[J-121B-2016] [OAJC: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JOSE M. MUNIZ,

Appellant

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No. 47 MAP 2016

Appeal from the Order of the Superior 

Court at No. 2169 MDA 2014 dated 

August 7, 2015 Affirming the Order of 

the Court of Common Pleas of 

Cumberland County, Criminal Division, 

at No. CP-21-CR-0000903-2006 dated 

October 14, 2014.

ARGUED: December 6, 2016

CONCURRING OPINION

JUSTICE WECHT DECIDED: July 19, 2017

I agree that the retroactive application of Pennsylvania’s Sex Offender 

Registration and Notification Act (“SORNA”) violates Article I, Section 17 of the 

Pennsylvania Constitution. I do not agree that “Pennsylvania’s ex post facto clause 

provides even greater protections than its federal counterpart.” See Opinion 

Announcing the Judgment of the Court (“OAJC”) at 55. 

The Pennsylvania Constitution prohibits the General Assembly from enacting ex 

post facto laws, one type of which are laws that retroactively increase the punishment 

for a particular crime. See Calder v. Bull, 3 U.S. 386, 390 (1798); Commonwealth v. 

Kalck, 87 A. 61, 62 (Pa. 1913). To determine whether a specific law inflicts a 

punishment, this Court traditionally has used the United States Supreme Court’s intenteffects test. See Smith v. Doe, 538 U.S. 84, 92-102 (2003) (applying the intent-effects 

test in the ex post facto context); Lehman v. Pa. State Police, 839 A.2d 265, 271-74

(2003) (same). Under that framework, as the lead opinion explains, we first determine
[J-121B-2016] [OAJC: Dougherty, J.] - 2

whether the General Assembly meant to impose a punishment. Smith, 538 U.S. at 92. 

If so, our inquiry ends there. But if the General Assembly instead sought to create a

civil (non-punitive) regulatory scheme, we turn to Smith’s second prong, under which we 

consider whether the law is “so punitive either in purpose or effect as to negate [the 

legislature’s] intention to deem it civil.” Id. (quoting United States v. Ward, 448 U.S. 

242, 248-49 (1980) (internal quotation marks omitted)). In making this assessment, the 

seven Mendoza–Martinez1factors serve as “useful guideposts,” Hudson v. United 

States, 522 U.S. 93, 99 (1997), but they are “neither exhaustive nor dispositive.” Ward,

448 U.S. at 249. 

The lead opinion begins its analysis of SORNA using the intent-effects 

framework and concludes that the General Assembly intended to create a non-punitive

statutory scheme. See OAJC at 27-29. The lead opinion then goes on to find that 

SORNA’s punitive effect is so overwhelming that it negates the General Assembly’s 

intent. See OAJC at 29-45. Because I agree with both of these conclusions, I also 

agree that SORNA (as applied to Muniz) violates Article I, Section 17 of the 

Pennsylvania Constitution.2 

 

1 See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). 

2

I would resolve this case on state constitutional grounds, and decline to address

Muniz’s claim that SORNA also violates the ex post facto clause of the United States 

Constitution. The lower federal courts disagree as to whether sex-offender registration 

laws violate the federal ex post facto clause, and the United States Supreme Court may 

accept review of one such dispute in the coming months. Does #1-5 v. Snyder, 834 

F.3d 696 (6th Cir. 2016), petition for cert. filed, 2016 WL 7335854 (U.S. Dec. 14, 2016) 

(No. 16-768); see Snyder v. Does #1-5, 580 U.S. ___, 137 S.Ct. 1395 (U.S. Mar. 27, 

2017) (inviting the Acting Solicitor General to file a brief expressing the views of the 

United States). Under these circumstances, I would simply hold that SORNA violates 

Article I, Section 17 of the Pennsylvania Constitution—a determination for which this 

Court is the final arbiter. Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“If a state court 

chooses merely to rely on federal precedents as it would on the precedents of all other 

jurisdictions, then it need only make clear by a plain statement in its judgment or opinion 

that the federal cases are being used only for the purpose of guidance, and do not 

(continued...)
[J-121B-2016] [OAJC: Dougherty, J.] - 3

Rather than stop here, the lead opinion goes one step further and concludes that 

the ex post facto clause of the Pennsylvania Constitution provides greater protection 

than its federal counterpart. As I explore in more detail below, there is little textual or 

historical support for this conclusion, and this Court’s Article I, Section 17 decisions 

make the lead opinion’s reasoning even less tenable. Thus, I simply would reiterate 

here what this Court has said many times before: the United States Supreme Court’s 

interpretation of the federal ex post facto clause is entirely consistent with our 

understanding of Pennsylvania’s clause. See Commonwealth v. Young, 637 A.2d 1313, 

1317 n.7 (Pa. 1993).

To determine whether a particular provision of the Pennsylvania Constitution 

protects individual liberty to a greater extent than an analogous clause in the United 

States Constitution, we must evaluate: (1) the text of the Pennsylvania constitutional 

provision; (2) the history of the provision, including Pennsylvania case law; (3) related 

case law from other states; and (4) policy considerations, including unique issues of 

state and local concern. Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991).

I. Text

In addressing the first Edmunds factor, we must compare the text of Article I, 

Section 17 of the Pennsylvania Constitution with that of Article I, Section 10 of the 

United States Constitution.3 The former provides that “[n]o ex post facto law, nor any 

law impairing the obligation of contracts, or making irrevocable any grant of special 

 

(...continued)

themselves compel the result that the court has reached.”); Mullaney v. Wilbur, 421 U.S. 

684, 691 (1975) (“[S]tate courts are the ultimate expositors of state law.”). 

3

The United States Constitution has two provisions that prohibit ex post facto 

laws: one that restricts Congress (Article I, Section 9) and one that applies to the 

several states (Article I, Section 10). 
[J-121B-2016] [OAJC: Dougherty, J.] - 4

privileges or immunities, shall be passed.” PA. CONST. art. I, § 17. Similarly, the latter 

directs that “[n]o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law 

impairing the Obligation of Contracts . . . .” U.S. CONST. art. I, § 10. In other words, as 

the lead opinion observes, the current text of Article I, Section 17 is nearly identical to its 

federal counterpart. OAJC at 49. 

Of course, identical language alone does not necessarily indicate identical 

meaning. Edmunds, 586 A.2d at 895-96 (“[W]e are not bound to interpret the two 

[constitutional] provisions as if they were mirror images, even where the text is similar or 

identical.”). So a thorough examination of the history of the two provisions is necessary. 

II. History

To say that the rejection of ex post facto laws is of early lineage would be an 

understatement. A presumption against such legislation was recognized in both the 

Napoleonic Code and the Roman law codification of the Emperor Justinian. Kaiser 

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring) 

(“The principle that the legal effect of conduct should ordinarily be assessed under the 

law that existed when the conduct took place has timeless and universal human 

appeal.”) (citing, inter alia, Justinian Code, Book 1, Title 14, § 7 and 1 Code Napoleon, 

Prelim. Title, Art. I, cl. 2 (B. Barrett trans. 1811)). And the great authorities on British 

common law considered ex post facto laws to be void in and of themselves. 1 WILLIAM 

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *46 (stating that ex post facto

laws are “cruel and unjust”); Calder, 3 U.S. at 391 (discussing the similar views of

Blackstone’s successor, Richard Wooddeson). The Framers, too, had little regard for 

ex post facto laws. Madison considered them to be “contrary to the first principles of the 

social compact and to every principle of sound legislation,” THE FEDERALIST NO. 44, at 

282 (James Madison) (Clinton Rossiter ed., 1961), and Hamilton described them as “the 
[J-121B-2016] [OAJC: Dougherty, J.] - 5

favorite and most formidable instruments of tyranny.” THE FEDERALIST NO. 84, at 512 

(Alexander Hamilton) (Clinton Rossiter ed., 1961).

4

 

Both the historical record and the Constitution’s text show that the other 

delegates to the Constitutional Convention shared Madison and Hamilton’s hostility to

ex post facto laws. Sure, some of the delegates opposed Sections 9 and 10 of Article I. 

But they did so on the belief that ex post facto laws were so unmistakably void that 

explicitly prohibiting them would “impl[y] an improper suspicion” of the legislature. See

Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1157-

58 (1987) (quoting James Madison’s notes from the Federal Convention of 1787). In 

the end, those views did not prevail. The convention’s final draft included two ex post

facto clauses—a testament to the fact that the Framers “viewed, with some 

apprehension, the violent acts which might grow out of the feelings of the moment.” 

Fletcher v. Peck, 10 U.S. 87, 137-38 (1810). 

After the ratification of the United States Constitution, the citizens of this

Commonwealth adopted the Pennsylvania Constitution of 1790. That charter, much like 

the United States Constitution, included a clause forbidding the enactment of ex post 

facto laws. As this Court has said in the past, the “same pre-revolutionary-war 

concerns” that influenced the Framers of the United States Constitution also shaped 

Pennsylvania’s ex post facto clause. See Commonwealth v. Gaffney, 733 A.2d 616, 

621 (Pa. 1999); OAJC at 51. 

 

4

The Framers’ hostility toward ex post facto laws grew from the British 

Parliament’s practice of enacting “bills of attainder” and “bills of pains and penalties,” 

some of which would retroactively declare innocent acts to be criminal, while others 

would simply increase the punishment for past offenses. Calder, 3 U.S. at 389 (stating 

that the ex post facto clause “very probably arose from the knowledge . . . that the 

Parliament of Great Britain claimed and exercised a power to pass such laws”). 

Parliament justified these laws by insisting that they were necessary to preserve “the 

safety of the kingdom.” Id. 
[J-121B-2016] [OAJC: Dougherty, J.] - 6

The 1790 ex post facto clause was a bit more concise than the present-day 

version. It provided simply that “[n]o ex post facto law, nor any law impairing contracts,

shall be made.” PA. CONST. of 1790, art. IX, § 17. Later, the delegates to the 

Constitutional Convention of 1873 proposed (and the electorate approved) minor 

revisions to that language—substituting the verb “passed” in the place of the word 

“made” and adding the phrase “the obligation of” before the word “contracts.” These

changes are modest, and they seem to reflect little more than a desire to mirror

language used in the United States Constitution. 

Indeed, records from the 1873 Convention reveal that the amended clause’s 

resemblance to the federal ex post facto clause was no coincidence. See 5 DEBATES OF 

THE CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 631 (1873) (remarks of 

Charles R. Buckalew, suggesting that the clause “was intended to follow the language 

of the Constitution of the United States,” and questioning whether some words “were 

dropped out by accident”); id. (remarks of Thomas MacConnell, chairman of the 

Committee on the Bill of Rights, agreeing that the clause should “conform[ ] to the 

national Constitution”); id. (another delegate, Wayne MacVeagh, correctly predicting

that “the desire to harmonize this instrument with the Constitution of the United States 

will prevail”). The same records confirm that the delegates were familiar with the 

prevailing judicial interpretation of the United States Constitution’s ex post facto clause. 

3 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 28, 30 

(1873) (discussing various judicial decisions, including Calder v. Bull). Yet, the 

Convention vetoed a proposal to expand the scope of our clause beyond the limits that 

courts had established. 5 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF 

PENNSYLVANIA 313-14 (1873) (rejecting a provision that would have barred all retroactive 

legislation, whether civil or criminal). 
[J-121B-2016] [OAJC: Dougherty, J.] - 7

Despite this compelling evidence that Pennsylvania’s ex post facto clause means 

the same thing that the federal clause does, the lead opinion concludes that this

Edmunds factor “militates in favor of holding the Pennsylvania clause is even more 

protective than its federal counterpart.” OAJC at 52. Citing an amicus brief authored by 

the Defender Association of Philadelphia and the Pennsylvania Association of Criminal 

Defense Lawyers, the lead opinion finds that the “location of Pennsylvania’s clause 

within the Declaration of Rights lends considerable force to the argument it provides 

even more protection than its federal counterpart.” Id. at 48. As I understand it, the gist 

of amici’s argument on this point is that Pennsylvania’s ex post facto clause must reach

further than the federal cause because it falls within our charter’s enumerated “rights 

reserved and retained by the people,” whereas “[t]he federal clause is not contained 

within the Bill of Rights.” Brief for Defender Association & PACDL at 37. 

Amici’s theory bases too much upon too little. The reason that the federal clause 

does not appear in the Bill of Rights is that the clause predates the Bill of Rights.5 In 

any event, I fail to see why the Bill of Rights—a collection of amendments that did not 

limit the power of state governments until after the ratification of the Fourteenth 

Amendment—would have been a more logical home for a provision that restricts the 

legislative power of the states. If anything, the presence of a substantive restriction on 

state police powers in Article I underscores that the Framers regarded the prohibition on 

ex post facto laws as an important “bulwark in favor of personal security and private 

rights.” THE FEDERALIST NO. 44, at 301 (James Madison) (Clinton Rossiter ed., 1961).

 

5

It is important to remember that the original Constitution purposely did not 

enumerate individual rights, since some delegates worried that such a list would be 

construed to deny the public any unexpressed rights. Richmond Newspapers, Inc. v. 

Virginia, 448 U.S. 555, 579 (1980). 
[J-121B-2016] [OAJC: Dougherty, J.] - 8

The lead opinion also asserts that this Court has “noted divergence between” the 

state and federal ex post facto clauses in the past. OAJC at 51. Specifically, the lead 

opinion highlights language from Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007), 

which suggests that the seventh Mendoza–Martinez factor, standing alone, could justify 

the conclusion that a sanction is punitive. Id. at 876 n.24 (stating in dicta that “a 

showing of sufficient excessiveness in Megan’s Law II’s [registration, notification, and 

counseling] provisions might warrant a finding that those provisions are punitive”). The

lead opinion evidently views this to be in conflict with the United States Supreme Court’s 

oft-quoted warning that “no one [Mendoza–Martinez] factor should be considered 

controlling as they ‘may often point in differing directions.’” Hudson, 522 U.S. at 101 

(quoting Mendoza-Martinez, 372 U.S. at 169). In my view, however, there is little 

tension between these two instructions.

As an initial matter, I fail to see how a court could ever conclude that a particular 

sanction is “excessive in relation to the alternative purpose assigned” (the seventh 

factor) without first identifying some “alternative purpose to which [the sanction] may 

rationally be connected” (the sixth factor). Mendoza-Martinez, 372 U.S. at 168-69. The 

fact that the seventh factor logically cannot stand alone renders academic any debate 

about whether that factor would be sufficient in isolation. 

More importantly, the United States Supreme Court’s ex post facto jurisprudence 

does not foreclose the possibility that a facially non-punitive law might constitute 

punishment solely because it is excessive relative to its regulatory aim. The principle

that “no one [Mendoza-Martinez] factor should be considered controlling,” Hudson, 522 

U.S. at 101, does not mean that the Mendoza-Martinez framework is an exercise in 

arithmetic, or that at least two of the seven factors must be present before a law can be 

deemed punitive. Rather, it simply reminds courts to consider all seven of the factors 
[J-121B-2016] [OAJC: Dougherty, J.] - 9

before reaching a conclusion, since some factors may outweigh others, depending upon 

the particular statute at issue. In this regard, the Court has emphasized that the seven 

factors “are all relevant to the inquiry,” that they are “neither exhaustive nor dispositive,” 

and that they are “useful guideposts.” Mendoza-Martinez, 372 U.S. at 169; Ward, 448 

U.S. at 249; Smith, 538 U.S. at 97; see Erin Murphy, Paradigms of Restraint, 51 DUKE 

L.J. 1321, 1349 (2008) (observing that Smith’s second prong “is not applied according 

to any precise mathematical formulation, . . . and at various times the courts have

emphasized particular factors over others.”). 

Contrary to the lead opinion’s suggestion that our decisions indicate “divergence 

between the clauses,” OAJC at 51, I believe that this Court has gone to great lengths to 

align our own ex post facto jurisprudence with decisions from the United States 

Supreme Court. For example, prior to Smith, we analyzed ex post facto challenges 

using the Third Circuit Court of Appeals’ three-prong Artway/Verniero6test. After the 

United States Supreme Court adopted the intent-effects test in Smith, however, we did 

the same—announcing that we would abandon the Artway/Verniero test “[i]n order to 

promote consistency.” Lehman, 839 A.2d at 271. 

Nor should we ignore that this Court consistently has relied upon federal 

precedent when resolving state ex post facto claims, see e.g., Young, 637 A.2d at 1317 

(citing Calder, 3 U.S. at 390, and Collins v. Youngblood, 497 U.S. 37, 40-51 (1990)); 

Commonwealth v. Duffy, 96 Pa. 506, 513 (Pa. 1880) (defining “ex post facto laws”

consistent with Justice Chase’s definition in Calder); Kalck, 87 A. at 62 (noting that the 

rule announced in Calder remains unchanged), occasionally even going so far as to 

suggest that the resolution of an “appellant’s federal ex post facto claim disposes of his 

 

6 See Artway v. Att’y Gen. of N.J., 81 F.3d 1235 (3d Cir. 1996); E.B. v. Verniero, 

119 F.3d 1077 (3d Cir. 1997). 
[J-121B-2016] [OAJC: Dougherty, J.] - 10

state claim as well.” Young, 637 A.2d at 1317 n.7; accord Commonwealth v. Fisher, 

741 A.2d 1234, 1238 (Pa. 1999) (“Our interpretation of the state constitutional 

prohibition against ex post facto laws has been consistent with the United States 

Supreme Court’s interpretation of the federal prohibition, and therefore the analysis of 

Appellant’s federal ex post facto claim encompasses his state claim.”).

7

III. Related Case Law from Other States

The next Edmunds factor involves consideration of related case law from other 

jurisdictions. Ordinarily, this includes a survey of states that have adopted federal 

constitutional standards, states that have departed from federal constitutional 

standards, and the reasons given for each adoption or departure. Yet, Muniz’s entire 

argument on this Edmunds factor consists of quotations from three state courts that 

have “expressed concern regarding the public’s perception and treatment of offenders.” 

Brief for Muniz at 30 (quoting the Maryland, Alaska, and Indiana high courts). The lead 

opinion finds these expressions persuasive, and concludes that this Edmunds factor 

suggests Pennsylvania’s ex post facto clause provides more protection than its federal 

analogue. Respectfully, I disagree. 

When a statute is challenged on state constitutional grounds, most state high 

courts apply federal ex post facto doctrine (including the four categories from Calder, 

 

7

In at least one later case, the Court did undertake an Edmunds analysis, and 

discerned no basis to conclude that the standards applicable to federal ex post facto

challenges are inadequate to safeguard the Pennsylvania constitutional right. Gaffney, 

733 A.2d at 622 (“Appellant has failed to present any compelling reason for our 

departure from the standards appropriate for determining whether an ex post facto

violation pursuant to the federal constitution has occurred and we find no independent 

reasons for doing so.”); accord Commonwealth v. McElhenny, 478 A.2d 447, 450 (Pa. 

Super. 1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania 

Constitution provides greater protection than the corresponding federal provision, and 

noting that Pennsylvania courts “have, generally, interpreted the Pennsylvania clause 

coterminously with the Federal clause”).
[J-121B-2016] [OAJC: Dougherty, J.] - 11

the intent-effects test from Smith, and the seven useful guideposts from Mendoza–

Martinez).8 Even among the state courts that have struck down retroactive sex-offender 

registration laws on ex post facto grounds—a cross section that one would expect to 

skew in favor of finding more robust state constitutional protections—most have 

remained loyal to the United States Supreme Court’s ex post facto jurisprudence. See

e.g., Doe v. State, 111 A.3d 1077, 1090 (N.H. 2015) (holding that the New Hampshire 

Constitution and the United States Constitution “afford the same protection against ex 

post facto laws”); Starkey v. Oklahoma Dept. of Corr., 305 P.3d 1004, 1019 (Okla. 

2013) (adopting “the analytical framework used in Smith v. Doe”); State v. Letalien, 985 

A.2d 4, 14 (Me. 2009) (holding that “the ex post facto clauses of the Maine and United 

States Constitutions are interpreted similarly and are coextensive”); Commonwealth v. 

Baker, 295 S.W.3d 437, 442 (Ky. 2009), cert. denied, 559 U.S. 992 (2010) (treating the 

ex post facto clauses of the Kentucky and United States Constitutions as one and the 

same and applying Smith’s intent-effects test); Doe v. State, 189 P.3d 999, 1007

 

8 See e.g., Riley v. N.J. Parole Bd., 98 A.3d 544, 552 (N.J. 2014) (“The New 

Jersey Ex Post Facto Clause is interpreted in the same manner as its federal 

counterpart.”); Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014) (“[W]e can discern 

no principled reason, textual or otherwise, to treat the prohibition on ex post facto laws 

in the Minnesota Constitution any differently than its federal counterpart[.]”); People v. 

Earl, 845 N.W.2d 721, 725 n.1 (Mich. 2014) (treating the Michigan Constitution’s ex post 

facto clause as coextensive with its federal counterpart); State v. Harris, 414 S.W.3d 

447, 449 (Mo. 2013) (“The Missouri Constitution’s ban on ex post facto laws is 

coextensive with the United States Constitution’s ban on ex post facto laws.”); In re 

Interest of J.R., 762 N.W.2d 305, 316 (Neb. 2009) (construing Nebraska’s ex post facto

clause “to provide no greater protections than those guaranteed by the federal 

Constitution”); People ex rel. Birkett v. Konetski, 909 N.E.2d 783, 800 (Ill. 2009) (“[T]he

ex post facto clause in the Illinois Constitution does not provide greater protection than 

that offered under the United States Constitution.”); Kellar v. Fayetteville Police Dept., 5 

S.W.3d 402, 405 (Ark. 1999) (“We have been given no reason why we should interpret 

Arkansas’s ex post facto clause in a manner contrary to the ex post facto clause in the 

United States Constitution.”).
[J-121B-2016] [OAJC: Dougherty, J.] - 12

(Alaska 2008) (holding that the United States Supreme Court’s “intent-effects test 

provides an appropriate analytical framework” under the Alaska Constitution).

As always, there are a few exceptions. In 2013, a plurality of the Court of 

Appeals of Maryland held that the ex post facto clause of that state’s constitution affords 

Marylanders more protection than Article I, Section 10 of the United States Constitution

does. Doe v. Dept. of Pub. Safety & Corr. Servs., 62 A.3d 123, 130-37 (Md. 2013). The

court’s departure from federal law was prompted by a very specific doctrinal glitch that 

arose from two nineteenth century Supreme Court cases. In the first of those cases,

Kring v. Missouri, 107 U.S. 221 (1883), the Supreme Court defined ex post facto laws to 

include legislation that “alters the situation of a party to his disadvantage.” Id. at 235. 

And in the second case, Thompson v. Utah, 170 U.S. 343 (1898), the Court held that a

particular retroactive law violated the ex post facto clause because it deprived criminal 

defendants of “a substantial right.” Id. at 352. 

The language used in Kring and Thompson caused considerable confusion.

Some state courts, like the Court of Appeals of Maryland, for example, seemed to read

Kring and Thompson as alternatives to Calder’s four categories of ex post facto laws. 

See Anderson v. Dept. of Health & Mental Hygiene, 528 A.2d 904, 909 (Md. 1987)

(stating that the ex post facto clause “embraces consequences affecting substantial 

rights if they ‘disadvantage the offender’”); State v. Rowe, 181 A. 706, 709 (N.J. Sup. 

1935) (listing six categories of ex post facto laws). Other courts continued to adhere to 

the Supreme Court’s suggestion that the ex post facto clause does not turn on whether 

the defendant has suffered some sort of “disadvantage.” See Dobbert v. Florida, 432 
[J-121B-2016] [OAJC: Dougherty, J.] - 13

U.S. 282, 293 (1977) (“Even though it may work to the disadvantage of a defendant, a 

procedural change is not ex post facto.”).9 

Eventually, the Supreme Court disavowed both Kring’s “disadvantage” standard 

and Thompson’s focus on “substantial rights,” explaining that both approaches deviated 

from the original meaning of the term ex post facto. Collins, 497 U.S. at 50-52 

(overruling Kring and Thompson). Despite this clarification, the Maryland Court of 

Appeals (or at least a plurality of the judges on the court) continues to adhere to the 

now-abandoned “disadvantage” standard as a matter of state constitutional law. Doe, 

62 A.3d at 132-33. In so holding, the plurality repudiated aspects of the court’s earlier 

ex post facto decisions, some of which treated the state and federal clauses as

coterminous. See e.g., Sec’y, Dept. of Pub. Safety & Corr. Servs. v. Demby, 890 A.2d 

310, 327 (Md. 2006) (“We have held that the ex post facto clause in the Maryland 

Declaration of Rights has the same meaning as the federal clause.”); Khalifa v. State, 

855 A.2d 1175, 1189 (Md. 2004) (“The Ex Post Facto Clauses of the United States 

Constitution and Maryland Declaration of Rights have been viewed generally to have 

the ‘same meaning’ and are thus to be construed in pari materia.”). 

Unlike the Maryland Court of Appeals, this Court has acknowledged that 

references in our prior decisions to laws that either implicate “substantial rights” or 

“disadvantage” a defendant “should not be read so as to enlarge the Calder categories 

beyond their meaning at the time of the adoption of the Constitution.” Young, 637 A.2d 

at 1317-18; see Fisher, 741 A.2d at 1238 (“[T]he Constitution does not prohibit every 

retrospective law that alters a party’s situation to his disadvantage.”). Thus, the 

 

9 See also Murphy v. Kentucky, 465 U.S. 1072, 1073 (1984) (White, J., dissenting 

from denial of certiorari) (citing conflicting lower court decisions concerning the ex post 

facto clause’s application to retroactive evidentiary and procedural rules). 
[J-121B-2016] [OAJC: Dougherty, J.] - 14

Maryland court’s departure from the prevailing federal constitutional standards provides 

no basis for this Court to follow suit. 

The Supreme Court of Indiana is another tribunal that has diverged from United 

States Supreme Court precedent. Although the Smith intent-effects test is the 

“appropriate analytical framework for analyzing ex post facto claims under the Indiana 

Constitution,” courts in that state do not subscribe to the view that only the clearest 

proof of a statutory scheme’s punitive effect can negate the legislature’s assertedly nonpunitive intent. Compare Smith, 538 U.S. at 92 (“Because we ordinarily defer to the 

legislature’s stated intent, . . . only the clearest proof will suffice to override legislative 

intent and transform what has been denominated a civil remedy into a criminal 

penalty.”), with Wallace v. State, 905 N.E.2d 371, 398 n.7 (Ind. 2009) (“[O]ur standard of 

review for challenges to the constitutionality of a statute has never included a clearest 

proof element.”). Unlike the Supreme Court of Indiana, however, this Court has 

embraced Smith’s “clearest proof” requirement. Lehman, 839 A.2d at 272 (“[O]nly the 

clearest proof will suffice to override legislative intent and transform what has been 

denominated a civil remedy into a criminal penalty.”); cf. Stilp v. Commonwealth, 905 

A.2d 918, 939 (Pa. 2006) (“[A] legislative enactment will not be deemed unconstitutional 

unless it clearly, palpably, and plainly violates the Constitution.”). 

The lead opinion is not swayed by the number of states that have adopted 

federal constitutional standards for purposes of their own ex post facto clauses. 

According to the lead opinion, the Pennsylvania Constitution warrants unique treatment

because, unlike some other state constitutions, ours protects the right to reputation. 

OAJC at 52-53. Along these lines, the lead opinion finds persuasive the fact that a few 

state high courts—in holding that retroactive sex-offender registration laws violate ex 

post facto principles—have “found harm to the reputations of offenders to be a factor in 
[J-121B-2016] [OAJC: Dougherty, J.] - 15

their constitutional analysis.” Id. Those courts have done so, the lead opinion 

continues, “even in the absence of a constitutional provision like Pennsylvania’s to give 

special protection to [reputation] interest[s].” Id. 

In my view, the fact that our state Constitution protects reputational rights (PA.

CONST. Art. 1, § 1) has little bearing on the question before us.

10

 As explained, the 

critical inquiry for purposes of the ex post facto clause, as we have understood it for 

more than two centuries, is whether the law at issue constitutes “punishment.” Harm to 

reputation may help us to answer that question, but only because public ridicule and 

vilification of those who commit crimes historically has been (and sometimes still is) 

used as form of punishment. See Smith, 538 U.S. at 97 (“Some colonial punishments 

indeed were meant to inflict public disgrace. Humiliated offenders were required ‘to 

stand in public with signs cataloguing their offenses.’”) (quoting Adam Jay Hirsch, From 

Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 

MICH. L. REV. 1179, 1226 (1982)); Gaffney, 733 A.2d at 620 (distinguishing sex-offender 

registries from the colonial-era punishments of “shame” and “ignominy” described in 

Nathaniel Hawthorne’s The Scarlet Letter (1850)). This is why, as the lead opinion 

notes, some courts will discuss a law’s impact on an offender’s reputation even in the 

absence of an explicit constitutional right to reputation. But it is not a reason to depart 

from federal constitutional standards, which already require courts to consider such 

concerns. See e.g., Mendoza–Martinez, 372 U.S. at 168 (holding that courts must 

analyze both whether a sanction “has historically been regarded as a punishment” and 

whether it “will promote the traditional aims of punishment”). 

 

10 If anything, the very existence of a reputation clause suggests that the drafters of 

our constitution believed that the right was not protected sufficiently by other provisions 

of the Declaration of Rights. 
[J-121B-2016] [OAJC: Dougherty, J.] - 16

Given these points, the case law from other jurisdictions does not convince me 

that the lead opinion’s interpretation of the Pennsylvania Constitution is warranted. To 

the contrary, the experiences of our sister courts persuade me that we should err on the 

side of restraint when considering a departure from federal constitutional standards. 

Compare Miller v. State, 584 S.W.2d 758, 762 (Tenn. 1979) (holding that the ex post 

facto clause of the Tennessee Constitution extends beyond the limits of its federal 

counterpart), with State v. Pruitt, 510 S.W.3d 398, 416 (Tenn. 2016) (“There is simply 

nothing in the text of our constitution nor in our history that supports the Miller Court’s 

holding that the meaning of ‘ex post facto’ in Tennessee is more expansive than the 

definition provided by Justice Chase in 1798.”). 

IV. Policy Considerations

Muniz’s discussion of Edmunds’ policy prong is quite limited; he merely asserts

that the Commonwealth “has an interest in the finality of sentencing.” Brief for Muniz at 

31. Muniz does not explain why this alleged interest supports the view that 

Pennsylvania’s ex post facto clause prohibits laws other than those which constitute

“punishment.” Nor does he clarify why sentencing finality is an interest unique to 

Pennsylvania. (Surely, every state would have a similar “interest” in the finality of 

criminal sentences.) And to make matters worse, Muniz has not even bothered to 

discuss the ex post facto clause’s “application within the modern scheme of 

Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 901. 

In short, Muniz’s argument here “falls short of the kind of searching inquiry 

required” to justify a departure from federal ex post facto precedent, Commonwealth v. 

Russo, 934 A.2d 1199, 1212 (Pa. 2007), and the lead opinion does not supply any 

pertinent policy concerns that Muniz may have overlooked. 

V. Conclusion
[J-121B-2016] [OAJC: Dougherty, J.] - 17

Neither Muniz nor the lead opinion offer much to undermine the perception that—

as the text and history of our Constitution seem to require, as those who wrote it

seemed to expect, and as our past cases have all suggested—the state and federal ex 

post facto clauses are coterminous. Nonetheless, as the lead opinion’s thorough 

analysis makes clear, OAJC at 27-45, applying the federal ex post facto standards also

leads to the conclusion that SORNA is punitive and cannot be applied retroactively. 

Thus, I join parts I-IV and VII of the lead opinion, and otherwise concur in the result.

Justice Todd joins this concurring opinion.