For the Defense - Vol. 6, Issue 1 - 22

never committed a sexual crime. The Court held that as
applied to Ms. Muhammed, because her crime had no
sexual component and because she had no prior history
of sexual offending, the law's declaration that she posed
a " high risk of committing additional sexual offenses, "
42 Pa.C.S.A. § 9799.11(a)(4), was false. Moreover, it
concluded that " under these circumstances, we find no
need for a remand, . . . to determine whether Appellant
poses a high risk of recidivism " and simply ordered her
removed from the registry.
This decision was built upon strong precedent
that resists depriving rights based on sweeping
presumptions about categories of people, and is
rooted in the response to Pennsylvania's adoption, in
2012, of the federal government's broad and onerous
requirements for sex offender registries.4 This original
version of SORNA not only mandated registration for
some non-sexual offenses, it also required children
as young as 14 to register for the remainder of their
lives if they had committed a serious sexual crime.5 In
2014, the Pennsylvania Supreme Court found the law
unconstitutional.6 The Court's holding was based on
two components - that children possess a fundamental
right to reputation under the state's Constitution, and
because it violated the state's irrebuttable presumption
doctrine. The decision to employ the irrebuttable
presumption doctrine was crucial. Not only does it do
the heavy lifting in the Muhammed decision, but it also
leaves open the door to a future finding that SORNA is
facially unconstitutional.
The irrebuttable presumption doctrine originated
under federal law as a hybrid between procedural
and substantive due process. Procedural due process
addresses the method by which a person may be
deprived of a right. The more important the right
or privilege at issue, the more protections must be
afforded before that right may be deprived. Substantive
due process, on the other hand, is designed to address
legislative pretext - the more important the right or
privileged being denied, the stronger the legislative
justification must be. The irrebuttable presumption
doctrine, focuses on the procedure at issue - the
opportunity to be heard - but applies a strict test
because majoritarian legislative presumptions about
certain groups are treated with great skepticism by
courts. Although this doctrine fell out of favor with the
federal judiciary in the 1970s, it remains alive and well
under Pennsylvania's jurisprudence. The doctrine posits
that if a person is entitled to a certain right or privilege,
the state can only automatically remove or encroach
upon that right based on a factual presumption under
a very unique set of circumstances. Otherwise, the law
must give that person a pre-deprivation opportunity to
challenge the validity of the presumption.
The J.B. court held that an irrebuttable presumption
is unconstitutional when it " (1) encroaches on an
interest protected by the due process clause, (2) the
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For The Defense l Vol. 6, Issue 1

presumption is not universally true, and (3) reasonable
alternative means exist for ascertaining the presumed
fact. " 7 In J.B., SORNA presumed that children
adjudicated of serious sexual crimes posed a " high
risk " of sexual recidivism. Citing numerous studies, and
the general acceptance that kids are likely to grow out
of offending, the court found that SORNA denies kids
their right to a reputation, that not all kids pose a high
risk of reoffending, and individual risk assessments
were a reasonably available alternative, and barred
lifetime registration " as applied to juveniles. "
Fast forward 6 years. By 2020, SORNA had been
taken through the judicial ringer, but survived. In 2017,
SORNA was ruled punitive and therefore impermissibly
retroactive,8 as were its sexually violent predator
provisions.9 The Legislature immediately " fixed "
that problem by enacting a more complicated, but
materially similar law.10 By the end of the Summer of
2020, the Pennsylvania Supreme Court reinstated the
SVP procedures,11 found the retroactive version of
the law, Subchapter I, non-punitive,12 and punted on
whether the newest version of the law was facially
unconstitutional under the irrebuttable presumption
doctrine.13
Muhammed's significance cannot be overstated.
People like Ms. Muhammed, with no history of sexual
offending, should immediately petition a court for
a writ of habeas corpus or coram nobis14 raising Ms.
Muhammed's " as applied " challenge. No hearing
on the petitioner's dangerousness or risk would be
necessary as it would be clear that someone who has
never committed a sexual crime could pose no risk
of " reoffending. " These petitions should be filed
immediately.
However, if the defendant does not exactly fit the
facts of Muhammad, there is still an opportunity for
relief. The opinion holds that an individual who can
demonstrate that the presumption of " high risk " does
not apply to them should be removed from the registry.
Current research has demonstrated that people who
have been convicted of certain sexual crimes, and
remain crime free while on supervision and for periods
of time thereafter, eventually pose no greater risk of
committing a new sex crime than anyone else. " After
10 to 15 years, most individuals with a history of sexual
offenses were no more likely to commit a new sexual
offense than individuals with a criminal history that did
not include sexual offenses. " 15 Having a person assessed
under one of the varieties of actuarial risk assessments,
and accounting for crime free time in the community
provides a meritorious argument that may be sufficient
to demonstrate that the presumption is no longer
accurate and should not be applied. Considering that
thousands of people have been on the registry for
decades or longer, many may be able to demonstrate
their lack of risk. While it is wrong to place the burden
For the Defense - Vol. 6, Issue 1

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