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July 8, 2017

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel 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.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in "the view of the United States, the petition for a writ of certiorari should be denied." The discussion section of the brief begins this way:

Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States.  After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes.  While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith.  Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive.  And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features.  Accordingly, to the extent the courts of appeals have reached different outcomes in state sexoffender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework.  Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review.  That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision.  And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law.  Further review is therefore not warranted.

July 8, 2017 at 04:32 PM | Permalink


If cert is denied, does that mean that the decision is binding only in the 6th circuit and not nationwide? Perhaps that is a reason they are suggesting denying cert. Also worth mentioning again, is that decision in Doe was based on a early-generation registration scheme that bears little resemblance to the add-ons now plaguing most state registration schemes today.

Posted by: Salmon | Jul 8, 2017 8:23:59 PM

My my a state was finally stupid enough to appeal one of these rulings. Last I heard there were at least two states trying to amend their state constitution to allow retroactively in sex crimes to overturn their states orders that day dif.

Of course that is why the D O J wants this to die.

Posted by: rodsmith3510 | Jul 8, 2017 8:36:30 PM

Another thing I notice is that the SG/DOJ document erroneously mis-states what CA6 said about recidivism. The document states "The court acknowledged
that recidivism rates of sex offenders are “frightening and high”, when in fact the CA6 said that empirical studies have cast doubt on this. It referred to the frightening and high when quoting from Smith v Doe, but was using it to point out its inaccuracy.

Posted by: Salmon | Jul 8, 2017 10:28:00 PM

Typical. For the last 15 years anytime one of the lower courts allows one of these illegal laws they simply state the United States Supreme Court approved never mind that what they approved is so far from what we now have you would need the starship enterprise to reach it. In reality that place the courts have not been in years. Everything the 2002 doe v Smith court said would have made the registry Illegal they now require on pain of prison.

Posted by: rodsmith3510 | Jul 9, 2017 9:29:55 AM

How many of these convictions were made by incompatible spouses? How many were really investigated and proved evidence?

Posted by: LC in Texas | Jul 9, 2017 12:23:46 PM

Let me see if I understand, as a non-lawyer, the wonderful legal reasoning behind the Acting SG's request for denial of certiorari to the Michigan Appeal:

- With respect to the Michigan Sex-Offender laws, the 6th Circuit was definitely correct (with-in the BS framework specified in Smith vs. Doe) and the Michigan laws are retroactive and punitive and ergo unconstitutional.

- other lower court rulings in other states/jurisdictions finding that "similar" provisions as found in other states/localities laws sharing similar features, are sufficiently different in their legal framework (whatever that means?) that residency restrictions, lifetime monitoring, requiring the immediate reporting of changes in (internet identifiers, car make/model, workplace, etc.) registration fees and etc. are non-punitive, non-retroactive and therefore constitutional.

- That retroactive application of International Megan's Law requiring notification to the feds of international travel well in advance and subsequent denial into a destination country (where SO laws don't exist and reciprocity is non-existent) does not interfere with the widely recognized right to travel and is therefore non-punitive and constitutional.

Me thinks, again, I thank God I am not a lawyer, that the SG is blowing smoke from where the sun don't shine.

Quit pi_sing on me and tell me its raining.

However, in our great country, because of Robert's lies in 2002 to the Supreme Court, this charade will be permitted to continue.

Posted by: albeed | Jul 9, 2017 12:29:43 PM

Won't be long at the rate they are creating rso 's another 10-15 years should give them the numbers to take over and drag everyone who supported pushed or ran the Megan's law registry scheme in front of one of their new judged and since that registry has cost multiple ex sex offenders to lose their lives it will be a capital charge with the appropriate final punishment to follow.

And sorry but the excuse "I was just following orders" excuse will go no where since the U.S. Killed to for all time after ww2 and Nuremburg Nazi trials.

Posted by: rodsmith3510 | Jul 9, 2017 8:58:27 PM


That's a pretty egregious mis-statement. They assert the Court concluded the exact opposite of what it actually concluded.

Posted by: Guy | Jul 10, 2017 9:50:24 AM

Guy -
Agree and exactly the point I was trying to make.

I guess it is wishful thinking on my part to wish the SG/DOJ would ever go back and correct their brief.

Posted by: Salmon | Jul 10, 2017 12:02:08 PM


Oh, I think it's already "corrected." I'm not sure that an error of that magnitude just kind of slides by without anything other than willful denial. I assume that the DOJ will continue to insist that the sky is purple, despite evidence to the contrary, so long as it suits their agenda. That's the same thing that's been happening on this issue for the last couple decades, I don't see any reason for it to change now.

Posted by: Guy | Jul 11, 2017 11:12:51 AM


You of all people should know that the "Law" is sacred and since the Supreme Court p__ped it out of their butts in 2003 it has become reality on their planet, wherever that is.

I, however, refuse to respect any person(s) who refuse to recognize any semblance of reality, no matter what their title or position. Some things are debatable, this isn't.

Posted by: albeed | Jul 11, 2017 2:55:40 PM

So, now how do we get what we lost, this is punishment,fees , time out of our life,stress, and tons more? Is civil suit next? Sign me up!

Posted by: Bill | Jul 12, 2017 8:44:03 AM


Agree with you. I suppose it is just disheartening for the last remnants of patriotism that I still hopelessly harbored.

Posted by: Guy | Jul 12, 2017 8:44:50 AM

Now that the Solicitor General has urged the Supreme Court not to accept Michigan's request for review; when does the court make a decision? The original date for a decision was back in March; is there a timeline for this decision to accept or not to accept?

Posted by: Bill | Jul 19, 2017 6:17:21 PM

I read on other post should be in October? If the supreme court hears it it should have a ruling by March 2018

Posted by: Bill | Jul 20, 2017 7:42:18 PM

I am on the SOR in Michigan. I am engaged to a wonderful woman in the Philippines for some years now. I have traveled there many times without any problems, just to be with her. Adam walsh law says she can't come here to me on a fiancé visa because of my CSC 2 plea in 2003. This is also been made retroactive, supposedly to fight against human trafficking. My claim is legitimate. It has nothing to do with trafficking, but politicians make blanket laws including words like "ALL" and "If you've ever been". So She can't come here to be my wife. She knows all about the incident that happened to me and feels that after 15 years to still be punished beyond the courts requirements at that time is BS. And now we have the International Megans law. Another piece of trash that has ended my ability to see her ever again. I was traveling there as I had many times before, in July 2017. This time our wedding was all paid for and meticulously planned, but as I reached immigration officials in manila, This Notification that was sent to them, caused me to be deported and black listed from returning. 2 hearts completely destroyed, even though our love is very real and our intentions honorable, and even after 15 years of abiding by every rule of law, We can't catch a break. How unjust is this. We are Christian people who have a strong faith in Jesus Christ. We believe that God will open the hearts of these people who turn a blind eye to injustice like this. I am a widowed, middle aged furniture maker, looking to fight against both of these terrible laws in any way I can

Posted by: Jerry | Jul 22, 2017 8:18:45 PM

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