Janice’s Journal: Sixth Circuit Speaks Truth

The Sixth Circuit Court of Appeals spoke the truth this week when it declared unconstitutional the retroactive application of sex offender laws in the State of Michigan.  In doing so, the Court demonstrated uncommon courage and set an example that should be followed by courts throughout the land.

The laws at issue in this case are common and can be found in many states.  First, they prohibited registrants from living, working or loitering within 1,000 feet of a school.  Second, they required registrants to report in person updated information regarding such matters as vehicle ownership and internet identifiers.

As in many states, the professed purpose of the laws was to make communities safer.  As in many states, the professed purpose was based upon the myth that registrants have a high rate of re-offense.  The Court soundly debunked that myth by referring to several recent studies, including a study which reported that such laws have not decreased, but actually increased, registrants’ rate of re-offense.

In its decision, the Court boldly stated that the Michigan laws resembled “the ancient punishment of banishment” as well as “traditional shaming punishments”.  The Court also stated that the laws branded registrants “as moral lepers” which made it difficult for registrants to get and keep a job, find housing and reintegrate into their communities.

In its decision, the Court did not ignore the U.S. Supreme Court decision, Smith v. Doe, which infamously declared that sex offender laws do not punish and therefore can be applied retroactively.  The Court, in fact, acknowledged the Smith decision and its difficult two-part test but stated “difficult is not the same as impossible”.  The Court concluded the plaintiffs in the case met that test and then bluntly stated that the Smith decision is not “a blank check to states to do whatever they please in this arena”.

The Court clearly stated that the Michigan laws advanced “all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence.”  The Court also clearly stated that punishment may never be retroactively imposed or increased.  The Court further stated that the fact that sex offenders are so widely feared and disdained by the general public implicates the core principle embodied in the Ex Post Facto clause of the U.S. Constitution – tyranny of the majority.

Thank you, Sixth Circuit, for speaking the truth on this subject.  We look forward to the application of your brave decision to many states throughout the land.  We also look forward to a review of your decision by the U.S. Supreme Court because it will provide that Court with an opportunity to overturn the unfortunate and misguided Smith decision.

Read all of Janice’s Journals


MI: Court voids state sex offender registry for imposing unconstitutionally retroactive punishment [UPDATED]

Related posts

Notify of

We welcome a lively discussion with all view points - keeping in mind...


  1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
  2. Please keep the tone of your comment civil and courteous. This is a public forum.
  3. Swear words should be starred out such as f*k and s*t
  4. Please stay on topic - both in terms of the organization in general and this post in particular.
  5. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
  6. Please take personal conversations off this forum.
  7. We will not publish any comments advocating for violent or any illegal action.
  8. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address.
  9. Please refrain from copying and pasting repetitive and lengthy amounts of text.
  10. Please do not post in all Caps.
  11. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links. Posts that include a URL may take considerably longer to be approved.
  12. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
  13. We will not publish any posts containing any names not mentioned in the original article.
  14. Please choose a short user name that does not contain links to other web sites or identify real people
  15. Please do not solicit funds
  16. If you use any abbreviation such as Failure To Register (FTR), or any others, the first time you use it please expand it for new people to better understand.
  17. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
  18. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
  19. We no longer post articles about arrests or accusations, only selected convictions. If your comment contains a link to an arrest or accusation article we will not approve your comment.
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  

Inline Feedbacks
View all comments


Well said. And thank you Janice for all you do.

Does this mean that All states will have to abide by this decision?

The U.S Sixth Circuit did something the California Supreme Court failed to do last year in People v. Mosley:


The Sixth Circuit recognized registration, at least in Michigan, as a form of punishment.

Please tell me this means something to Missouri.

Janice, et al: It may be hard to specifically prove this, but I FEEL deep down in my heart that this decision happened because of you all and your continued diligence and hard work in California. I hope and pray that this first “domino” that has finally been pushed over by this intelligent and brave judge will result in all of the rest of these “dominoes” being flattened down!

Michigan’s own David M. …that really is nice to hear the influence and help. Thanks for communicating that.
Michigan..! US 6th Circuit Appeals Court.

Janice I have always said that two wrongs don’t make a right. You know offenses do come but woe to him, through whom them come. Now we can talk about trespasses or we can talk about doctrines of men but in the end let God be true. Showing disrespect is just what all this is and we as humans can’t even image. This is a lesson for all to learn.

people wake-up…the key statement in this case besides the punishment issue which is EXTREMELY more important is the statements that there is no increase in public safety and no decrease in re-offense rates…a and that the law is absolutely useless…..I haven’t been able to read the entire decision yet but what I hear here is that they actually referenced or recognized the false facts that was used to justify these laws….forget the punishment issue it is time to abolish the current registration scheme and force the legislature to overhaul the entire registration scheme to include only those that can actually be proven through clear and convincing evidence standard to be some kind of threat to public safety….it’s time and the issue is ripe for SCOTUS

Big takeaway not mentioned is what a smart batch of cases this was to bring. How often have we seen these laws/precedents upheld by cases where the justices think, “these are exactly the people these laws are made for.”
Now, because the system was attacked from the bottom up, the house of cards crumbled for all in the 6th circuit. Great day that’s been a long time coming!

yep it’s to bad because Frank Lindsey would make a perfect candidate for the abolition of the current registration scheme if only Janice’s team would argue it…

With tears in my eyes, Janice, I thank you for supporting and believing in me. I hope you and your staff can feel the embrace I am giving all of you at this moment. Our lives have been made so difficult by those who don’t care, you give us all a feeling of hope.

Thank you.

While this is a great decision for those accused of crimes committed after 2006, it fell really short for everyone else and all future registrants.

The lawsuit challenged the ex-post facto application that affected them since the plantiffs’ crimes were prior to 2006, as well as many other unconstitutional parts of registry that affect all registrants. Once the judges determined it did violate ex-post facto, they refused to address the rest of the issues since it didn’t apply now to these particular plaintiffs since they are mow free of the burden.

It’s great that the judges acknowledge the other things are good arguments and registrants may have had their rights infringed on with SORNA, but bad that they didn’t use all of that evidence that was presented to extend their ruling to include that. The “statement of fact” that you can look at in the links is tons and tons of good evidence that is now wasted on a lack of rulings on all issues.

See the complaint:
Plaintiffs sued Michigan Governor Richard Snyder and Colonel Kriste Etue, the director
Michigan’s state police (collectively, “Michigan”), challenging SORA’s validity on a number of
different grounds, including that portions of SORA are unconstitutionally vague, that its
requirements should not be construed as creating strict liability offenses, that SORA violates the
right to free speech guaranteed by the First Amendment, and that it violates the Fourteenth
Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel.
Plaintiffs also contended that SORA’s retroactive application to them—specifically, the
retroactive application of the amendments that went into effect starting in 2006 or later—
amounts to an Ex Post Facto punishment prohibited by the Constitution.

and see the final statement in the ruling:

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.

(fyi – dicta = a statement of opinion considered authoritative (although not binding))

I note to readers (and Janice, if I’m wrong, please correct me), this opinion is saying that the entire registration regime together as it is imposed in Michigan is punishment. It then goes on to say that the amendments added in 2006 and 2011 cannot be applied retroactively, as they are punishment as included in registration too.

No one is being released from registration under this ruling. But of course, I don’t think anyone in Michigan is subject to registration retroactively, as a lot are in California.

As this pertains to California, the state’s registration law(s) goes all the way back to 1943 (or is it 1947); California was the first state to have registration, and the only state for many decades. By the time the Clinton administration made registration a national mandate in the mid-1990s, only two other states had imposed registration. Since then, California, too, started piling on the amendments — although it already had done a number of them over the decades, very key ones here being that those who got 1203.4 PC relief (expungement) could stop registering.

That relief from registration via 1203.4 was lifted in the mid-1980s for felons, and in the early-mid-1990s for misdemeanants — and at least since the Clinton mandate and language added to 290 declaring it not to be punishment, that change has been applied retroactively to all those people who had met the standard to be relieved of registration and had been relieved — after years of no longer having to register, suddenly they had to start registering again and ever since and for the rest of their lives. What they had worked for, met the standard for and been granted was willy nilly taken away with the flick of a pen.

If the reasoning in this Sixth District case were applied to the California registration regime, it seems it might bar retroactive enforcement of even the basic registration requirement for both felons and misdemeanants who had gotten 1203.4 relief prior to the state retroactively lifting that relief.

This was something we tried to get partially in Doe v. Harris, but the Ninth Circuit sent that case to the California Supreme Court, which bent over backward, as it ALWAYS does, to come up with a lying excuse to shoot down Doe. That case was based on the state of the law at the time one enters a plea bargain.

We can only hope SCOTUS does not shoot down this Sixth District opinion, or water it down so it does not hold that even basic registration is punishment within the rest of the Michigan law.

On that point, I note there likely are added complications as applied to California. I don’t know how the Michigan law is written on the books, in a single statute or in many. This Sixth Circuit opinion speaks of it being punishment in consideration of the entire regime together, not on the basis of nothing but basic registration — I think Michigan must have it all under a single statute number.

California used to have 290 as a single statue, that is why it is referenced as that. But about a decade ago, California split 290 up into a long list if different statute numbers — that makes it much more likely to salvage parts of it, and would require a different look at the specific 290 statute that imposes the basic registration requirement. As a separate statute, basic registration could be much more difficult to declare to be punishment, even if all other related statutes were — under this Sixth Circuit ruling, since that spoke of the entire regime together.

California made the various parts effectively severable so the entire regime would not be endangered by a ruling against a single one of them — the state was fully aware it was adding amendments that might very well endanger the entirety of 290, so it separated them. So, for instance, if residency restrictions were held to be punishment so not applicable retroactively, that would not necessarily means registration itself could not be applied retroactively, as in California, they are different statutes. And it seems to me that SCOTUS has already ruled that registration is not punishment, so while it is deemed punishment under this Sixth District ruing because it is part of the total regime, in California, it separate.

ADDENDUM: This Sixth District opinion also decried the approach Michigan takes of deciding tiers based simply on the offense, not on a review of each applicant individually. I have advocated our tier proposal nix such reviews, and instead base the tiers on the offense. But my proposal differs from Michigan’s approach, as I also say to include the possibility for anyone to apply for a lower tier and be reviewed for that — I do believe that would easily get around what this Sixth District opinion said about basing tiers on the offense rather than a review. I do not for a minute think this Sixth District opinion should be construed to justify a tier proposal in California that requires those reviews, they will only serve to put many people in a higher tier.

can’t wait to read this decision I seem to be having problems opening it on my phone….

While lawmakers can argue the registry is “administrative,” the restrictive laws passed using said registry are anything but, and I for one applaud the sixth circuit for finally acknowledging this.

thats right no more they better have all the data to back their stance and argue this with precision and flawlessly…this is really good though since if this goes to SCOTUS and these attorneys are not competent enough to succeed than the court itself has left the possibility to challenges on the other issues…..I think these lower courts and even our own Supreme Court are encouraging a challenge on the real issues and are even doing what they can to give us ghe fodder we can use and keep the issues open until a successful challenge presents itself…I could be wrong but it sure appears that way to me….

why don’t we ever hear and nobody ever uses the 2008 Alaska decision I believe should basically overturn the 2003 decision in Smith….the 2008 case has actually been revisited in other cases in Alaska after the 2008 decision ( and was affirmed ) but I haven’t been or heard of it being used anywhere else…..dumbfounded again……here’s a link to an article I wasn’t able to open the pdf from my phone for some reason but it’s there…

hopefully someone can explain to me why this case isn’t being used

thank you Robert great video and I’ve only had time to see the first couple of minutes so far…I’ll be watching the rest as soon as I can

I understand the process Robert I know that the Alaska case doesn’t officially overturn the SCOTUS decision but it is extremely good ammo that should be used and pointed out since Alaska is basically where all these new rules and regulations started and it’s the same state Supreme Court that is in direct conflict with the smith v doe case that originated in Alaska…it’s just that I hear so much surprise and focus on cases or states that are just now saying it’s punishment when we have several other courts such as Alaska that declared that years ago but we never hear about them…