by more than one year.