The 6th Circuit today declared Michigan’s sex offender registry unconstitutional and as grounds; it being EX POST FACTO PUNISHMENT!!!
This news is HUGE, since Michigan’s SORA reads much like Florida’s.
The link to the opinion and and a news article are below.
In its opinion in Doe v. Snyder, the Sixth Circuit has concluded that the 2006 and 2011 amendments of Michigan’s Sexual Offender Registration Act (SORA), as retroactively applied to plaintiffs violate the Ex Post Facto Clause, United States Constitution, Art. I §10, cl. 1.
The Ex Post Facto Clause only applies to retroactive punishment, and the opinion notes that under the United States Supreme Court’s Smith v. Doe (2003), upholding Alaska’s SORA, the test is “quite fixed”: “an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show ‘by the clearest proof’ that ‘what has been denominated a civil remedy’ is, in fact, ‘a criminal penalty.'”
Judge Alice Batchelder, writing for the unanimous panel, applied the Smith v. Doe test for determining whether a statute that does not have a punitive intent nevertheless has actual punitive effects, including five factors:
- Does the law inflict what has been regarded in our history and traditions as punishment?
- Does it impose an affirmative disability or restraint?
- Does it promote the traditional aims of punishment?
- Does it have a rational connection to a non-punitive purpose?
- Is it excessive with respect to this purpose
In considering the history factor, the court relied on an amicus brief from law professors and discussed the relationship of SORA to ancient punishments of banishment. To this end, the court reproduced a map for Grand Rapids Michigan, illustrating (in blue) where persons under SORA were now prohibited from living, working, or traveling.
The map also figured into the court’s conclusions regarding the other factors, including the rational relationship. Indeed, the court found that SORA may actually increase recidivism rates and that “Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates.”
There were other constitutional challenges to SORA, but the court seemingly found the Ex Post Facto argument most determinative. The court’s originalist theoretical perspective on the Ex Post Facto Clause is striking:
Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter- majoritarian 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.”).
Thus, while the court acknowledged that the Smith v. Doe test was a difficult one to meet, “difficult is not the same as impossible” and Smith v. Doe should not “be understood to write a blank check to states to do whatever they please in this arena.” Most likely, Michigan will disagree and seek United States Supreme Court review to ask the Court to clarify its understanding.
I am a registered offender in Michigan, convicted in 2005. The state of Michigan still hasn’t published any information publically about whether it will obey the federal court ruling. It’s as if they hope people like me will still comply with the retroactive law out of fear. The parole department in Bay City is giving current parolees written guidelines stating that they only have to comply with the requirements in effect when they committed their crime. However, that guide also instructs parole agents not to give information to other offenders when they ask. It’s just ridiculous.
I would love to know what’s going on with Michigan…my 25 years is up and the the state isn’t saying anything nor are there updates from the aclu who is supposedly filing a class action to try and force the state’s hand….I’m trying to be patient as this is the first ray of hope we’ve had in years…if anybody knows anything…I’d be glad to hear it
I have not been able to locate the information on the internet yet, but the 1 page that i have a picture of appears to be an MDOC policy that the parole department is passing on to parolees. It does warn that the Michigan State Police department is reviewing everything and hasn’t yet determined how to change the registry to comply with the federal court rulings. Here are a couple of quotes from that document:
“Discontinue charging offenders registered solely under retroactivity with SORA violations or technical violations related to SORA, as they are no longer required to abide by SORA”
The next section outlines the registration requirements of sex offenders, which vary according to their offense date.
Requirements for registrants whose offense date is pre 1/1/2006: Report name change; Report address change; Report campus information; Verify according to Tier.
Requirements for registrants whose offense date is between 1/1/2006 and 6/30/2011: Report name change; Report address change; Report campus information; Verify according to Tier; Abide by Student Safety Zone Restrictions.
Requirements for registrants whose offense date was on or after 7/1/2011: Report name change; Report address change; Report campus information; Verify according to Tier; Abide by Student Safety Zone Restrictions; Report employment; Report internet identifiers (must be reported at the offender’s next verification period); Report vehicle information; Report phone numbers (must be reported at the offender’s next verification period); Report passport and immigration documents (must be reported at the offender’s next verification period); Report professional or occupational licenses (must be reported at the offender’s next verification period).
That shows how the registry requirements have gotten more onerous over the years. I have read that the state Attorney General did put out a directive advising agencies to not prosecute offenders for noncompliance related to retroactive requirements, but unless you can afford a good attorney, you just don’t want to push it and possibly become a test case. It would really be nice if the ACLU would update their information and advice on the matter.
Thanks, Gerald,
I just e-mailed Ms Aukerman and Juan Caballero again , on this very issue, this is starting to get ridiculous.
Where did you find your information? My question is since my conviction date was 6-19-92. That to me would mean I should be removed immediately like NOW. WHY, because when I was convicted Michigan had NO registry yet,. When I do get replies back from the ACLU. it’s always be patient we are working on it, and we are filing a class action lawsuit.
I even contact the cowards up in Lansing like that idiot Rick Jones, and Rick Snyder and Bill Schuette, and of course I get NO reply back from these COWARDS.
This is a reply for Bobby. I got my information from a man on parole in Bay City, MI, who was given the info by his parole agent. It specifically instructs parole agents not to give any help to anyone seeking to be removed from the registry. Is that dirty, or what? I am sure you will be able to petition for removal once they finally sort everything out, but it is obvious that they are determined to drag their feet on this issue. A word of caution though. It appears that Michigan has a rule that you are only permitted to petition for removal one time. So it would be best for you to wait until the state issues specific guidelines before you try it. There are lawyers out there who will take up your case, but they are very expensive, and they can’t guarantee success. I will post more info when I find it.
I have located one reference supporting my earlier post regarding changes in Michigan’s sex offender registry law, and how the requirements now vary depending upon the conviction date.
http://www.michigan.gov/documents/corrections/DOM_2018-23_SORA_609801_7.pdf
I hope that copied link works. It was the very last item on the Michigan Department of Corrections “Policy Directives” page.
http://www.michigan.gov/corrections/0,4551,7-119-1441_44369—,00.html
Of course, they haven’t corrected the actual Policy Directive it references yet. Here is what it says:
On August 25, 2016, the United States Sixth Circuit Court of Appeals in Doe, et al. v Snyder, et al.,
case nos. 15-1536/2346/2486 ruled that the retroactive application of the 2006 and 2011 amendments
to the Michigan Sex Offenders Registration Act (SORA) were unconstitutional. Both parties
appealed to the United States Supreme Court. The Supreme Court recently denied leave to appeal,
which means that the Sixth Circuit Court of Appeals’ decision on retroactivity remains in effect.
PD 01.05.115 “Sex Offenders Registration Act” and its implementing procedure are therefore revised
to be consistent with the ruling by the Sixth Circuit Court of Appeals. Specifically, this means that
the requirements of the 2006 amendment only applies to those registered offenders whose offense
occurred on or after January 1, 2006, which is the effective date of the 2006 amendment. Similarly,
the requirements of the 2011 amendment only applies to those registered offenders whose offense
occurred on or after July 1, 2011, the effective date of the 2011 amendment.
The Deputy Director of Field Operations Administration (FOA) shall issue instructions to Field Agents
implementing the Court’s ruling and this Director’s Office Memorandum.
I know my copy and paste makes it look a little off, but it is plain that the state is changing its enforcement of the registry. Nothing there about those who were wrongly placed on the registry even though there was no registry when they committed their offense.
I’m an Attorney who has represented Michigan SORA clients — you should consult with a qualified attorney. Without giving you legal advice, my very preliminary opinion is that if the acts you committed of which you were convicted and sentenced as a sex offender predated the 2006 and 2011 SORA amendments (those are the amendments the 6th Circuit Court of Appeals found constitute punishment) then you may have a viable Ex Post Facto challenge.
Highlights the problem right now in Michigan. Takes representation by a lawyer to get the state to obey the federal decision on a case by case basis. ACLU is still working on forcing the state’s hand, but it seems to be a long process. Their advice is to keep obeying the old laws until the situation has been resolved, or risk being arrested and having to fight it out in court, hopefully with a good attorney.
I am on Michigan’s Registry, put on it in 1995, but should not be they claim because I was still on parole in 1995, but I was convicted in 1992 when there was no registry, or talk of one, so not sentenced by a judge to register. So this is very good news for me I was originally put on it, for 25 years then it was changed to life. So far I have noticed they have changed my registration start , 3 times from 95 to 92 back to 95 and now says 92, so to me that means when they change me back to 25 years, I will be off the registry, unless they change the registration start date back to 95. I will have to wait and see, but I refuse to give them $50 bucks a year any more.
I think the law is right know no sex offender list end of story .. no more pay 50 a year or be none complaint !!! if you have kids go to school with they see there plays and football games and things !!!
As a law abiding citizen who knows many sex offenders I believe that the registry should only be a 10 year max regardless of tier. If someone is truly a danger then they WILL reoffend within that 10 years. Once the individuals 10 years is up they should be able to prove how they are moving forward positively with their lives. Then they should be expunged from the registry. Otherwise what’s the point of “serving your time” if you must serve time once released. I have first hand witnessed these guys be harassed, isolated and refused jobs, housing and can’t even be a part of their kids school activities.
I’m on the registry, but not convicted. Everything you say is true. I am extremely lucky in that I got 2 Associate’s degrees, but had to fight my way into the school because of the registration, I had a stepchild for some time and felt extremely paranoid about even going to pick him up from school much less get involved in activities, I’ve been through several jobs and still have to settle for small business owners that will actually listen to my story. Large corporations like Siemens and LabCorp and even WalMart hire me right away and then when the background check comes back even though I’m not convicted they don’t care. They call me a liability. I have to fight for everything, things you wouldn’t even think a person should have to fight for. I can have a gun but I can’t be an EMT to help people. There are many that have it far worse than me. I’ve had bottles thrown at me while walking down the street, called every name in the book, and ostracized to the point of not even feeling that I am a human being anymore.
Long story short, you are right. It is EXTREMELY unfair and happens in NO other crimes. It’s good to hear someone on the outside say it. Means other people might actually think the same one day.
I listened to the January hearing tape available at http://www.ca6.uscourts.gov. From the Opinions and Oral Argument drop down menu, I chose Audio Files of Completed Arguments, then Search for Oral Arguments. I then searched on Case Number 15-1536. This search returned court audio for the argument from January 27 of this year. You can Play or Save the audio file (a 40MB MP3 file within a ZIP archive). If you have about 40 minutes to kill, and you want to hear how dumb the State’s case is, I would recommend listening to the argument. The judges acknowledged some things that have been bothering me for years, and I feel calmer now. Non-elected judges – to the rescue! Sadly, elected judges who have acquiesced to mob-mentality voters have done huge disservice to registered citizens.
Hey, thanks a bunch, RayO!
This is great news! I would estimate that 70% of Florida Statute 943.0435 is retroactive, considering in 1997 it was two pages and in 2016, it is now 9 pages.
This made my night!
I’mma gonna to add the stuff after the passage that you quoted as well, because even though it’s not quite as important in the legal sense, it gives a little visceral thrill to read the practical result
“**The retroactive application of SORA’s
2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.**
As we have explained, this case
involves far more than an Ex Post Facto challenge. And
as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues
are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because **none of the contested provisions may now be applied
to the plaintiffs in this lawsuit**, and anything we
would say on those other matters would be dicta.
We therefore reverse the district court’s decision
that SORA is not an Ex Post Facto law and
remand for entry of judgment consistent with this opinion.”
(little starry thingies added XD )
Understand this. Ever year since my two year probation competed, in 2002. Has been more punishment then the last.