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.
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