The abstract to Joshua E Montgomery’s contribution to the Akron Law Review does one of the best jobs of explaining the application of Ex Post Facto to sex offender registration laws, I’ve read. In his article, titled, “Fixing a Non-Existent Problem with an Ineffective Solution” he explains why the Michigan Court (up to the 6th Circuit) finally “got it right”!
The abstract and a link to the article appear below:
Sex offender registration and notification laws (SORAs) in the United States apply not only to those who commit sex offenses after the enactment of such laws, but also to those who committed sex offenses before those laws were enacted. However, the Ex Post Facto Clause of the Constitution prevents the retroactive application of a punitive law; this means that a person cannot be punished for a bad act that the person committed before the law punishing that act was enacted. Importantly, the Ex Post Facto Clause does not prohibit the retroactive application of a civil, regulatory—i.e., non-punitive—law. Thus, to survive constitutional scrutiny, SORAs must be deemed civil, regulatory measures that are designed to achieve a non-punitive goal. The federal courts—including the United States Supreme Court—have consistently characterized SORAs as just that: non-punitive, civil, regulatory measures designed to protect the innocent from dangerous sex offenders by deterring the commission of subsequent sex offenses.
Thus, the constitutionality of SORAs rests on two fundamental assumptions: (1) that sex offenders recidivate at very high rates; and (2) that restrictive SORAs actually reduce recidivism. The Sixth Circuit, in its Doe v. Snyder decision, which reviewed the constitutionality of Michigan’s SORA, carefully examined these assumptions and found that both were false. Federal government recidivism data and social science studies show that sex offenders—a category that includes not just those convicted of rape, but also includes a high school senior convicted of statutory rape because he slept with his underage high school girlfriend—do not recidivate at high rates. In fact, most sex offenders recidivate at low rates. Moreover, SORAs do not reduce recidivism; some studies even indicate that such laws may be causing recidivism rates to increase. Thus, the Sixth Circuit found that Michigan’s SORA unconstitutionally violated the Ex Post Facto Clause, in large part because it lacked a rational connection to a non-punitive purpose. This Article carefully examines the available data on sex offender recidivism rates, as well as the failure of the federal courts (prior to the Sixth Circuit’s Doe v. Snyder decision) to give much more than a passing glance at that data. This Article proposes that other federal courts should follow the Sixth Circuit’s example and carefully examine the factual justifications upon which the constitutionality of SORAs rests. Only then will the federal courts be able to protect the rights of United States’ citizens to be free from unconstitutional ex post facto punishment.
Recommended Citation
Montgomery, Joshua E. (2017) “Fixing a Non-Existent Problem with an Ineffective Solution: Doe v. Snyder and Michigan’s Punitive Sex Offender Registration and Notification Laws,” Akron Law Review: Vol. 51 : Iss. 2 , Article 7.
Manual in effect on the date of sentencing would violate the ex post facto clause of the United States Constitution.”) (citing
In Missouri also they have decided that Ex-Post Facto Laws do apply to those on the registry. but they still ask you to list all your info , vehicles, e-mail , web sites etc, but if you don’t they know there is nothing they can do. They have passed a number of more punitive laws since its start , but now the sheriff s office has to try and keep track of when each of these laws was passed ,who they apply to ,when the registrant offended, and figure out which laws apply to who. They can’t even keep track of it. So if there is some of the information that’s not up to date they just say , bring it in next time. As long as the public doesn’t know what is really going on the police know all that information is just crap anyway. It’s all just a show.
Not sure if this article was ever posted on the site, but it’s a good read:
http://america.aljazeera.com/articles/2015/8/27/harsh-sex-offender-laws-may-put-whole-families-at-risk.html
I would love a lawyer opinion: if I was going through my hell again (sentenced 1993) during my probation Megans Law happens (1997) and I was dragged back to jail to sign the Registration Act, I would of said no. Take me to prison, sentence me for non compliance. It would of been a short stint and at least Prison Parolees can get into work programs, half way houses and basically get back on their feet easier than any Sex Offender can. Its possible I would not be registered today. So Lawyers, my offense happened 4 years before Megans Law and its worse now for me today! @JEV1A
please see our attorney referral page if you don’t have your own.
Ok, so if the 6th Circuit got it right with Does v. Snyder, then why didn’t SCOTUS cooperate? In my opinion, SCOTUS not hearing Snyder and addressing the registry head on, ruling yea or nay, was akin to to Ali’s phantom knock out punch of Sonny Liston back in ’65. By not addressing the 6th Circuit’s holding, SCOTUS rendered a non-existent blow to MI’s registry and this, I opine, is why the state of MI is not complying. SCOTUS should have heard Snyder and rendered a judgement—yea or nay, plain and simple. Doing so would have given the Country the right direction on sex offender registration/registry. Still the issue hangs overhead like a black cloud ever threatening, menacing. That crap SCOTUS did, denying the MI AG’s cert, was a cop-out plain and simple.
Is the ACLU doing anything to help this cause?
yes, they represent us in our SORR challenge and in other challenges across the country.
Charles, the Supreme Court usually does not grant certiorari when a Circuit Court of Appeal strikes down a state law unless either SCOTUS seeks to reverse the appellate court or there is a split among the Circuits. According to its own rules, SCOTUS only grants cert. if at least four of the Justices agree to hear the case. This most likely means there are not (at least) four Justices opposed to the 6th Circuit’s opinion — a good thing. Certiorari granted simply to affirm a Circuit Court of Appeal ruling is rare when there is not a split among the Circuits.
Correct – this was our opinion too.
absolutely correct. The case was against the State of Michigan not against the United States. By not speaking the SCOTUs is agreeing with the decision and it ends there. I wish I could understand why we have yet to have our day in our Federal Circuit or with our state Supreme Court. Has there been absolutely no one to bring a case via a private attorney??
We retained a private attorney who is preparing a Florida Ex Post Facto challenge.
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A nay from scotus would have been way worse than not hearing the case as they did…a nay becomes the template for the whole country…this leaves the argument open instead of just condemning all to a lifetime of registration with out any hope..I’ve been told that Michigan WILL have to comply eventually..maybe even later this year hopefully…
The SCOTUS upheld the 6th Circuits decision that Michigan’s application of SORNA was unconstitutional by refusing to review the decision. SORNA itself imposes no restrictions on registrants other than the requirement to register.
The standard was whether or not the state punitively exceed the requirements of SORNA, which it did. There was no decision to review. All states are essentially now “on notice” to review their laws. If a similar case comes up through another circuit then there is cause for the SCOTUS to become involved.
The court for better or for worse I think tries not to legislate from the bench whenever possible.
My situation was in 1984 in Michigan, and in 2011 they started the retroactive thing. Maybe they are worried of a big lawsuit.
If that’s true I would be first in line.
Living in Florida now 34 years later.
okay from my understanding how do civil cases become a criminal matter. if this is a civil like not changing your id or your address location. how can the state charge you with a felony?. when off probation. my case was in 8/5/2005 dose this mean that fl. state
over stepped my civil rights. because of there retroactive laws?.
just asking
Because civil regulations are enforced via criminal punishment – otherwise there would be no teeth to make people have a driver’s license for example. Courts have to first decide on the punitive/civil question first, which is the hardest step. If the court says Civil, then you appeal, if they say Punitive then you can move forward and ask the court to then decide the ex post facto question (once the civil/punitive question is answered the ex post facto question is an obvious “of course”.) How that is all navigated is what a good lawyer is for and the process differs in every state. Also keep in mind that when we hear of the final outcome of these cases, they have been in the courts for years, sometimes as many as ten+! When you lose at the local/district level (and most do) you apppeal, if you win, the State then appeals and so you wait another year or 3, if the appeals court keeps to the civil bullshit, on you go to the state supreme court after a few more years and that’s only if the state supreme court AGREES to hear it, which our state supreme court has REFUSED several times to hear cases similarly situated. Then you are bound to the appeal’s court decision and your case is dead at the State level with your only recourse being the SOCTUS and they very rarely decide to hear a case that was knocked down by both the District, appeals and refused by the State supreme court. See, the higher courts are never forced to hear any case they don’t want to. So you have to start all over again, this time using the Federal system, again starting out at the local Federal Court house, then the Federal circuit appeals court in Atlanta and so on…. all of that takes years and years and is what Florida Action committee is currently involved in regarding the Dade county folks stemming from actions starting in 2008(9). They recently have had a victory in Atlanta with that court in that they will hear the case as is and they have allowed the case to move forward after a laborious, time wasting effort on the part of the State of Florida to have the case thrown out on some technicality. When oral arguments actually occur for that case, I do not know but i believe that is the next step if i’m not mistaken.
They may have got Does Vs Snyder right but the state of Michigan doesn’t see it that way and aren’t cooperating…Pennsylvania gets their ex post facto ruling and people start coming off the registry almost immediately…..nice to see somebody publish what we have all known all along….
What good is it to get off the Registry If you still have to register if you visit states like Florida that’s the problem If your not on the registry in your own state you shouldn’t have to register anywhere
that’s why we need a federal law deciding once and for all the ex post facto issue. Until then it will be decided state by state. And i assume you meant “move to” rather than “visit.” If you are not on a registry in the state where you live but proactively go to to register with states you visit you are just asking for a living hell. When a state takes you off their registry, you’re done registering as far as I am concerned. I legally moved to a state where I was able to bring a court case in that state, won and was excused from registering but I am still on the registry in Florida. I never ever register in any state that i visit (especially Florida – let them come find me, it’s well worth the risk. who’s scared of jail when faced with this bullshit on the street??) and I also will never ever register in any state if I ever move – which I won’t. But i need off the registry in Florida and that is what i am currently working on. I don’t understand why more people are not leaving Florida – i don’t think they realize that the chances of moving to another state (like Ohio) and having that state decide that registering isn’t required, is quite high!
Thanks, very good to know this. From Florida!
I am curious though, have you heard anything about the constitutionality of imposing additional penalties (under the color of it being a civil penalty as vs a criminal penalty)?