Excellent News: Michigan's Sex Offender Act Unconstitutional
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.
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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.