DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan’s amendments to its Sex Offender Registration Act (SORA) “imposes punishment” and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in “the view of the United States, the petition for a writ of certiorari should be denied.” Full Article

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One blatant inaccuracy I note in the DOJ document is them saying that “The (appeals) court acknowledged
that recidivism rates of sex offenders are “frightening and high”, when in fact the appeals court indicated the opposite, i.e. empirical studies have cast doubt on this. This is a major, major misstatement in the DOJ document mis-quoting from the CA6 opinion.

OMG can’t they (DOJ) be sued over this! the Michigan laws are very much the same as every where else. The DOJ knows they cant win this and SO laws would come crumbling down!

The DOJ is perpetuating the myth, and subjecting 800,000 and growing citizens to the fringes of society with malice a fore thought!

We just have some messed up people in our government. Our court system is trying to make sense of this mess and the feds are saying stop! They might loose some power over a group. They use the guise of public protection. They refuse to acknowledge the real facts. They need someone under foot to feel powerful. If they loose their ability to abuse RSOs who would be next? There is always a group transformed by a few in government into an enemy. Our Constitution needs to be protected and fought for. The fact it was written predicted the eventuality of government behavior. Everyone needs its’ protection and guidance. Even those small minded low status people causing & perpetuating this mess.

It is so hard not to swear when writing. But just realizing the limited thoughts at hand…

I think we can see who really is behind this at DOJ…the new AG of course. This is their way of sticking up for federal law as is today and possibly making the other Courts of Appeals work before it gets to be heard again at SCOTUS (maybe even after Justice Kennedy has retired and a new SCOTUS Justice is in play which would mean the USG’s playing prevent defense in the meantime until such time).

You can certainly see where SCOTUS would have expected this reaction from the SG. You can also see where, given Packingham and the acknowledgement of misleading data, the misleading data in this SG document would lead SCOTUS to hear it anyway. You cannot back away from that misleading data point now since you just announced it is misleading and continuing to give punishment out after all is said and done with sentencing. Justice Kagan was a SG once and would understand this perspective all too well. I bet the SG document went under some serious revisions post-Packingham decision.

I pray SCOTUS still hears Doe v Snyder to clear the air of any ambiguity.

I can’t help but sense a huge ulterior motive behind this suggestion.

I feel that the DOJ fears the repercussions of a Supreme Court decision that would agree with the previous outcomes. It’s almost that they foresee a real clusterf**k waiting to happen.

So now here we are, with them asking to not hear it so that it can remain localized and contained. This is the shadiest thing I have seen thus far. They truly should rename themselves and drop the “Justice” from their name. They aren’t acting in the name of Justice.

So what does this mean?

This is amazing that the government is so afraid of SCOTUS making a decision in this case that the government is agreeing with the court of appeals by stating that SORA is punitive in Michigan because of the use of the cumulative effect of three statutory features:

1) The school safety zones in which a sex offender is not permitted to live, work, or loiter. 2) The requirement that an offender be categorized into a tier based on his underlying offense without an individualized assessment and that his assigned tier be made public. and 3) The requirement that sex offenders appear in person “to report even minor changes to their information.”

This brief is a wonderful gift for us and should be of great help in rolling back many punitive requirements put upon us. I think we should all be doing the happy dance now. I would prefer this case go to SCOTUS, but this opinion by the feds is still really great on it’s own.

I would look forward to hearing more analysis on this.

The circling of the wagon has begun! Of COURSE they want to protect this corrupt status quo AND the millions of security theater jobs the AWA and Megan’s Law have created over the past 23 years. They can no longer hang their hat on the recidivism and “public safety” argument.

Things are going to get UGLY if SCOTUS is indifferent and dismissive of Snyder.

The SG knows fully well that the Snyder challenge could be the beginning of the end for the registry, also.

So wow.

The threshold is this, ” as long as it starts off as regulatory, then you have to prove beyond a shadow of a doubt it’s punitive.”

That’s the frame of reference for this denial. Because the Alaska SORA didn’t include certain other penalties that Michigan does, then it’s not really above and beyond on what Smith intended. Forget what Justice Kennedy wrote specifically in the opinion. The intent is still regulatory and there is no clear evidence of punitive aims.

The state can pass any law to be retro-active as long as it’s not punitive. Since the intent of the registry in regulatory, then it cannot be punitive.

Recidivism rates, correct ones, do not matter. Only the intent of civil regulation is what matters. “Intent”. Everything else can be glossed over b/c the intent was civil.

I pray the SCOTUS still takes up Snyder and reviews the “extra constraints upon persons who are no longer under custody” as Justice Kennedy implied in the Peckingham briefing. But right now, I’m just demoralized at how the AG worked around how the court of appeals founded the additional penalties as punishment according to the factors found in 2003 Smith decision. I just feel there’s no way registered citizens can ever share the same liberties as a free US citizen. I’m so depressed right now.

I read that the AG used the same statistic that WAPO’s Michelle Lee pointed out as misleading on SO’s re-offending and any other criminal convicted of a sex crime. It’s not an apples to apples comparison. Other criminals do not re-offend into a sex crime. That’s disingenuous statistics.

Also I showed how the that statistic wasn’t based upon the same common denominator to have a direct comparison of sex crimes. I’ll post it again here:

Alito’s rates (different divisor)————————

In words:
I. registrant sex offense after release / registrant convicts released
II. non-registrant sex offense after release / non-registrant convicts released

In numbers:
I. 517 / 9,691 = 0.0533, or 5.3%
II. 3,328 / 262,420 = 0.0126, or 1.3% (rounded up)

::: This is where Alito and the AG state that sex offenders re-offend at 4 times the rate of other convicts. But this is not a re-offense to re-offense rate comparison. It’s a re-offense rate to a different crime comparison :::

Total convict pool comparison (same divisor)——————-

In words:
I. registrant sex offense after release / total convicts released
II. non-registrant sex offense after release / total convicts released

In numbers:
I. 517 / 272,111 = 0.00189, or 0.19% (rounded up)
II. 3,328 / 272,111 = 0.01223, or 1.22%

Total Sex Offense comparison (same divisor)——————-

In words:
I. registrant sex offense after release / total sex offense conviction
II. non-registrant sex offense after release / total sex offense conviction

In numbers:
I. 517 / 3,845 = 0.1344, or 13.4%
II. 3,328 / 3,845 = 0.8655, or 86.6% (rounded up)


Because of the instances I provided above distinctly reveals that the AG is using misleading statistics to paint registrants worse as it lacks contextual volume, also known as qualitative analysis. The AG sides with the most egregious statistic as opposed to the other known statistics. The last comparison shows that of the 3,845 sex crimes, only 13% of that are from registrants.

This is where I hope Michelle Lee or Dr. Ellman start to chime into the AG’s social science information.

Most of you are crybaby fear mongerals acting like the worlds gonna end. Scotus still may pick it up and if they don’t the doj is stating that we win in Michigan. You guys have all been screwed by the registry so long that you always look for the worst in everything. Get over your doubt driven lives and look at the cup as half full. I’m sick you bums casting doubt on everything. A win in in Michigan, which this would be, is ultimately a win for all.

I just hope that the Scotus is reading this and thinking that DoJ has something to hide and may want to open it up to see what it is.

What did you guys expect from an SG? That he agrees fully with the 6th circuit and not with the state of Michigan? Lol. I knew this would happen, I just didn’t think we would get an answer so rapidly from him.
I read somewhere recently (can’t remember where) that the majority of cases where SCOTUS asks the SG to weigh in, they all get accepted and reviewed by SCOTUS – 100%. Snyder will most likely be heard. I just don’t understand the negativity from some of you on here. We have seen the tides change as compared to past 10 years ago or so. Have a little more faith. I like the panel of justices we have on now. I think if SCOTUS is decided in our favor, I’d come down to 6-3. Shocking will be an 8-0 win, but I’ll bet on 6-3. While yes, I’m anxious for this case and even a bit nervous – which is normal. I refuse to be negative. Nothing is forever. At some point whether now or later, something has got to give in our favor.

Wow, I gotta say the USSG really threw MI under the bus to try to save SORNA. That’s what I got out of the CVSG reply. I have long thought that USSG was trapped on this situation; it appears they’re trying to take the long way around on the issue. Instead of saying SCOTUS should decide it all here and now, they’re saying the courts are doing a wonderful job of ruling on the diverse schemes across the country. We all know that’s total BS, and USSG probably does too. The CVSG reply is a stinker, and like someone else pointed out, Kagan will sniff that out pretty fast.

As I previously posted (, I think SCOTUS will vote to hear it and will issue a decision favorable to us in which they “clarify” Kennedy’s words from Packingham. Reminder: it only takes four Justices to grant cert. I see Ginsburg, Breyer, Kennedy, Kagan and Sotomayor as five who will vote to grant cert.

Someone mentioned reading SCOTUS takes 100% of CVSG cases. Not true, from what I can find ( &, but they do take them often. Of further interest is that SCOTUS likes to hear the expertise of the US Gov’t, but doesn’t take too seriously their USSG’s opinion on granting cert. As one expert in patent cases before SCOTUS says, “while what the SG says is important and viewed as important by the Supreme Court, it is by no, the later is by no means a rubber stamp of the former.” (

My money remains on what I posted before: cert granted; decided in our favor and more broadly; probably a 5-4 decision, though maybe 6-3.

I’m just hoping we don’t have any change in the SCOTUS justices we have now. I fear who Trump might pick next. Sometimes it’s better to keep the enemy you know than to take a chance on someone new you don’t know. If most of SORNA is eventually found unconstitutional, I doubt most politicians will be too upset as it will save a ton of money that politicians can use for other social programs that are underfunded and would will likely keep their constituents happier and the politicians can just blame the failure of SORNA on the courts.

The only real problem is that if politicians can’t pick on us to promote their career, who will they pick on next? Maybe they should pick on witches again. I heard they live in Florida. lol

The beautiful thing about the Snyder case is that it was ruled using “empirical evidence” and actual facts and statistics. After the Snyder case, a handful other federal courts both at the district level and the appeals level have ruled other cases in our favor influenced by the 6th court of appeals ruling of Snyder and even citing the 6th court of appeals with Snyder in their ruling of their own cases. I’m from Florida, and we’re currently dealing with a residency restriction issue here. The Northern district court of Florida denied our petition or suit to consider residency restriction a punishment. When we took it the 11th circuit court of appeals which pertains to Florida, they reversed the Northern district’s denial of our petition and sent it right back to them. Why ? Because of the Snyder case. The 11th circuit court of appeals even cited the 6th circuit court of appeals with the Snyder case in their reversal. It was a beautiful thing to read. lol. Now the Northern district court of Florida has ” pressure ” to them. If they go against us again, We will bring it to the 11th circuit court of appeals again and well, they already ruled the first time in our favor – all because of the Snyder case.

Like someone else mentioned here, I like the SCOTUS panel that we have currently. I can say that 5 or 6 of them are in our favor. The key to Snyder that has influenced already other Federal courts below SCOTUS has been the empirical evidence of facts and statistics. I want SCOTUS to take on Snyder and I believe they will. It will be pretty hard to ignore the empirical evidence. But lets say SCOTUS doesn’t take on Snyder, then I won’t be worried either. That means the 6th circuit court of appeals has the biggest influence all across the land and like i just previously mentioned, it has already influenced a handful of the other Federal courts and hopefully many others will follow.

Staying hopeful and positive.


The more I look at it I see that the DOJ agreed that the 6th circuit is exactly right and there is no need for any review(although a ruling from scotus in our favor is ideal) because it’s such a simple case……DOJ is saying(YES ITS PUNISHMENT AND RETROACTIVE AND CHANGED SO SEVERELY OVER THE YEARS THAT IT IS UNCONSTITUTIONAL, MICHIGAN YOU LOSE AND THIS CASE CAN BE USED IN ALL OTHER CASES….

Hello Everyone,

Well I finally got an e-mail back from Ms Aukerman about 20 minutes ago, I don’t know if this will help anyone at all or not but I thought I would pass it on anyways, not sure why she mentioned the Packingham case though,but here is what she wrote back regarding my question last week.

I tried to send you something earlier, but it bounced back.
We will know in October if the Supreme Court takes Does v. Snyder.  The Michigan Supreme Court has ordered additional briefing in Temelkoski, and so it is being rearguard in the fall.  Packingham is a not a Michigan case, so although it is useful it will not directly affect you.

Here is another e-mail I just got from Ms Aukerman,

If  the Supreme Court takes it, it will be about the MI law, but it will have an impact nationwide.  If they don’t take it, it does not mean that people will automatically come off, but it will limit what can be done.  For many people it will limit the length of time to 25 years.  If they take it it will be at least 6 months till a decision.
Miriam Aukerman
Senior Staff Attorney
American Civil Liberties Union of Michigan
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Anyone know of news on civil suit? what else would help make this right?

That sounds good, I’d love to be part of it, thanks for the info!

Nick, I am also from texas. My offense happens in 1992 of rape of a 17 yrs old and I was 18 at the time. I was given 5 yrs sentence and was supposed to be off the registry in 2007, but was extended to life time due to retroactive laws. Can you check to see if I could join the lawsuit? I believe I could be one of the best person to joint the suit based on my case. In the alternative I could contact them if I know who to go to. Thanks!

My big fear about SCOTUS and Snyder is they will issue a GVR (grant certiorari, vacate, remand). I see this as extremely unlikely, but if it happens, we’ll be tossed into turmoil for months. That other Fed Courts are applying Snyder in their decisions may is a “vote” against SCOTUS hearing it. SCOTUS is quite happy when the Fed Courts all come into agreement on something; it’s when there’s a disagreement among them that SCOTUS steps in to settle the dispute. If SCOTUS does refuse to hear Snyder, it plays into our favor anyway–especially given the USSG opinion. I’ve actually had a few thoughts of wonder about why MI is even still plowing ahead. I guess they want to go down swinging to save face in some manner.

AJ, here’s the link to the recent 5th circuit court opinion upholding 1500 ft resident restriction.