Sixth Circuit panel concludes Michigan sex offender registration amendments “imposes punishment” and thus are ex post unconstitutional for retroactive application

August 25, 2016

Sixth Circuit panel concludes Michigan sex offender registration amendments “imposes punishment” and thus are ex post unconstitutional for retroactive application

In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan’s amendments to its Sex Offender Registration Act (SORA) “imposes punishment” and thus the state violates the US Constitution when applying these SORA provisions retroactively. Here is some of the concluding analysis from the unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

I was involved with some amicus briefing in this case, so I am a bit biased when saying I think the Sixth Circuit got this one right. But I do not think I am showing any bias when asserting this ruling is a big deal (and could become an even bigger deal if Michigan seeks a further appeal to the full Sixth Circuit or to the US Supreme Court).

1 comment for “Sixth Circuit panel concludes Michigan sex offender registration amendments “imposes punishment” and thus are ex post unconstitutional for retroactive application

  1. Dave
    January 16, 2017 at 3:40 am

    All I can say about this whole sex offender registry thing is that it does nothing to protect the general public. What it does do is continue to punish the offender. No other crime that is committed and punished does such an outrageous thing as have a registry that is public with addresses and such of the person who has already done everything required to get them off of paper.
    Yes, I am a sex offender, my crime was exploitation of a minor, downloaded some underage porn, I was looking for myself since when I was in fifth grade I was molested by a male teacher. I remembered there was a tripod and camera at the time, mind you this was back in 1974 or so and I had told nobody about it ever. Turns out the guy who molested me was arrested back in 2012 and is serving a life sentence. Though I was not involved in turning him in to my knowledge but it was a person who was in his late 40’s who said something to the authorities. Turns out this guy, Charles Webber had been doing it since the 70’s and was a principal at a private school.
    I did nothing about it except the wrong thing, when I started downloading this stuff off of a peer to peer server. I had to download it to view it and I could not believe my eyes at what was actually out there. No, I did not find myself and I should never have ever downloaded anything as what I did. It was deleted as soon as I viewed it but I was monitored downloading a clip and that’s how I got busted not even knowing such a thing could do what it has done to me. I have never touched, thought about or even entertained a thought of doing such a thing to a child. It makes me sick to my stomach every day being labeled as a sex offender. I lost my career, it shattered my life and always will. I guess a clip of what I downloaded did not get deleted and all the cd’s they took had that clip on it. It did not help with me telling them, the cops that I looked at it as well. What a mess. There is a lot more to the story but that’s what happened and yes, I am so ashamed of what I did, but the way the prosecutor made me out to be a sick, the worst individual ever, I mean these guys are evil when it comes to lying and saying whatever they want to say to the judge not even knowing anything about me. Discrediting me saying well, if he was molested by someone we should go get them. But he did not even ask me anything about the ordeal at all. That is how interested he was in catching the guy. He was only interested in me being found guilty and putting another feather in his cap.
    My psychosexual evaluation came up clean as to not being a pedophile or a threat to society, I went through the counseling and being given a clean slate as far as not having any tendencies toward children, I admitted what I did, I was sentenced to six months jail and five years probation and successfully completing the counseling and a fine. It was all taken care of, even though I lived in a motor home the whole time, at the end just under a month after I was off of probation, my motor home and everything I owned went up in flames.
    I still have to register every six months, renew my drivers license every year, why that has anything to do with it, I will never understand it. I mean they know where I live, they know where I work, why do I and everyone else have to renew their drivers license every year? It’s the most ridiculous thing, this sex offender registry and yes it is just to punish people forever and discriminate against them for something I have paid my debt to society for and anyone else who served their sentence and requirements as well, so why are we publicly listed for all to see and never live this nightmare out??
    Murderers have it better than a sex offender, they can go about their life if they ever get out of prison and nobody knows the difference unless they go and do some research on the murderer. Yet all anyone has to do is look at the list and map of sex offenders and boom, they pop up everywhere. Making people feel scared and uncomfortable and having an opinion about us without even knowing who we are and what really happened. It’s probably the worst thing that could happen to a person. Yes, I know there are some sicko’s out there who have hands on victims and well, they are in prison and probably will not get out. But what about most of the other sex offenders, let me tell you this, if they decide to go and do something stupid to a child or repeat what they did to get them into trouble a second time, they will not be getting out of prison. This thing is a witch hunt and these cops will nail you to the wall if they think you have done anything wrong concerning a sex offense. The prosecutors are the ruthless ones, yes, some deserve it but really?? They are out to punish sex offenders and they do it for the sex offenders life with this registry thing. It’s a nightmare and even being pardoned and not being guilty, it does not matter, your life is over once it starts with accusations and especially a guilty verdict. I feel for this dad who got falsely accused. He knew he was innocent, so did and does God. These laws need to be amended and looked at because it’s so unfair what happens to a lot of us. Yes, it’s very unfair to the victims as well, that ruins their life as well. I guess I get to see both sides the the coin so to speak and believe me, it’s been hell.

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