Pa. DAs Urge Legislature to Close 'Loopholes' in Megan's Law
The Legal Intelligencer
July 26, 2011
State prosecutors have been forced to drop dozens of cases against convicted sex offenders because of "loopholes" in Megan's Law, according to the Pennsylvania District Attorneys Association, prompting it to call for immediate legislative action to fix what it sees as errors in the 16-year-old law.
Meanwhile, three state senators have introduced legislation proposing several changes to bring Megan's Law into compliance with a federal statute, the Sex Offender Registration and Notification Act (SORNA).
Megan's Law fails to spell out a punishment for out-of-state offenders who do not to register upon moving to Pennsylvania, although the requirement is explicitly listed in the law. PDAA President Francis J. Schultz called it a "drafting error."
Additionally, the district attorneys association is calling for the General Assembly to enact legislation that would require homeless or "transient" offenders to register with the state, despite not having a permanent address.
Megan's Law makes information about sex offenders publicly available and requires offenders to register with the state.
"Closing the Megan's Law loopholes is a legislative no-brainer that has turned into a political headache, and the failure to close them is putting the public at risk," said Schultz, the Crawford County district attorney, in a statement.
In 2010, Congress passed legislation closing these loopholes, but then-Gov. Edward G. Rendell vetoed the bill because it was combined with a bill extending the common-law "castle doctrine." The castle doctrine bill, which expands a person's right to use deadly force outside his or her home or business, has since been signed into law by Gov. Tom Corbett, but the fixes to Megan's Law remain stagnant.
Former Lawrence County District Attorney Matthew T. Mangino said the requirement to register upon moving to Pennsylvania "has no teeth" because there is no penalty to go with it.
Mangino, who writes a column for the Law Weekly , said there really is no reason the errors have not been corrected.
"It seems like everything is in place to move along with closing these loopholes," he said. "It's just a question why it hasn't happened."
Mangino said the errors mean the state has "set itself up to be a safe haven [for sex offenders] for all intents and purposes."
House Bills 68 and 75, which address the loopholes, cleared the House of Representatives in February. Since then, however, the legislation has not moved.
Legislators and officials interviewed by the Law Weekly said correcting Megan's Law is among the General Assembly's top priorities upon its scheduled return to session in September.
"Our goal is to get legislation to the governor's desk before the end of the calendar year," said Erik Arneson, spokesman and policy director for Sen. Majority Leader Dominic Pileggi, R-Delaware. "One way or another, Megan's Law issues are on track to be addressed this fall."
"We have people out there committing sex crimes against our children and we need to address it as soon as we can," added Rep. Ron Marsico, R-Dauphin. "It's unfortunate we couldn't do it before the summer break."
Additionally, the legislature will also look to bring Megan's Law into compliance with SORNA, the federal law also known as the Adam Walsh Child Protection and Safety Act of 2006.
Sen. Jane C. Orie, R-Allegheny, along with Sens. Stewart Greenleaf, R-Montgomery, and John Rafferty, D-Berks, proposed 10 changes last month to Megan's Law in order for it to comply with SORNA.
The compliance changes will miss a deadline set for tomorrow, which technically means the state could see a 10 percent slash in federal funding. But Pennsylvania will not suffer any punishments, according to Arneson, who added the legislature will aim to have Megan's Law reformed by the end of this year.
Greenleaf added the House and Senate are more focused on getting the law right and, if the eventual bill amending Megan's Law doesn't match with SORNA requirements, the state could forgo the 10 percent in funding. Greenleaf said the General Assembly will also examine whether the money would cover enforcement of the co-requisite SORNA provisions. Greenleaf said the loopholes in registration and transient offenders remain the legislature's top priorities.
"The money is not as important," Greenleaf said. "We have to be smart about how we spend our money but, when we are dealing with a violent offender, [getting the law right] is the priority as well as protecting the public."
In the co-sponsorship memo, Orie outlined 10 changes to Megan's Law which include a tiered classificatory system, extending registration requirements to juveniles who commit rape and other severe offenses, and expanding the list of offenses subject to the law. Under the changes, a previous offender no longer subject to registration would also be subject to re-registration if he or she is convicted of a crime punishable by more than a year in prison.
The changes would also require transient offenders to register and update their registration information.
In 2009, the Superior Court held in Commonwealth v. Wilgus that homeless offenders are not subject to Megan's Law.
Orie also listed four additional changes not explicitly required by SORNA, including a correction to the out-of-state registration loophole.
Last year, the Superior Court ruled in Commonwealth v. Arroyo that a convicted rapist from New York could not be penalized for failing to register in this state, reversing a Lancaster County trial court decision.
"If the General Assembly desires to punish persons such as appellant who fail to comply with their sexual offender registration requirements, then it is the General Assembly's prerogative to do so," Judge Robert E. Colville wrote in the majority opinion