DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional
A Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016), 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 a 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 sex offender-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.
The full petition can be viewed here:
https://www.justice.gov/sites/default/files/briefs/2017/07/07/16-768_snyder_ac_pet.pdf
I too read the full decision, and both briefs and the SGOpinion. The SG opinion in my view was expertly done, classic DOJ lawyeting. Mary, I don’t share the view it was rushed and illogical. It very slyly and d eviously debased and devalued the significance of the 6th Circuit ruling, saying this was just cleanup and Michigan can fix all this by just rewriting its law. Downplaying whilst redirecting to the other courts of review as similar in action. It was damn sneaky. No one, repeat no one, should read that brief as helpful for our cause. Better read it again if you do.
The registry came into effect because the supreme court said many years ago that the list would not be punitive to those on it. obviously years later they could not be more wrong(see definition below)
The fact that if your on it you cannot get the majority of jobs, you cannot live in the majority of areas and everyone in the world can harass or worse harm you because your on the list and a website showing your face and address is about as punitive as it comes. why has this simple fact not been used to overturn the original decision?
is not being employable or being allowed to live where you like not punishment? if you deny anyone of color or religion a job or place to live because of what color they are or what religion they practice is that not punishing them? is that not punitive?
baseball player playing in the college world series this year from oregon state was supposed to be drafted in the 1st round of the draft meaning millions of dollars to him, but because of something he did when he was 15 that landed him on the RSO list not only made him leave the world series early as soon as espn found out but also caused him to not get drafted at all by any team, is that not punitive? people say well he has his degree from Oregon state to get him a job don’t feel bad for him,, don’t they understand that being on the list masters degree or not he is getting hired no where they do background checks?that the majority of RSO’s if not self employed have menial jobs no matter the degree or experience?
pu·ni·tive
ˈpyo͞onədiv/Submit
adjective
inflicting or intended as punishment.