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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).

August 25, 2016 at 12:29 PM | Permalink


My quick take--court shouldn't focus so much on the effects of the registration--rather the duty of the offender to register, stay away from public places etc. The government has one chance to punish someone--at trial. Once that is over, no more punishment. Telling a citizen not subject to a criminal conviction that he or she cannot live in a certain place is punishment if that word is to have any meaning whatsoever. I don't see how the question is really debatable, and this silly balancing test obscures that reality.

Posted by: federalist | Aug 25, 2016 12:45:02 PM

Any type of registration "after" someone has already served their time in jail or prison, is punishment. Let the attorneys and judges try to live life on the list for a year. Then maybe they'll understand.

Posted by: kat | Aug 25, 2016 1:49:48 PM

Potential in the next couple years for a Supreme Court opinion to put some limits on such things.

Posted by: Joe | Aug 25, 2016 3:26:40 PM

Ding Dong the Witch is Dead...at least in Michigan. Now we need to kill her in TX, CA, WA, GA, FL, UT, LA, etc., etc.,

Posted by: the oppressed | Aug 25, 2016 4:23:33 PM

Indeed. The piling on of additional restrictions (punishments), including the ill-conceived International Megan's Law, all hiding behind the Alaska case, must cease and be reversed. Of course, since the Alaska case is Justice Roberts raison d'etre for being on the Supreme Court to begin with, begs the question: How receptive will the court be once the challenge(s) ultimately reach them. Justice Kennedy in the same case quoted recidivism opinions that have long since been debunked as well.

Posted by: Tuna | Aug 25, 2016 9:03:47 PM

Is anyone able to download the opinion? Seems the entire site is down.

Posted by: Anon | Aug 25, 2016 9:09:37 PM

Doug is being rather modest when he says he "was involved with some amicus briefing in this case." In fact, he was one of four authors of an amicus brief written on behalf of thirty-three law professors. Moreover, the court seemed to rely pretty heavily on this brief. So congrats to Doug, Sonja Starr at Michigan, Corey Yung at Kansas, and Evan Zoldan at Toledo.

Posted by: Michael J.Z. Mannheimer | Aug 25, 2016 10:33:06 PM

To all involved parties who had a hand in getting members of this federal court to take their heads out of where the sun don't shine:


I hope that the Supremes will finally realize the huge error of their ways in Smith vs. Doe. It depends on that lame-brained Roberts!

Posted by: albeed | Aug 25, 2016 11:41:31 PM

Legislatures just can't seem to resist the (perceived) elixer for instant votes manifested by revisiting the registration statutes. Every time a legislature meets they seem to never tire of dog-piling on the registrants. It will take some more painful amendments, but we are getting close to some more registration regimes being declared "punishment." A few more Circuit Courts of Appeals' ruling so will get us a bona fide circuit split. Hillary's new judge might tip the scale when the Supremes get around to settling the upcoming split.

Posted by: MarK M. | Aug 26, 2016 3:31:49 AM

Doug, this is a HUGE DEAL! thanks for your efforts. Right now I am drafting a Motion for Appropriate Relief on the ex post facto issue. As you may know, the NC Sup Ct. split on whether the onerous registration requirements are punishment. This issue is headed to the Supreme Court.


Posted by: bruce cunningham | Aug 26, 2016 7:59:57 AM

Yes, Doug, thank you for your contribution in this case. My read of the opinion is that it is a rather significant judicial opinion, particularly in terms of the language that they are using. They are extremely forceful in their conclusion that the registry, as it exists in present day, is nothing short of a scarlet letter type punishment. Bonus points for espousing skepticism on the utility of the registry as a whole as well as the continued viability of Smith v. Doe.

It's fantastic news.

Posted by: Guy | Aug 26, 2016 9:09:23 AM

Good job!!! Some common sense at last!

Posted by: Ex-Economist | Aug 26, 2016 9:21:46 AM

I agree wholeheartedly with this ruling and strangely hope Michigan seeks to take it all the way to the Supreme Court. Why you ask? I want the Supremes to issue the same ruling and start the gradual take down of the registry all together (at least the public one).

Posted by: trekatch | Aug 26, 2016 10:54:33 AM

Fantastic. Isn't is time just to get rid of these lists once and for all? They are terribly destructive and serve no legitimate purpose. We need to let offenders get on with their life, once they have served their punishment. It is very telling that we don't see these systems in peer countries and symptomatic of the truth that in the United States the uninformed and non-analytic have way to much influence over criminal justice policy. There are interesting dynamics here. Folks who advocate for criminal justice reform are often the ones whose families are least likely to be caught up in the criminal justice system, which evidences that pro-reform views coming from clear and rigorous thinking; and opponents are too often motivated by white working class resentment(or, derivatively, those pandering to them).

Posted by: Mark | Aug 26, 2016 11:39:36 AM

From my personal witnessing of "Justice", the judicial system found a new income that is impossible to get rid of. It is called sexual offender and everyone is a possible victim from preschool to retirement home. Some get prison, others jail and all get probation along with its fees and enforcement. They are placed on a sex offender list for life whether guilty or not and most are the male population. I have witnessed 3 generations of women that have played the system getting tax payer support in one family - now multiply that by other families and add what their peers are teaching & learning in school and the family is destroyed. I have witnessed a former DA that told a Tea Party gathering that he always adds 10 years probation so that he can yank them back into the system (on recording). He is now a judge(?) I have witnessed a Sheriff refuse to file a report because this former DA said that he (DA) would not prosecute the case (on recording also). Now, the judge (?) is unable to sit the bench on these cases and the retired judge (20 + years and should have retired long ago) is brought in to hear the case at tax payer expense. People if you do nothing else, keep your county administration under scrutiny at all times. Come to find out, our County Adult Probation Officer has never had an Oath of Office during this time and Texas Law requires all court office holders to have an Oath of Office by law. So, is he above the law? He can force his will on others when he is unlawful. A petition of the people needs to be started but I need help, I have not learned how to do that yet. Let's speak up with petitions when we see wrong doing!

Posted by: LC in Texas | Aug 26, 2016 5:02:05 PM

Before everyone gets excited about going to the Supreme Court, keep in mind that Chief Justice John Roberts holds the key to cert. As he was the lead litigator for the state in the infamous Smith v. Doe ruling that validated the existence of the sex offender registries in the first place, he is unlikely to allow for any sex offender-related issues to reach the Supreme Court unless he knows it's a slam dunk decision against registrants.

In fact, it was his work in Smith v. Doe that actually alerted Bush operative Karl Rove to recommend him to the then-president, and that's how he ultimately became Chief Justice.

Here is a more detailed explanation (LINK).

Posted by: Eric Knight | Aug 28, 2016 2:02:25 PM

Chief Justice John Roberts needs a wake up call. Perhaps the 850,000 registrants and their families should write to him explaining just how the registry affects their lives. It's easy for him to be "against" registrants when he doesn't have to hear from them or their families.

If we want to end the registry, registrants and their families need to come out of the shadows and speak up and have their voices be heard in Washington.

Posted by: kat | Aug 29, 2016 9:38:51 AM

I'm one of those here in Michigan who is affected by this wonderful news. My conviction is from 1995. I was only required to register for 25 years. Now due to the new laws, I'm required to register for life. I've been out of prison since 2003, with no other problems. So, if I am reading this correctly, I should be coming off the registry in about four years. Is this correct?

Posted by: Ann King | Aug 31, 2016 9:46:07 PM

Michigan prosecutors/lawmakers are fighting this judgement claiming that the federal circuit court judgement is not "binding" since the Michigan supreme court did not have the case prior to federal court, I know this cause I am being charged with violating school safety zone when my original offense was back in 1999 and just went to court yesterday assuming they would dismiss it, they just adjourned it again (been on bond for 2 years now) pending on what the US supreme court decides if Michigan even appeals the order! The whole system is so corrupt and rigged we sex offenders will never get our constitutional rights back ever! So don't get too excited about this judgement cause it doesn't mean shit!

Posted by: frustrated | Sep 1, 2016 3:51:09 PM

I am neither,student, professor,attorney etc; I have a question about
I am a victim of the SORA in MI; I went to my police Dept and they don't know anything about this. Do I need an attorney to enforce them to take me off the registry? I've been on for 19 years. I was falsely accused and ultimately convicted of a misdemeanor. blah blah
Thank you for any advice.

Posted by: Renee | Sep 3, 2016 1:14:08 PM

Kudos to the Federal 6th district circuit court for their ruling on retroactive punishment as being unconstitutional! Now how do we get the state to actively reverse their laws in an expediant manner and resolve the unconstitutional ruling. My son was convicted of a sexual crime (Romeo and Juliet) situation. He was pigeon holed into one of the tiers that made him appear to be an assaulting dangerous criminal to all the public. His sentence occurred 23 years ago. He has experienced just under a year in the county jail, public registration for years, missed school activities for his children, etc. I believe the initial purpose for the sex offender list had good intention and there are some people's crimes that should be on for a lifetime....however, there are over 42,000 peoples names currently on the Michigan list and the majority of them are "low risk", one time "offenders". Once again, how do we put a fire under the legislators to change the unconstitutional laws? I wrote to both my Michigan Representatives and just received a "rubber stamp" letter about how it hasn't come to the floor yet. I told them both, I don't want a general letter of "thanks for your concern", I WANT ACTION. What else can I do? Anxious Mom waiting for justice

Posted by: Karen J Knoll | Sep 15, 2016 9:33:33 AM

The rust belt is hammering away at SOR laws. The PA Supreme Court ruled SORNA violated the ex post facto back in what, 2012? Since then attorney's across PA have been whittling away at the laws, including lifetime registration.

Posted by: Huh? | Dec 5, 2016 6:08:43 PM

To those asking, "what now?" First, wait and see if the US Supreme Court agrees to hear the case. If they don't want to hear it, and this case applies to you, then legally you should be removed automatically. However, I doubt that will happen and you will probably need to either write a letter to the State or get a lawyer to write one for you or go and petition your local court to get the judge to order the State to do so by such and such a time. Your point of contact will be the official in your state capital who is assigned to make such decisions and carry out appropriate court orders. Expect them to do it quickly. It's just a matter of deleting your name. I had an attorney write a letter to my State person and it was done the next day.

Posted by: rpsa | Feb 23, 2017 9:14:49 PM

I was convicted in 1975 and i dont think i will ever get this behind me.because if you dont have money for a att then you are done thanks for reading.

Posted by: h.d. houck | Mar 8, 2017 1:25:39 PM

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