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National

The Transformative Potential of Doe v. Snyder

In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law. Full Article

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***with updated link and pdf version. Moderator***

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  1. ML

    Here is a link to a tremendous article regarding the 6th Circuits decision in Doe v Synder.

    http://bclawreview.org/e-supp/2017/constitutional-law-and-the-role-of-scientific-evidence-the-transformative-potential-of-doe-v-snyder/
    A great article as it lays out how this case lays out a framework that the registry itself may and should be attacked.
    Let us all reach into our wallets and file suits in Federal Court, using the logic a strategy presented in Doe v Snyder.

  2. Janice Bellucci

    The note in this issue of the Boston College Law Review is both informative and encouraging! In addition, it includes a reference to an article written by ACSOL board member Ira Ellman and his wife Tara Ellman regarding the U.S. Supreme Court’s use of an opinion in Psychology Today magazine to conclude that the recidivism rate for registrants is “frightening and high”. Further, the article refers to a case filed a few months ago challenging sex offender laws in the State of Idaho. Reading it is worth your time!

    • G4Change

      I pray that SCOTUS doesn’t turn this ruling on its head and further destroy our lives with the pending case from North Carolina. Do you know if SCOTUS uses rulings from lower courts as guidance? I hope this ruling will be brought up during the upcoming oral arguments.

    • New Person

      blink, blink

      wait… the Ellman’s are board members of ACSOL?! I’ve printed out that article they wrote about “frightening and high” b/c it was the only thing positive to have long, long ago. Although, I don’t think it’s long, long ago, but there are some days where it feels like months.

      I wish to thank both of them for all the research work as well as publishing their findings.

      Right now, my emotions are on a rollercoaster ride after reading the link to the article in comment above yours and seeing the Ellman family is part of ACSOL.

      As of right now, anything increasing penalty retroactively in California can be thwarted by pointing towards “Snyder”. Also, I think the article about Snyder denoted something about “lifetime residency restrictions” might be excessive. Now, if this is to be extended and layered with Dr. Hanson’s work of 17 years to be max needed, then California will have to rethink a plenty of things. California can’t even fight back b/c it’s own research group, CASOMB, reflects low recidivism rates of under 1 percent.

  3. jo

    This is a glimmer of hope on the horizon!

  4. Lovecraft

    NC filed a lawsuit challenging the registry and all its amendments a few weeks ago in similar fashion to doe v snyder. The complaint can be downloaded and viewed here:

    http://ncrsol.org/wp-content/uploads/2017/01/1-Complaint.pdf

    • Chris F

      I see this one also debunks the “Frightening and high” myth with reference to Ira Ellman’s data!

      Unfortunately, it looks like both plaintiff’s are eligible to challenge the registry using an “ex-post facto” argument, so the judges could ignore everything else and just rule on that.

      We need a good case with good plaintiffs to challenge all of the other aspects of registration, otherwise, only those with older crimes have a chance of relief.

      I don’t understand why challenges like this don’t go further to outright challenge Smith V Doe and Connecticut Dept of Public Safety 2003 SCOTUS cases and instead go just for the amendments since then. The mere publication of names on the internet should be challenged again since the “80% re-offend” that those 2003 SCOTUS cases depended on are completely false. I guess in reading this current challenge it does do that to some extent, but if the justices choose to simply agree to the “ex-post-facto” part and save the rest for “another day” then it won’t help the rest of us.

      • Lovecraft

        You realize that when something is ruled ex post facto it has to be considered punishment. If it is then considered punishment it will ultimately be void for all of us.

  5. steve

    Excellent read!! There is a hope that this will all come down! Empirical evidence is our friend. I would just like to know will there be a way to sue the shit out of somebody for the hell we have lived for 20-30 or 40 years!!

  6. Chris F

    If anything demonstrates the tide is turning, it is this!

    Well worth the read.

    I am surprised she didn’t mention the current SCOTUS case of Packingham VS North Carolina. That could turn out to be our biggest win in a long time, or a nail in our coffin for years.

  7. American Detained in America

    I’m curious as to the results of this ruling…i.e. does this mean the registry is at least suspended in Michigan?

    • Bobby

      To American detained in America,

      Well I live in Michigan and as far as I can see we still have to check in, I checked in ,in December and the clerk at the cop shop, told me that she was glad things were starting to turn in our favor, but when I check in, in March to make sure I bring my $50 bucks with me, unless I get something in the mail saying differently. Also Ms Aukerman one of the Attorney’s from the ACLU said just keep following the rules until we get a final ruling from the courts. So matter if SCOTUS hears the case or passes it by we here in Michigan have won. I for one wish SCOTUS would hurry up and decided whether they want to hear Doe v Snyder or not. any thoughts on this would be appreciated. Thanks.

  8. Me

    For whatever reason the link does not work. Try this one
    http://bclawreview.org/e-supp/2017/05_hamilton/
    As to the question about the status of the Michigan registry, continue obeying the law. My attorney has stated that the courts do not legislate. They rule on legality. The law stands until the Michigan legislature decides to change the law. The court did say the law is ripe for a challenge

    • JohnDoeUtah

      If a Court strikes down a law as unconstitutional, or part of the law, those portions are wholly unenforceable. The legislature could never change the law in defiance, but they also would never be able to charge you with violating it. For an Order of the Court to have any power, it must mean something – such as a finding of unconstitutionality making the law dead. Your attorney sounds like a Republican mouth-piece who thinks “so-called” Appeals Court’s decisions, written by “so-called” judges doesn’t bind Michigan’s hands. It’s laughable.

      I made sure Utah could not, and would not enforce the internet identifier law, no matter the status of an appeal. All it takes is an Motion for an Order to Show Cause.

      • Me

        Interesting…. So from your point of view, no matter the consequences someone should disobey the law before the state legislature is able to update it? The person would still be jailed for 3-4 days, lose their job, cost them money for an attorney and be used as an example of how horrible those sex offenders are. It might be illegal for them to jail your for an offense that the courts have deemed unconstitutional but the individual police agencies will not be updated on the change in a law until it actually happens. You can be right all the way to your grave. A much calmer, rational and wiser approach is to obey the law until it is struck down. As individuals we have enough problems without creating more out of pure obstinence.

        • JohnDoeUtah

          Excuse me, but the law was struck down – by the Appeals Court – so it is dead – no action by the legislature required. Yes, let them arrest you and charge you; and, then haul them into federal court for civil rights violations and get a large settlement. I seriously doubt that with such a case, that local law enforcement has not seen the unconstitutional findings in the news or in internal e-mails. By continuing to follow the law, the Plaintiff, and others, are essentially agreeing to the status quo and negating the entire purpose of their lawsuit. It’s not obstinence, the stay was denied by the Appeals Court and the Supreme Court. Continuing to enforce an unconstitutional law is a violation of the court’s ruling. These are about your rights as a citizen, and only a fool would continue to be subjugated when they have a court ruling (law) in their favor.

        • 4sensiblepolicies

          However, may be wise to wait to see if SCOTUS picks up the appeal. Some poor schmuck might decide to make the point that the law is unconstitutional, only to have SCOTUS decide to reinstate it completely or in-part. Then that person who decided to make the point would be looking at serious hard time – by a system that will seek blood against those that dare question their regime. I would not encourage out and out disregard for the requirements until it is a certainty that they are going to be unenforceable. Slow and cautious.

        • JohnDoeUtah

          Sadly, it doesn’t work that way. I’ve been there, done that. If, and until, SCOTUS rules, the prior Court order is in full force and effect. No different than someone sitting in jail until their conviction is overturned. This is why Michigan requested a Stay, so that they could ignore the prior order on Appeal – but SCOTUS denied their request, so the 6th Circuit decision is in full force and effect.

          I won in Doe v. Shurtleff, only to have the Court reverse their decision a year later. Because my conduct at the time was covered by a court’s order, my conduct was not prosecutable by the state. Even during the appeal I refused to give up my identifiers, and I was never charged.

  9. ReadyToFight

    Man, my heart goes out to all you in Michigan.
    I wish you all the best.

  10. mike r

    it’s begun….its only taken 20-30 years but I see an unconstitutional overbroad and overlaoded registry in a death spiral….

  11. Chris F

    If registration is now punishment, then doesn’t it clearly violate Double Jeopardy for someone that gets off the registry in the state of conviction, or was never on it, and then gets put back on when they move to another state? This should be especially true for “differed adjudication” where you were never even convicted of anything.

    The Double Jeopardy Clause of the Fifth Amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The United States Supreme Court has construed this language to cover three distinct protections: (1) the right to be free from a second trial following an acquittal for the same crime; (2) the right to be free from a second trial following a conviction for the same offense; and (3) the right not to be punished more than once for the same crime (see e.g. United States v DiFrancesco, 449 U.S. 117, 129 [1980]; see also People v Biggs, 1 NY3d 225, 228-229 [2003]). The third category referred to as the “multiple punishments” doctrine is relevant.

    Some courts have held that a reasonable expectation of finality arises upon completion of the imposed sentence, resulting in the attachment of jeopardy precluding resentencing (see e.g. United States v Silvers, 90 F3d 95, 101 [4th Cir 1996] [“once a defendant fully serves a sentence for a particular crime, the Double Jeopardy Clause’s bar on multiple punishments prevents any attempt to increase thereafter a sentence for that crime”]; United States v Daddino, 5 F3d 262, 265 [7th Cir 1993] [completion of incarceration portion of sentence precluded any increase of it]; United States v Arrellano-Rios, 799 F2d 520, 524-525 [9th Cir 1986]; Oksanen v United States, 362 F2d 74, 80 [8th Cir 1966] [applying the rule to a completed term of probation]; see also Hernandez v Quarterman, 340 Fed Appx 210, 215 [5th Cir 2009]), unless the government’s time to seek correction of the sentence remains pending at the time of release (see United States v Rico, 902 F2d 1065, 1068-1069 [2d Cir 1990], cert denied sub nom. Baron v United States, 498 U.S. 943 [1990]; see also United States v Cook, 890 F2d 672, 675 [4th Cir 1989]).

    • Tired of this

      “Once a defendant fully serves a sentence for a particular crime, the Double Jeopardy Clause’s bar on multiple punishments prevents any attempt to increase thereafter a sentence for that crime”

      This is what bothers me about so-called civil commitment, the legality of which absof-ckinglutely blows my mind. Holding someone past the completion of his sentence, because of a crime that he MIGHT commit in the future (a similar justification of the registry), should be a violation of double jeopardy 15 ways to Sunday. Call it what you will, but if someone is not free to go, that is imprisonment, and we imprison people as punishment for crimes. If civil commitment isn’t punishment, then why is the civilly committed person held in a secure facility- i.e. a prison? And if the registry isn’t punishment, then why aren’t we free to come and go as we please without having to notify any law enforcement entity, under threat of criminal penalties?

      It continues to amaze me how this government skirts the Constitution, making exceptions to supposedly inalienable rights citing a “governmental interest in public safety.” Last I checked, no such exceptions exist, outside of punishment for a crime.

      Having said all that, I do think we are very possibly witnessing the beginning of the end of this absurd thing called the registry.

  12. ReadyToFight

    Mike r,
    I hope yer right brother!

  13. mike r

    man that’s good shittt Chris…You never seem to stop surprising me with the quality of comments you post with case law to back it up…beautiful….The registry is through its just going to take the right person with the ability to articulate and its done in its current form..Helll the way its going anybody that can type or form a coherent sentence will be able to prevail….

    I guess they didn’t want to post my other post criticizing other attorneys so Ill cull my comments so that they are acceptable under this sites rulesss I guess you would say…

    I don’t know if you people see what the Boston Legal depart. has done with this article but this is a boilerplate motion that each and everyone of us should fill in with our information and flood the courts with…They provided a comprehensive legal brief along with all relevant case law and citations to every resource which is needed to argue your case…This article is a slam dunk bullet proof argument pre written in legal form that no reasonable mind could possibly refute…This is incredible…

    • Chris F

      Thanks Mike R!

      It is a lot of copy/paste and re-wording when I get to the legal stuff and citations. I’m not that good!

      It would be nice to have a legal repository of templates to help all of the sex offenders that can’t afford legal services to write court briefs and petitions.

  14. Bobby

    Hi Guys,

    I spoke to Ms Aukerman Friday and sked her where I could find the Brief they filed with SCOTUS, last week. She sent me a PDF of the Brief and I read it. The problem is for some reason it won’t let me copy the link so I can share it with you all. This is what she sent me
    final_ synder v Does Bio.pdf That is how it is written down it will let me copy and paste every thing but it is 47 pages long. I will tried to figure out how to copy the pdf, but if some one else knows how to do it, please do so so everyone can read it thank you.

    • Lake County

      Did she send you a link or the actual pdf file? It sounds like you have the actual pdf file, which would first need to be posted to any web page then you post that link. I think google has Google Docs or Dropbox as a free shared documents site for this purpose. And you wrote the case file name wrong, it’s Snyder v Does not Synder v Does. Maybe that’s why it wont post?

      • Bobby

        Lake County,

        I believe she sent me the actual PDF file for the brief, because it shows up on my pc, but it won’t let me do anything else, so I think you are correct, I could copy and paste all the pages but there are 46 pages. I guess I will share it once it’s on the net, unless some one beats me to it. thanks though.PS I did not write the file name wrong, that is the way she sent it to me. So she wrote it wrong, but it still comes up on my pc.

  15. Tuna

    Here is the document Bobby mentioned. I got it on Scotusblog.com

    http://www.scotusblog.com/wp-content/uploads/2017/02/16-768-BIO.pdf

    • Bobby

      Thanks Tuna, I really appreciate you finding that and posting for others to read. I apparently have the actual PDF from her,and it just would not let me share it. Thanks again though.

    • Steve

      Unless I missed it…I don’t see anything regarding the “frightening and high” garbage.

    • Chris F

      Wow, great read!

      This makes it clear that playing “whack-a-mole” and challenging one law at a time is NOT going to achieve our goals of getting rid of this registry but obviously must still happen to keep the most ridiculous laws off the books. This makes it VERY clear that challenges have to be made against the entire registration SCHEME to be effective, as any individual hardship caused by a law may not be enough to render it punishment.

      The Ex-post facto challenge will do nothing to get rid of this scheme. All that does is make it so the scheme only affects those after its creation. We need challenges to the unconstitutionality of the entire scheme as violating “cruel and unusual punishment”, “Substantive and Procedural Due Process”, “Freedom of religion and Speech”, “Bill of Attainder” and probably a half dozen other identifiable rights. We should also challenge how legislature has violated separation of powers by creating its own scheme of prevention, punishment, and deterrence that is not under the expected control of the judicial branch empowered with those objectives.

      Here is a snippet with the last sentence most enlightening:

      As with any multi-factor test, different courts
      reviewing different statutory schemes on different
      records are likely to reach different conclusions. This
      is unsurprising. In weighing the Mendoza-Martinez
      factors, it matters whether the challenged statute is
      a simple first-generation registry law similar to the
      Alaska statute in Smith, or (as here) is a modern
      super-registration statute that resembles lifelong
      probation, labels some registrants as the most
      dangerous, and severely restricts where registrants
      can live, work, or spend time with their children. It
      also matters whether the plaintiffs (as here) have
      established a record that the challenged statute
      imposes significant disabilities and restraints while
      failing to achieve its putative public safety goals. And
      it matters whether (as here) the plaintiffs challenge
      the statutory scheme as a whole, or, as in many of
      the cases petitioners cite, object only to a narrow set
      of obligations or prohibitions.

  16. Bobby

    So does anyone have any idea how long SCOTUS has before they have to make a decision on Does v Snyder, regarding .whether SCOTUS will take or deny the case. Just curious on how much longer, because if or should I say when we win, it will have a BIG impact on me since my conviction was in 92, before Michigan even had a registry, and the registry went into effect 94 or 95 while I was still on parole until 96 Thanks

  17. Robert

    SCOTUS has not decided if they will review the 6th Circuit decision yet. MI filed the writ of certiorari for a SCOTUS review, ACLU filed (the posted) brief in opposition to such a review and instead suggests MI change its SORNA laws to comply with 6th Circuit’s decision. This ACLU brief does not argue the case, this is a brief filed in opposition to MI’s request (petition) for a writ of certiorari.
    If SCOTUS refuses to hear the case, MI may be required to change its SORNA laws.

  18. Bobby

    I went to check in today, and spoke with the clerk as she was registering me, and I asked her about why we are still doing all this since the stay was denied by Justice Kagan, and she told me that they got something in the mail, and from what she read everything stay’s the same, as normal until SCOTUS, decides on what they are going to do with Snyder, either review or deny it, she also told me that SCOTUS is probably waiting to see what happens with the Temelkoski case in The Michigan Supreme Court first before they decide on what to do with the Snyder case. What was funny is after she finished with me she said see you in June, and I said I hope not I said hopefully all this will be decided by then, she said don’t count on it, before I let I said Chris I believe your forgetting something, and she said what’s that, I said not that I want to throw away money and give this to you, but don’t you need this $50 bucks of mine and she was like oh ya, apparently you remember more then I do, I said no it’s just I have been doing this unconstitutional thing since 1995,and don’t want to screw up now, since this is so close to finally being over for good, at least for me anyway. If she is correct then SCOTUS is waiting to see what happens with the Temelkoski case in the Michigan Supreme Court. Does anyone know when that ruling is suppose to come down.

  19. Bobby

    For those that are interested in either Does v Snyder or Michigan v Temelkoski

    I just got an e-mail back from Ms Aukerman regarding this, I asked her if there was any word yet on when we might hear something on either case, and this is what she wrote back to me.

    She said: We should here something on Does v Snyder sometime in April, but not sure when we will hear something regarding Temelkoski. That is all that she has told me so far in regards to these two cases, I hope this helps anyone who was wondering about these two cases.

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