In December of 2012, a law known as SORNA became effective and modified the reporting requirements under what is commonly referred to as Megan's Law. Megan's Law set forth an exhaustive list of offenses that required any person convicted of or having pleaded guilty to such an offense to provide information to the Pennsylvania State Police for inclusion on the sex offender list. A person required to register must advise of any change in residence, change in employment, enrollment in school, change in phone numbers or email addresses, and a change of vehicles or watercraft.
Megan's Law Reporting Not a "Criminal" Punishment
Under Pennsylvania law, being placed on the Megan's Law list has been deemed by the court's to not constitute "punishment" to the offender. Instead the Pennsylvania courts have characterized sex offender reporting to be a civil or collateral consequence of the conviction, similar to a person being subject to a license suspension, losing a government pension, or being deported because of a conviction. While the courts do not believe that being a Megan's Law registrant is a punishment, people that are facing mandatory reporting view it differently.
Many people are willing to take a more severe punishment in the criminal case, such as increased jail, fines, or community service, in order to avoid having to plead guilty to a charge that imposes registration as a sex offender. Criminal defense lawyer will often try to negotiate a resolution with the prosecutor to avoid having a client plead guilty to an offense that triggers Megan's Law reporting. Over the years, many Penn State students that were charged with sexual offenses accepted plea agreements with the Centre County District Attorney's Office that required the person to go to jail, and the student was assured that Megan's Law registration was avoided.
Non-Registrants Must Now Register
With the passage of SORNA, people that were not required to report as a sex offender were now required to register. Other people that were required to report for a period of 10 years now became lifetime registrants under SORNA. Many people, especially criminal defense lawyers, questioned how the legislature could basically increase the punishment imposed on a person after the fact, which is an ex post facto law. Because Pennsylvania courts have held that Megan's Law registration is not a criminal punishment, the passage of SORNA was held not to be an ex post facto law and was deemed to be constitutional.
Defense attorneys across the state of Pennsylvania were forced to contact clients and tell them that the client would be required to register as a Megan's Law offender. The fact that the client's case was resolved years ago didn't seem to matter. The fact that the defense lawyer, the district attorney, and even the judge told the client that he would not need to register did not seem to matter.
Plea Agreement is a Contract
The good news is that defense lawyers do not often take no for an answer. Creative defense attorneys argued that clients should not be required to report based upon contract principles. The client had expressly accepted a plea agreement in order to avoid reporting. Since the client held up his end of the bargain, the state should be held to its bargain and not permitted to force the client to register. Makes sense. The prosecutor had agreed to not have client be required to register when the prosecutor issued the plea offer, so why would a prosecutor not take the high road and stick to the agreement. Despite what would make sense, many district attorneys in Pennsylvania have ignored the plea agreements that were issued and fought to force registration.
In the case of Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc), the Pennsylvania Superior Court issued an opinion that accepted the contract argument and held that a person that accepted an agreement with the express understanding that he would not be subject to Megan's Law reporting could not be forced to register under SORNA.
The Court gave the defendant the benefit of his bargain. Despite the opinion in Hainesworth, many prosecutors waste time and tax payer money on pursuing appeals on this issue. At least three opinions have been written by the Superior Court for Centre County cases involving this issue, and those opinions have all been in favor of the defense. Hopefully the Centre County District Attorney's Office accepts the current status of the law on this issue and stops filing appeals in every case. If not from a legal standpoint, then from a moral standpoint, the prosecutor should stand by the agreement that was made years ago and not allow a person to receive what is an increased punishment.