Sixth Circuit Court of Appeals
Sixth Circuit Court of Appeals

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.

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

  1. This may be the “Straw that finally breaks the Camel’s back”. It’s the most positive news I’ve heard in about
    27 years of this unconstitutional hit list. It is mainly referring to the bad “Amendments” or “SORA” to the registry as I see it, but it’s a something going in the right direction.

  2. Huge decision…had to reread it to believe a judge wrote it! The points made in it are very solid and should be hard to dismiss on appeal…the higher the appeal the better with this decision!
    Love how Smith vs Doe was hit with ‘Frightening and high ‘ and banishment, etc.
    Was starting to think a decision like this would never come. Great cases to bring and even better decision!
    hopefully more to come!

    1. Interesting story. Last year I saw Michigan ACLU Attorney Miriam Auckerman’s name in an on-line article. I called the ACLU Office leaving the message that we wanted to talk to her about a class action lawsuit we were working on and would like to get her input. She called me back and we talked a couple of times and she talked to Randy. She mentioned that she worked with a certain retired judge and I saw his name in an interview about the Zach Anderson case in Michigan so I reached out to him via email and added him to my list of attorneys and law school professors. When the Ellman Essay ‘Frightening & High came out in last year I sent not only to those folks buy probably a hundred legislators and media since.I am sure he shared it with Miriam and all his friends in his former circle.When I saw Ira and Tara at Janice Bellucci’s court hearing and protest in Oakland Tara said he was surprised at all the attention the essay had gotten to which I said that I had sent it to everyone I knew and then some. Hopefully, others will begin doing the same,

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