UPDATED with media links – Today the U.S. Court of Appeals for the 6th Circuit held that recent amendments to Michigan’s Sex Offender Registration Act (SORA) are unconstitutional because they impose retroactive punishment on sex offenders in violation of the Constitution’s prohibition on ex post facto laws. Among other things, the plaintiffs argued that amendments to Michigan’s SORA increased the severity of its requirements after their convictions imposed retroactive punishment. In John Does #1-5 v. Snyder, the Sixth Circuit agreed. Full Article
Related Media Articles
Federal Appeals Court Calls Michigan Sex Offender Registry “A Punishment,” Bars State from Imposing Draconian Restrictions (ACLU Michigan – including related documents)
added August 28
http://reason.com/blog/2016/08/26/6th-circuit-says-michigans-sex-offender
http://www.freep.com/story/news/local/michigan/2016/08/25/michigan-sex-offender-registry/89367938/
http://www.freep.com/story/news/local/michigan/2016/08/25/michigan-sex-offender-registry/89367938/
http://michiganradio.org/post/appeals-court-sex-offender-law-flawed-not-working
http://wemu.org/post/appeals-court-says-michigan-sex-offender-law-flawed-and-not-working#stream/0
added August 30
Hi Janice. Do you feel that this will/could help in any way, now or in the future, in California?
This is outstanding!!!!
Now that’s something to add to the WIN column.
They finally come right out and say that today’s monster of a registry is nothing like the Alaska case in 2003 where SCOTUS ruled it not punitive, and is in fact, very punitive now.
The next step is to get this to happen in all states, and/or get it to SCOTUS again. I thought that when there were different rulings in different states federal courts, the issue had to make it to SCOTUS. We can’t have some states where a national list is ok and some where it isn’t.
We still need to challenge the entire registry and not just ex-post-facto, because nobody should be subjected to it no matter when their crime occurred or occurs. Hopefully this opens it up to cruel and unusual punishment challenges as well as challenges to Due Process violations since the registry and its arbitrary lengths of time to be on it are not based on an individual analysis, but just on a long list of crimes that may or may not be sexual in nature.
I don’t see anybody addressing the fact that the current registry system has expanded to the point where it is just a separate and illegal form of supervision existing outside of the established accepted procedures of courts and probation. It used to be that when you are on probation you had restrictions to protect the community based on your individual threat to society, and those had procedures to be made harsher or easier depending on your situation. Once you served the judge ordered amount of time, or were granted early release for being deemed “rehabilitated”, you were free to live your life. Not with “registration”. There is no modification to your restrictions, no path to change them, no correlation between restrictions and your threat, and instead of reporting to an office setting at a time you schedule you are at the mercy of going to a police station when they say to, and can sit there for hours and hours.
Through the “registry”, legislatures have created an entire punish and monitor system void of the established processes, procedures, and protection of constitutional rights of the court and probation system. It couldn’t be more unhinged unless they start hanging people that violate rules….we’ll see how long it takes for that to happen. I’ll be Florida will lead the way.
BOOM! This is awesome news… In your face! bout time. Let keep the momentum going.
This really is very exciting and encouraging.
The Volokh Conspiracy which is a legal blog on the Washington Post, has also written this:
“Court voids state sex offender registry for imposing unconstitutionally retroactive punishment”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/25/court-voids-state-sex-offender-registry-for-imposing-unconstitutionally-retroactive-punishment/?utm_term=.eaae5fa86b1e#comments
Finally..!… The train has Stopped on this RailRoadedistry..!
Thank You 6th Circuit US District Court of Appeals.
Separation of Powers Works..!!
Thank You..!
This is H U G E.
This is huge! Very significant ruling. And from a federal Circuit. First time a federal circuit court ruled SOLs were punishment
Everyone should read the 13 page ruling.
This is great, and it’s extra cool because that’s where I was convicted. I expect this to be challenged quickly, but I like where it’s headed.
So if the 6th Circuit is critical of offense based tiers in MI, are we going to see the MI state legislature incorporate a “risk” based tiering that relies on the Static-99R scam? “Individualized assessment” should not be used in conjunction with a scam actuarial instrument. The way I see it, the Static-99R blowhards will line up and use this great decision as an opportunity to get MI, as well as other states, to incorporate psychic, minority report style, pseudo science. Of course I speak of the Static 99 scam.
I particularly like the part where the opinion casts aspersion on the “frightening and high” myth and then notes that “Michigan has never analyzed recidivism rates despite having the data to do so,” as if challenging the state to provide a rational basis for the registry. But everything about this opinion is very encouraging. It’s wonderful to have a judge discuss actual research, not just precedence. And the opinion itself is very easy to read even for a layperson. Kudos to the author, Judge Batchelder.
This is the greatest news for the hit list ever since it was created!
If this holds up i will have to research MI’s old laws and maybe move there and be off the hit list yippie!!!!
“…is something altogether different from and more troubling than Alaska’s first-generation registry law.”
OH MY….is this judge referring to the SCOTUS case that seemed to give legislatures a blank check to enact whatever laws they want???? If so, then THIS IS HUGE!!!
This judge gets it, and I pray that this decision resonates LOUDLY throughout all judiciaries in this land. This may just be the “crack in the dam” we’ve been waiting for.
Whewwwwwwwwww!
Thank you to all involved in this monumental ruling…ACLU of Michigan & others & of course to the US 6thCircuitCourt for protecting our Constitution . Thank You greatly.
And may that ruling rumble across to all states and cause this california railroadedistry to stop and dismantle. Its ready. The Constitution Works ..!
Not to throw water on this because it’s really good news but… the opinion seems to contradict itself in some areas. Calling SORA bad while using Smith as the “guiding light” when Smith has some of the very problematic effects that SORA has. It’s a huge step but it doesn’t go far enough for me. All forms are punitive.
I would bet you could go at Alaska’s as well and walk with a win if this holds up. I’d also bet that even though it isn’t written in the way of intent, you could use the legislators floor speeches as evidence of intent to punish.
I so want to get excited by this ruling. It sounds amazing. But I’m going to contain my excitement until we get an opinion from Janice. I assume this decision will be appealed by the state, so it could be several more years to actually get to SCOTUS. But the way this decision was worded is beyond belief. It’s exactly what we needed it to say.
This is a huge, huge ruling. The Court went out of its way to give SORA the business, as well as expressing a healthy dose of skepticism concerning the utility of registration as a public safety scheme and the continued viability of Smith v. Doe.
If Michigan seeks cert to SCOTUS (and they take it up), Smith v. Doe is going to get put on trial. Fingers crossed they don’t grant an en banc rehearing and reverse the unanimous panel decision.
I wouldn’t jump for joy yet. The court did emphasize “retroactive” which means going forward, the state of Michigan can continue their heinous policies on new offenders. And just because the judge used the word punishment doesn’t mean it magically voids the Alaska decision. If the state of California suddenly starting flogging registrants in a public square, any reasonable federal judge would call that punishment. But it doesn’t mean they would say the registry itself is punishment. Michigan just went beyond what’s reasonable. This ruling is very similar to a Florida ruling where a county went beyond the state’s residential ordinance restrictions by not even allowing a registrant 1,000 feet near a school bus stop. A court forced the county’s hand but it doesn’t in any way jeopardize Florida’s statewide ordinance
Yup this is big!! Clearly an indictment of the unconstitutional Adam Walsh Act passed in 2006 that required SORA using conviction based determination of tiers, conviction based registration/ notification and retroactivity….. and all never part of the 2003 SCOTUS decisions. Certainly the smug bureaucrats in DOJ and the SMART office are raising an eyebrow at this today.
The suspense is killing me waiting to hear what Janice says
I’m not going to play armchair lawyer and try and figure out what the ruling means
this is great news but Alaska’s Supreme Court has already made this same ruling basically overturning (I would think) the 2003 case…
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Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional
On July 25, 2008, the Alaska Supreme Court declared Alaska’s Sex Offender Registration Act unconstitutional. In a blog that I posted on this website on June 5, 2008 entitled “Sex Offender Registration: Is It Punishment?,” I observed that “[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska’s sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature’s intention in passing that particular law was not to punish sex offenders but rather to create a ‘civil, nonpunitive regime.’ ” I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting). It appears that the Alaska Supreme Court shares my view because it recently declared Alaska’s Sex Offender Registration Act (“ASORA”) unconstitutional in the case of John Doe v. State of Alaska. In John Doe, Alaska’s High Court stated in relevant part that: We first ask “[w]hether the sanction involves an affirmative disability or
restraint.” The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.” But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].” First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution. The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive. Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years. All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day. As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.” Second, we agree with the conclusion of Justice Ginsburg, also dissenting in Smith, that ASORA “exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.” In the decision reversed in Smith, the Ninth Circuit observed that “[b]y posting [registrants’] names, addresses, and employer addresses on the internet, the Act subjects [registrants] to community obloquy and scorn that damage them personally and professionally.” The Ninth Circuit observed that the practical effect of this dissemination is that it leaves open the possibility that the registrant will be denied employment and housing opportunities as a result of community hostility. As Justice Souter noted in concurring in Smith, “there is significant evidence of onerous practical effects of being listed on a sex offender registry.” Outside Alaska, there have been reports of incidents of suicide by and vigilantism against offenders on state registries. We also disagree with the Supreme Court’s conclusion in Smith that the obligations ASORA imposes are less harsh than the occupational debarment which the Court has held to be non-punitive. The Supreme Court has upheld the constitutionality of post-conduct professional sanctions that included the prohibition of further participation in the banking industry and revocation of medical licenses. A comparable bar for sex offenders who pose a risk to children might be employment in places frequented by children. But the practical effects here can predictably extend to all employment opportunities as well as to all other non-employment aspects of life, including housing opportunities. There are published reports that offenders are sometimes subjected to protests and group actions designed to force them out of their jobs and homes. We agree that “[t]he practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment.” I would suggest that anyone interested in the subject of sex offender registration laws read the John Doe opinion in its entirety because of its well-reasoned approach to a very emotionally-charged issue.
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does anyone know when ca started publicly accessible Megan’s law and what kind of changes occurred after June 6 2006?
sorry I just copied and pasted the info I’ll just give a link for any other articles
here’s the basis of their opinion. In the event of an almost certain appeal, any thoughts as to how the U.S. Supreme Court could find fault in this and over turn it?
” We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian 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.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.”
This could possibly lead to invalidating AWA and IML. I’m certain it’s red meat in Janice’s lawsuit!
This is good news: it shows that incremental restrictions has a limit; that one can’t go willy-nilly, tightening the screws on registrants. But this doesn’t contradict the Alaska ruling, because the police can still use the SO registry for themselves, and require people to register. As for all the other extra stuff they put in the registry laws, that’s a different story.
A better strategy is to make these laws as bare bones as possible, strip them down to just the requirement to register, rather than attack the main idea and legality of the registry itself, which SCOTUS has already addressed.