[ J

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IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

GEORGE J. TORSILIERI,

Appellee :

:

:

:

:

:

:

:

:

:

: No. 37 MAP 2018

Appeal from the Order of Chester County Court of Common Pleas, Criminal Division, dated July 10,

2018 at No. CP

- 15

- CR

- 1570

- 2016

ARGUED: November 20, 2019

DISSENTING O PINION

JUSTICE DONOHUE DECIDED: June 16, 2020

“It would be easy enough to let this case go. After all, sex offenders are one of the

most disfavored groups in our society.” Gundy v. United States

, ___ U.S. ___, 139 S. Ct.

2116, 2144 (Gorsuch, J., dissenting ). And it would be easy enough to put off our decision

for another day by remanding for further development of Torsilieri’s challenges to the

legislative finding that prompted the General Assembly to enact SORNA: that “[s]e xual

offenders pose a high risk of committing additional sexual offenses

. . . ” 42 Pa.C.S. §

9799.11(a)(4). I respectfully dissent from the learned Majority’s d isposition because a

remand is not necessary. The Commonwealth stipulated to the content but not validity

or relevance of three affidavits from experts retained by T orsilieri, which establish that

sexual offenders do not recidivate at anywhere near the rates accepted by the courts in

upholding registration laws. Despite having months to prepare for an evidentiary hearing[J

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on that point, the Commonwealth declined to pr esent any contrary evidence. The Majority

forgives “the Commonwealth’s tactics at the post

- sentence hearing that potentially

prevented the necessary development of the record” because Torsilieri bears a heavy

burden in challenging SORNA’s constitutionalit y. Majority Op. at 4 3

. Even accepting that

as a valid excuse, I would examine the sources raised in its reply brief. The

Commonwealth’s competing evidence agrees that the precedents reflexively accepting

the high degree of recidivism for sexual offenders as a guidepost for legal analysis about

these challenges are mistaken. Instead, the Commonwealth shifts to a different argument

to justify the revisions to SORNA , that sex crimes are underreported and th erefore the

true recidivism rate is unknown. While I do not doubt that sex crimes are underreported

for a variety of reasons, I would hold that due process precludes the General Assembly

from presuming that all persons convicted of one of the approximatel y thirty crimes

mandating registration pose a high risk of committing additional sexual offenses. As a

matter of due process, this is an unconstitutional irrebuttable presumption that implicates

the constitutional right to reputation. As SORNA already re quires individualized

assessments to determine whether the offender is a sexually violent predator (“SVP”)

, I

agree with Torsilieri that this existing procedure demonstrates that a reasonable

alternative exists to ascertain the relevant fact of risk of r eo ffending. I would thus affirm

the trial court.

The United States Supreme Court first addressed sexual offender registration laws

in Smith v. Doe , 538 U.S. 84 (2003), wherein it remarked that “ Alaska could conclude that

a conviction for a sex offense provides evidence of substantial risk of recidivism .” Id . at

103. To support this proposition, the Court quoted its decision in McKune v. Lile, 536[J

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U.S. 24, 34 (2002), to establish that “[t]he risk of recidivism posed by sex offenders is

‘frightening and high,’ ” and further noted that “ [w] hen convicted sex offenders reenter

society, they are much more likely than any other type of offender to be rearrested for a

new rape or sexual assault.” 536 U.S. at 33. See Commonwealth v. Williams , 832 A.2d

962, 979 (Pa. 2003) (noting that legislative findings in prior version of SORNA “are

consistent with grave concerns over the high rate of recidivism among convicted sex

offenders.”).

This Court has recognized that other evidence suggests the danger of recidivism

w as perhaps overstated by Smith . In Commonwealth v. Muniz

, 164 A.3d 1189, 1192 ( Pa.

2 017) (holding that SORNA violates the ex post facto clause of Pennsylvania

Constitution), we noted the existence of conflicting studies regarding recidivism rates

among sexual offenders when discussing whether SORNA promotes traditional aims of

punishment like deterrence and retribution. The Commonwealth a cknowledged that

SORNA has that effect but urged this Court to find SORNA non

- punitive because a

contrary conclusion “would undermine the state's ability to regulate offenders and the risk

of recidivism is too great a price to pay.” Id . at 1214. The Commo nwealth, as here, argued

that “because of contrasting studies and real recidivism concerns, this Court should be

wary of . . . contrary conclusions.” Id . at 1215. See also Commonwealth v. Butler

, ___

A.3d ____, 2020 WL 1466299, at *15 (Pa. Mar. 26, 2020) (describing an “apparent

conflict” regarding the recidivism rate among sexual offenders and whether registries are

effective in preventing recidivism). We have therefore acknowledged that SORNA may

sweep too broadly by saddling too many offenders with on erous registration obligations.

But we have to date insulated SORNA from such challenges on the grounds that the[J

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legislative branch properly resolves such policy questions. And it is easy enough to defer

to those findings, however questionable, given the visceral reaction to guarding the rights

of sexual offenders.

The validity of those findings was directly at issue in this case

, and t he

Commonwealth asks us to again disfavor those offenders by deferring to the General

Assembly’s policy judgments. I join the Majority’s refusal to do so a s I agree that Torsilieri

“poses colorable constitutional challenges to Revised Subchapter H’s registration and

notifica tion provisions” based upon his challenges to the determination that all sexual

offenders pose a high risk of recidivation and that SORNA’s tier

- based classification

system protects the public from those dangers. Majority Op. at 2 3. The Majority cogently

summarizes the research offered by Torsilieri attacking those two determinations:

Appellee first presents a body of research indicating that adult sexual offender recidivism rates have been improperly exaggerated, including through citations by this Court and the United States Supreme Court. As an example, he references the Courts’ rep eated declaration that sexual offenders have a “frightening and high” risk of recidivism, which in turn provided support for upholding various iterations of sexual offender registration systems. Appellee Brief at 17 (citing Smith , 538 U.S. at 103 (quoting McKune v. Lile , 536 U.S. 24, 34 (2002)));

see also Lee , 935 A.2d at 882. Appellee claims that this oft

quoted language derives not from rigorous scientific evidence but from an unsupported claim in “a 1988 National Institute of Corrections training manua l, which in turn cited a 1986 Psychology Today article written for a lay audience.” Appellee Brief at 17 (citing Ira Ellman and Tara Ellman, “Frightening and High”: The Supreme Court's Crucial Mistake About Sex

Crime Statistics , 30 Const. Comment. 495 (20 15)). He cites substantial recent evidence undermining this claim.

* * *

Nevertheless, we are unable to conclude based upon the record currently before this Court whether Appellee has sufficiently undermined the validity of the legislative findings

suppor ting Revised Subchapter H’s registration and[J

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- 5 notification provisions, especially in light of the contradictory scientific evidence cited by the Commonwealth during this appeal which may refute the Appellee’s experts. It is not the role of an appellate cou rt to determine the validity of the

referenced studies based on mere citations rather than allowing the opportunity for the truths to develop through a hearing on the merits of the evidence. Accordingly, a remand is appropriate to allow the parties to add ress whether a consensus has developed to call into question the relevant legislative policy decisions impacting offenders’ constitutional rights.

Id . at 23

- 24.

The Commonwealth stipulated to this evidence , including the conclusion that “ [t] he

simple fact is that the risk level, for nearly everyone on the registry, is nowhere near the

‘ frightening and high ’ rate assumed by Smith and McKune and all the later decisions that

rely on them. ” Ira Ellman & Tara Ellman, "Frightening and High": The S upreme Court's

Crucial Mistake About Sex Crime Statistics , 30 Const. Comment. 495, 507 (2015) . I find

that we have a sufficient record to dispense of these challenges one way or the other

, as

prior decisions have already given the Commonwealth the benefit of the doubt on th is

score. In Muniz

, we concluded that the prior version of SORNA was punitive

notwithstanding the existence of conflicting scientific evidence. Therefore, the lack of

c onsensus on the recidivism danger posed by sex offenders has already been construed

in the Commonwealth’s favor. Had this Court concluded in Muniz that the competing

studies go against the Commonwealth, the conclusion that SORNA was punitive would

have be en even stronger. I therefore reject the Majority’s suggestion that the trial court

failed to consider evidence contradicting Torsilieri’s experts. That point is already built

into our existing law, and in context

, the trial court’s order represents a legal conclusion

that the strength of Torsilie ri ’s evidence renders SORNA constitutionally repugnant.[J

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At this juncture, I note that Torsilieri presented arguments against SORNA under

both due process grounds and as cha llenges to the constitutionality of r evised Subchapter

H’s imposition of punishment. The trial court declared the statute unconstitutional both

facially and as

- applied to Torsillieri on all grounds. Placing the challenges into either

framework sets this Court down different paths here and on remand. In Muniz , we held

that SORNA violated the ex post facto clause of the Pennsylvania Constitution when

applied retroactively. In this case, Torsilieri had notice of his registration obligations

, as

he committe d his crimes after SORNA’s effective date. 1 If th ose obligations, including the

lifetime registration period, are construed as punishment then the SORNA requirements

may well be constitutionally permissible. I n Smith

, the United States Supreme Court held

that Alaska’s sexual offender registration statute was non

- punitive and could therefore be

applied retroactively. Justice Stevens filed a dissent, concluding that the requirements

were punitive in nature. Of note here , Justice Stevens opined that the obligations could

be imposed as part of the punishment for offenses committed after the statute’s

enactment :

I think it equally clear, however, that the State may impose

registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately ju stified by two of the traditional aims of punishment

— retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex of fenders and in the colloquy preceding the acceptance of a plea of guilty to such

1 I note for clarity’s sake that the applicable SORNA r equirements changed in between commission of the crime and sentencing. T hose changes are irrelevant to the notice issue because Torsilieri had notice of the penalties that were examined in Muniz

. Thus,

if the Commonwealth is correct that the obligations may be imposed on Torsilieri because

he had notice, any change in the law would work to his favor by lessening the obligations.[J

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- 7 an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses.

Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those co nvicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial.

538 U.S. at 114 (Stevens, J., dissenting) (emphasi s added).

These observations may be correct

, and as the Commonwealth explains

, the

United States Supreme Court has upheld statutory schemes that call for draconian

mandatory penalties. See

, e.g.

, Harmelin v. Michigan

, 501 U.S. 957, 961 (1991) (holding

that statute calling for mandatory life imprisonment without parole for possessing more

than 650 grams of cocaine did not constitute cruel and unusual punishment); Ewing v.

California , 538 U.S. 11 (2003) (upholding sentence of mandatory life imprisonment f or

theft of three golf clubs valued at $399 apiece under “three strikes” law). These schemes

are valid because the proportionality of the punishment to the offense is generally of no

constitutional concern. See Graham v. Florida , 560 U.S. 48, 59

– 60 (2010 ) (stating that

the controlling opinion in Harmelin “ concluded that the Eighth Amendment contains a

narrow proportionality principle ” ) (quotation marks and citation omitted). The common

example of a punishment that would violate the narrow proportionality principle is

“ma[king] overtime parking a felony punishable by life imprisonment,” Rummel v. Estelle

,

445 U. S. 263, 274 n.11 (1980).

Beyond those extreme cases, the exceptions to the rejection of assessing

proportionality between the crime and authorize d punishment appear limited to children[J

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and the death penalty. In Miller v. Alabama

, 567 U.S. 460 (2012), which held that

juveniles could not receive a sentence of mandatory life imprisonment without parole, the

Court rejected Harmelin as foreclosing relief. “ H armelin had nothing to do with children

and did not purport to apply its holding to the sentencing of juvenile offenders. We have

by now held on multiple occasions that a sentencing rule permissible for adults may not

be so for children. ” Id

. at 481

. As discussed infra , this division between children and

adults was invoked by this Court in the sexual offender context . There is thus reason to

believe that the lifetime registration punishments could be imposed as punishment for

sexual offenses committed by adults as a general matter. Whether revised Subchapter

H now qualifies as punishment is a matter of dispute in this case, bu t even if it is punitive

the obligations are plainly less restrictive than actual incarceration. Whatever may be

said of the wisdom of such laws, the host of obligations do not approach imposing a life

sentence for parking violations.

The Commonwealth a sks us to uphold the statute on the grounds that even if

revised Subchapter H is punitive it remains constitutional because the General Assembly

could have authorized registration obligations as criminal penalties

. 2 Had th e legislature

done so, such punis hments would doubtlessly be challenged on other grounds

, as

reflected in the parties’ competing arguments regarding whether, inter alia, the

punishments would be subject to the holding in Alleyne v. United States

, 570 U.S. 99

2 SORNA limits the trial judge’s role to one of informing the offender of his or her obligations, 42 Pa.C.S. § 9799.20, and nothing in the Sentencing Code authorizes the judge to impose SORNA obligations as part of the criminal sentence. 42 Pa.C.S. § 9721

. Thus, for SORNA obliga tions to qualify as a criminal sentence, we would have to hold that such obligations are authorized as implicit mandatory minimums that exist outside of the normal sentencing process.[J

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(2013) , that facts increasing the mandatory minimum sentence must be submitted and

proven to the fact

- finder beyond a reasonable doubt

.

I wou ld reject the notion that the trial court may be reversed on this basis by

crediting the General Assembly’s stated intent not to impose punishment. While I have

previously expressed skepticism on that point owing to the ev olution of the registration

laws to expand the focus from sexually violent predators to sexual offenders, see

Com monwealth v. Perez , 97 A.3d 747, 760

- 63 ( Pa. Super. 2014) (Donohue, J.,

concurring), the revisions set forth in Subchapter H were explicitly adopted to address our

decision in Muniz

. As the Majority observes, “the General Assembly has repeatedly

reenacted the unambiguous statement that the purpo se of the registration and notification

provisions ‘shall not be construed as punitive.’” Majority Op. at 30 (quoting 42 Pa.C.S. §

9799.11(b)(2)). The Commonwealth has likewise maintained throughout this litigation

that the requirements struck as unconst itutional by the trial court do not amount to

punishment. See A ttorney General’s Brief at 12 (“The General Assembly passed Acts 10

and 29 in direct response to Muniz and Butler , clarifying that the sex offender registration

provisions were non

- punitive co llateral consequences of the original conviction”); id . at 18

(“ Act 29 is not punitive and does not require a judge to determine additional facts. All that

is required is conviction for an enumerated offense. ”); id . at 23 (“ But mere collateral

consequences are not punishment. And committing any crime nearly always results in

lost opportunities.”). Accordingly, I would simply elect not to examine whether r evised

Subchapter H may be alternatively upheld as authorizing punishment. It is sufficient to

observe that the General Assembly has declined to take that route and we should not

authorize a punishment that the General Assembly declined to enact.[J

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Returning to any purpose to be served by a remand, the most favorable scenario

for the Commonwealth is that the trial court agrees that the scientific evidence points in

both directions. As discussed, Muniz already gave the Commonwealth the benefit of that

doubt. Thus, giving the Commonwealth another opportunity to present more eviden ce on

that point would almost certainly not change the outcome. The Majority opines it is

possible that the trial court’s determination that Subchapter H is punitive may change

based on reweigh ing several of the Mendoza

- Martinez 3 factors that govern wheth er a

statute is so punitive in effect as to negate the stated intent to establish a civil scheme. I

need not belabor my disagreement with the Majority on some of these points. I observe

only that if the trial court concludes on remand that SORNA is punit ive, we will still be

required to address the Commonwealth’s claim that the obligations may be imposed

nonetheless because Torsilieri had notice of the penalties . Accordingly, a remand is likely

to cause unnecessary delay as we will have to resolve the punishment question.

As stated, I believe that the trial court should be affirmed . For these purposes, I

assume arguendo that Subchapter H is non

- punitive. As urged by Torsilieri I would

extend the holding of In re J.B.

, 107 A.3d 1 ( Pa. 2014) , to adult offenders . In J.B. , the

parties had stipulated to research “ indicat [ing] that recidivism rates for juvenile sex

offenders are far lower than the recidivism rates of adult sexual offenders and, instead,

are comparable to non

- sexually offending juveniles. ” Id

. at 10 . The trial court found that

the statute violated due process because it applied an irrebuttable presumption “ that the

adjudication of a specified sexual crime equates to high risk of recidivism requiring

registration .” Id

. The irrebuttable presumption doctrine requires three conditions : (1)

3 Kennedy v. Mendoza

– Martinez , 372 U.S. 144 (1963)

.[J

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whether there is an interest protected by the due process clause encroached by an

irrebuttable presumption; (2) whether the presumption is universally true; and (3) whether

a reasonable alternative means exists for ascertaining the presumed fact. Id . at 15

- 16.

We found that the first criterion was met as to juvenile offenders . SORNA is

“ premised upon the presumption that all sexual offenders pose a high risk of recidivating,

[which] impinge [s] upon juvenile offenders' fundamental right to reputation as protected

under the Pennsylvania Constitution. ” Id . at 17. Second, the presumption is not

universally t rue. For that conclusion we relied upon the stipulated studies establishing

that juveniles who commit sexual offenses do so due to impulsivity and sexual curiosity,

traits which diminish with age. The J.B. Court co ntrasted juveniles to adults on that poi nt:

“ While adult sexual offenders have a high likelihood of reoffense, juvenile sexual

offenders exhibit low levels of recidivism (between 2

– 7%), which are indistinguishable

from the recidivism rates for non

- sexual juvenile offenders, who are not subject t o SORNA

registration. ” 4 Id

. We also cited Miller

, supra, as establishing that juveniles are

fundamentally different than adults. Finally, addressing whether an alternative process

could be used to establish the requisite fact of likely recidivism, we stated that one already

exists. “ A reasonable alternative, in fact, is already in use in Pennsylvania under SORNA.

As discussed supra

, SORNA provides for individualized assessment for all sexual

offenders

. . . for designation of sexually violent predators. ” Id

. at 19 (internal citation

4 One of Torsilieri’s sources noted that our comparison wa s mistaken because it

“ compares juveniles to all adults, making no distinction among adult registrants. The Hanson study finds the re

- offense rate for low and moderate

- risk offenders, who probably

acc ount for most adults on the registry, is within the same 2

- 7% range the court attributes to juveniles. ” Ira Ellman & Tara Ellman, "Frightening and High": The Supreme Court's

Crucial Mistake About Sex Crime Statistics , 30 Const. Comment. 495, 507 (2015)

.[J

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omitted). We concluded that “ [a] similar process could be utilized to assess which juvenile

offenders are at high risk to recidivate .” Id

.

The Commonwealth avers that J.B. should not apply because the requisite due

process concerns were satisfied by Torsilieri’s conviction at trial. I am aligned with the

Majority’s apparent rejection of the claim that SORNA obligations may be imposed as

collateral consequences stemming from the conviction itself. That question relates back

to some degree to the question of whether Subchapter H remains punitive because the

determination of whether obligations are civil often arises, as in Muniz itself, in tandem

with the question of whether the requirements may be applied retroactively. See e.g.

,

Lehman v. Pennsylvania State Police , 839 A.2d 265, 270 (Pa. 2003) (upholding denial of

firearm purchase based on application of regulation enacted well after disqualifying

conviction; “the issue becomes whether the civil disability imposed on appellant

— the

inability to purchase firearms

— constitutes punishment.”). See also Muniz , 164 A.3d at

1238 n.6 (Saylor, C.J., dissenting) (“Although the Mendoza

– Martinez factors are the

prevailing framew ork for determining the punitive effect of a statutory enactment, a

number of scholars and jurists have expressed significant reservations with their use

relative to assessing collateral consequence laws, such as SORNA .” ) (collecting

commentary). The Gene ral Assembly may lawfully impose civil consequences due to a

conviction and such claims are not thought to implicate the irrebuttable presumption

doctrine. Thus, for example, “loss of driving privileges is a civil collateral consequence of

a conviction fo r underage drinking[.]” Commonwealth v. Duffey , 639 A.2d 1174, 1176

(Pa. 1994). And the validity of imposing those consequences does not require proof that

the establishment of one fact (e.g. underage drinking) bears on the consequence of the[J

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other (i.e. a person convicted of underage drinking is a dangerous driver). The conviction

is enough. I therefore find it significant that J.B. applied the irrebuttable presumption

doctrine without assessing whether SORNA constituted punishment

. J.B. , 107 A.3d at

12 n.21 (“ The Commonwealth additionally contests the trial court's determinations that

SORNA is violative of the ex post facto clause

. . . . As we find SORNA unconstitutional

based upon its use of an irrebuttable presumption, we do not recite the Commonw ealth's

arguments on the other constitutional issues. ”). The inescapable conclusion drawn from

J.B. is that SORNA unconstitutionally impaired juveniles’ constitutional right to reputation.

While collateral consequences may infringe on rights, infringemen t of the constitutional

right to reputation requires a corresponding greater justification

. We explained the

magnitude of the right to reputation in In re Fortieth Statewide Investigating Grand Jury

,

197 A.3d 712, 715 (Pa. 2018) :

In our prior opinion authored by Chief Justice Saylor, we

stressed that an individual's right to his or her personal reputation was regarded by the framers of our organic charter as a fundamental individual human right

— one of the “inherent rights of mank ind.” Grand Jury I, 190 A.3d at 573. For that reason, throughout our Commonwealth's history, it

has been accorded the same exalted status as other basic individual human rights, such as freedom of speech, freedom of assembly, and freedom of the press. Th us, as with all legal proceedings which affect fundamental individual rights, the judicial branch serves a critical role in guarding against unjustified diminution of due process protections for individuals whose right of reputation might be impugned.

Id

. at 715 (footnot e omitted).

Along these same lines the Commonwealth also suggests that applying In re J.B.

to adult offenders would conflict with the United States Supreme Court’s decision in

Connecticut Dep’t of Public Safety v. Doe

, 538 U.S. 1 (2003), decided the same day as[J

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Smith and reject ing a similar due process challenge as raised here. Doe, who was

convicted of a sexual offense, argued that Connecticut’s registration and publicization of

his information “deprive[d] him of a liberty interest

— his reputation combined with the

alteration of his status under state law

— without notice or a meaningful opportunity to be

heard.” Id

. at 6 (citati on omitted). The Court of Appeals agreed with Doe that due process

required a hearing to determine whether or not Doe was likely to be currently dangerous

as a condition of registration. Id

. The Court reversed, finding that dangerousness was

not relevan t to the statutory scheme and therefore no hearing was needed. Accordingly,

t he fact Doe sought to establish would make no difference. “[E] ven if respondent could

prove that he is not likely to be currently dangerous, Connecticut has decided that the

reg istry information of al l sex offenders

— currently dangerous or not

— must be publicly

disclosed. ” Id

. at 7.

The Attorney General suggests that J.B. would have come out the other way had

this Court addressed Doe

. The Attorney General argues that we “assumed that the policy

judgment that sexual offenders, as a cohort, pose a risk of recidivating was material to

the structure of SORNA. Respectfully, it was not. ” Attorney General’s Brief at 39. More

significantly, the Attorney General states that in J.B. we were “neither presented with, nor

addressed, [ Doe ]. Had it done so, this Court would have determined that, like

Connecticut

, an individualized assessment of future dangerousness was not material to

the statutory scheme in SORNA and, thus, the I rre buttable P resumption D octrine did not

apply.” Id

.

The Majority properly rejects this premise. The J.B. Court found that recidivation

was the lynchpin of SORNA. Absent overruling J.B. , I submit that we are required to[J

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- 15

follow its ascertainment of legislative intent

. Therefore, with respect to the first factor,

SORNA infringes upon the protected interest of reputation

. 5

As to whether that presumption is universally true

, w e have not applied this

requirement literally; the existence of even one ex ception to the presumed fact would

definitionally establish a lack of universality. Thus, the government seems to be given

some leeway based on the strength of countervailing governmental interest s

.

Unsurprisingly, the Commonwealth asks this Court to hol d that the presumption is

universally true simply because the General Assembly says it is so. “The General

5 The High Court in Doe stated, “ even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a

fact that is not material under the Connecticut statute. ” 538 U.S. at 7. Thus, the Court found that the deprivation of a protected liberty interest would not have mattered.

I do not perceive that extending J.B. to adult offenders would conflict with Doe . Related to this point, the Majority declines to determine whether the irrebuttable presumption

doctrine should be examined under substantive due process or procedural due process principles, citing our statement in DOT, Bureau of Driver Licensing v. Clayton

, 684 A.2d
1060, 1066 (Pa. 1996),“we d o not believe it wise to pigeon hole whether an analysis of an irrebuttable presumption is solely one of substantive or procedural due process .” The

Doe Court remarked that the offender’s claim “is actually a substantive challenge . . . recast in procedural due process terms.” 538 U.S. at 8 (quotation marks and citation omitted). But Doe “expressly disavow[ed] any reliance” on substantive due process. Id

. Justice Scalia’s concurring opinion remarked that even if the law implicated liberty

interests

, the categorical abrogation by a valid statute satisfied due process, just as a law stating that no one under sixteen years of age may drive validly takes away that right regardless of whether someone younger could show they were a safe driver. Thus,

abse nt a claim “ that the liberty interest in question is so fundamental as to implicate so

called ‘ substantive ’ due process, a properly enacted law can eliminate it. ” Id . at 8 (Scalia, J., concurring). The Commonwealth suggests that the same outcome applies here , and the conviction validly eliminated the right to reputation

.

Under the circumstances

, we need not address the Commonwealth ’ s position that strict scrutiny i s inapposite to deprivations of a criminally

- convicted citizen ’ s right to reputation. Attorney General ’ s Brief at 47

. As in J.B.

, it is the fundamental nature of the reputational

interest

, which has no analog in the United States Constitution, that is harmed by the

irrebuttable presumption created by SORNA that justifies our departure fro m Doe

.[J

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- 16

Assembly, as a matter of policy, has determined that convicted sexual offenders as a

cohort pose a particular danger to the public. Given the nature of these legislative

findings, they should be accepted as true.” Attorney General’s Brief at 17.

It is true that the legislature determined that sexual offenders “pose a particular

danger,” but this argument overlooks that the finding of dangerousness derives from the

likelihood of recidivism. The Commonwealth’ s sources agree with Torsilieri's expert

repor ts that the recidivism concerns cited as justifying these laws are overstated. "There

is, obviously, a substantial gulf between the sexual recidivism rates observed in the

empirical studies and the rates supposed by the laity and endorsed by the Supreme

C ourt." Drs. Nicolas Scurich and Richard John, “The Dark Figure of Sexual Recidivism,”

University of California Irvine, School of Law, Legal Studies Research Paper Series No.

2019

- 09

, at 4 ( https://ssrn.com/abstract=3328831 (Feb. 4, 2019)). Having established

that the General Assembly’s legislative findings regarding recidivism rates are not

supported

, we cannot accept the universality of the presumption.

Of course, the General Assembly must be given some leeway in this arena given

the public inter est involved in protecting the community from sexual offenders

. However,

I have long criticized SORNA for casting too wide a net

. “While it is true that public safety

is a paramount governmental interest, the progressively rigid conditions imposed upon

s exual offenders necessarily labels a broad number of people as high

- risk recidivists

without any means of proving otherwise.” Perez

, 97 A.3d at 761

– 762 (Donohue, J.,

concurring). Torsilieri’s research establishes that the risk of recidivism has been

exaggerated across

- the

- board and proves that revised Subchapter H unjustifiably labels

too many offenders as high

- risk recidivists.[J

- 104

- 2019] [MO: Baer, J.]

- 17

None of this is to say that the General Assembly cannot craft legislation properly

tailored to the governmental interests. Our recent decision in Butler

, supra

, which

reversed the Superior Court’s decision holding that the SVP designation process was

unconstitutional because it permitted the imposition of punitive measures by a clear and

convincing evidence standard, highlights that the threat posed by properly

- identified

classes of offenders is highly relevant. We concluded:

Although we recogniz e the RNC requirements impose affirmative disabilities or restraints upon SVPs, and those requirements have been historically regarded as punishment, our conclusions in this regard are not dispositive on the larger question of whether the statutory require ments constitute criminal punishment. This is especially so where the government in this case is concerned with protecting the public, through counseling and public notification rather than deterrent threats, not from those who have been convicted

of certa in enumerated crimes, but instead from those who have been found to be dangerously mentally

ill

. Hendricks , 521 U.S. at 362

- 63, 117 S.Ct. 2072. Under the circumstances, and also because we do not find the RNC requirements to be excessive in light of the he ightened public safety concerns attendant to SVPs, we conclude the RNC requirements do not constitute criminal punishment.

Butler

, 2020 WL 1466299 at *15 (emphasis added).

Butler is not directly on point as the question there was whether SVP obligations

constitute punishment, whereas the irrebuttable presumption doctrine involves civil

consequences. Nevertheless, there is a clear relationship between the danger posed by

a particu lar class of persons

, like SVPs in Butler

, and how far the General Assembly may

go in imposing regulatory measures. The SVP designation process resulted from a

particular finding as opposed to the mere fact of conviction

, while the Commonwealth

argues tha t the conviction alone justifies imposing registration requirements.[J

- 104

- 2019] [MO: Baer, J.]

- 18

The time has come for this Court to recognize that a consensus will never exist on

the question of whether sexual offenders pose a danger of recidivism because different

types of offenders pose different types of risks. The Commonwealth now directs our

at tention to underreporting of sexual crimes as a general matter, and claims that the

Subchapter H requirements “are not based upon an individualized assessment of the

continuing dangerousness of any particular sex offender or how likely they are to reoffend

.

These items are both unknowable .” Attorney General’s Brief at 38 (emphasis added).

It may well be that the continuing dangerousness of any particular offender or how likely

they are to reoffend is unknowable as a matter of empirical fact. But that ha rdly justifies

a legal conclusion that the General Assembly can simply treat all offenders as if they are

highly likely to recidivate despite evidence to the contrary

.

We can also hardly ignore that the statutory scheme singles out sexual offenders

as a class. That group of individuals is deemed by the General Assembly to present

special risks that justify treating them differently from all o ther types of offenders. Bu t the

relevant question should not be whether convicted sexual offenders are committing

unreported sexual crimes, but rather whether sexual offenders commit more sexual

crimes than other groups not subject to similar registration laws. The sole justificat ion for

singling out convicted offenders is because their recidivism rates are purportedly so high.

That finding having been debunked, the Commonwealth has shifted the goalposts by

urging this Court to accept that the real rate of recidivism is unknown si nce so many

crimes are underreported or otherwise fail to result in an arrest or conviction. Even

granting the questionable proposition that the unknown could justify onerous registration

laws

, the Commonwealth does not explain why we should conclude that convicted sexual[J

- 104

- 2019] [MO: Baer, J.]

- 19

offenders are any more likely to commit new sexual offenses than other populations of

offenders. I acknowledge that c laims that the true rate of recidivism is unknowable

because sexual crimes are underreported arguably justifies treating all sexual offenders

as likely to reoffend. But that point cuts both ways: the specter of underreported crimes

means that offenders convicted of non

- sexual offenses also pose a threat of committing

sexual offenses. The Commonwealth fails to establish th at the population of offenders

who are convicted of sexual crimes requiring registration are any more likely to recidivate

than any other population of offenders. Nor does the Commonwealth offer any discussion

of what percentage of sex offenses are commit ted by first

- time offenders , or address

whether a small number of offenders are disproportionately responsible for repeat crimes.

Given that the Commonwealth defines the true rate of recidivism with reference to

crimes that are underreported, we can acce pt that it is forever unknowable to the General

Assembly or the judicia ry what the true rate of recidivism is. But then the question

becomes whether the Commonwealth, consistent with due process, can nonetheless

deprive individuals of their constitutional rights to reputation based solely on a conviction

.

Because there is an alternative means to ascertain whether a particular offender is likely

to reoffend

, a conviction alone cannot support the infringement

. As in J.B. , I would hold

that the individualiz ed SVP assessment procedure can be expanded to include

consideration of t he likelihood of re

- offense

. Every offender who commits a SORNA

crime is assessed by the Sexual Offenders Assessment Board (“SOAB”)

. SORNA

defines a “s exual offender” as “ [a] n indiv idual who has committed a sexually violent

offense. The term includes a sexually violent predator.” 42 Pa.C.S. § 9799.12. “Sexually

violent offense,” in turn, is “ [a] n offense specified in section 9799.14 (relating to sexual[J

- 104

- 2019] [MO: Baer, J.]

- 20

offenses and tier system) as a Tier I, Tier II or Tier III sexual offense committed on or after

December 20, 2012, for which the individual was convicted.” Id

. And the tier system

outlined in section 9799.14 comprises only three tiers

. Thus

, any offense that carries

SORNA obligatio ns is considered a sexually violent offense. However, while all sexual

offenders are deemed sexually violent, only a subset are sexually violent predators.

“Predatory” is separately defined as “ [a] n act directed at a stranger or at a person with

whom a r elationship has been initiated, established, maintained or promoted, in whole or

in part, in order to facilitate or support victimization.” 42 Pa.C.S. § 9799.12.

To qualify as an SVP, the SOAB must determine that the offender has “ a mental

abnormality o r personality disorder that makes the individual likely to engage in predatory

sexually violent offenses.” Id . Mental abnormality is defined as “ [a] congenital or acquired

condition of a person that affects the emotional or volitional capacity of the person in a

manner that predisposes that person to the commission of criminal sexual acts to a

degree that makes the person a menace to the health and sa fety of other persons. ” Id

.

The S OAB’s assessment process entails an assessment that considers a large set

of information, including whether the offender “exceeded the means necessary to achieve

the offense,” the relationship of the victim to the offend er, the age of the victim, whether

the incident involved “unusual cruelty,” any prior offense history, and the characteristics

of the individual offender . 42 Pa.C.S. § 9799.24(b)(1

- 3). Significantly

, the procedure also

requires the SOAB to consider “ [f] a ctors that are supported in a sexual offender

assessment field as criteria reasonably related to the risk of reoffense. ” 42 Pa.C.S. §

9799.24(b)(4).[J

- 104

- 2019] [MO: Baer, J.]

- 21

Taken together, the SOAB already considers a wide range of information, including

the requirement that t he experts employed by the State to serve on the SOAB use factors

“reasonably related to the risk of reoffense” as accepted in their field. The Commonwealth

offers no reason whatsoever why the expertise of such individuals is not a reasonable

alternative to SORNA’s overinclusive reach. 6 See In re J.B. , 107 A.3d at 10 n .16 (“ We

recognize that the Commonwealth stipulated that the Juveniles' experts would testify

consistently with their research, which does not necessarily entail accepting the

underlying re search. Nonetheless, the Commonwealth neither provides a substantive

critique of this research nor produces any contrary empirical evidence .” ). The

Commonwealth offers no response to Torsilieri’s argument that the SOAB is not only well

equipped to make su ch assessments, but has in fact suggested that process:

There are well

- established risk assessment tools which are already employed in Pennsylvania. Pennsylvania's SOAB,

the body created and charged by the Legislature to perfo rm the SVP assessments, 42 Pa .C.S. §§ 9799.24, 9799.35,

declared over a decade ago that "actuarially derived"

assessments are available and preferable to determine risk

for monitoring those convicted of sexual crimes. SOAB,

Containment Model, supra, at 192

- 208. The SOAB can "distingu ish between low

- risk and high

- risk sex offenders" and Pennsylvania's failure to do so "wastes resources" when

"most sex offenders are never reconvicted for a sexual

offense." Id

. at 207. In no uncertain terms, the SOAB demanded that "[s]tructured, actuaria l instruments should be routinely used." Id

.

Torsilieri’s Brief at 56

- 57.

6 On some level, the fact that an SVP assessment returns a fi nding that the individual is not an SVP, as is the case here, implicitly rebuts SORNA’s irrebuttable presumption that all offenders are likely to recidivate . Whether an offender is likely to reengage in sexual offenses because of a mental abnormality or personality disorder (and therefore subject to an SVP finding) or due to some reason not falling within that construct would seem to

be entire ly irrelevant to the danger posed to the public.[J

- 104

- 2019] [MO: Baer, J.]

- 22

Th is individualized process is superior to the existing scheme , which crudely

separate s sexual offenses into escalating tiers of severity that results in unjustifiably

treat ing all offenses the same. For example, r ape is a Tier III offense, but the crime of

rape encompasses the rape of a child as well as sexual encounters between intoxicated

individuals that involve disputed questions of consent. Treating the former the same as

the latter is simply untenable. We need not, and should not, diminish Torsilieri ’ s conduct

.

But we should not also overlook that Torsilieri’s Tier III obligations are the same as those

of a child rapist when determining whether due process has been viol ated . Once it is

accepted that sexual offenders do not recidivate at the incredibly high rates as previously

supposed

, the justification for treating the two alike dissipates. Th e existence of a

superior procedure that can make individual determinations demonstrates the availability

of a reasonable alternative to the existing scheme.

For the foregoing reasons, I would affirm the trial court.