KEY NEWS & DOCUMENTS:
DOES V. SNYDER I: Frequently Asked Questions
In 2006 and 2011, the Michigan state legislature expanded the Sex Offender Registry Act (SORA) originally passed in 1994, creating harsher measures that imposed geographic exclusion zones barring registrants from living, working or spending time with their children in much of the state; imposing extensive reporting requirements; and automatically extending registration to life without due process and without a mechanism for review or appeal for the vast majority of registrants.
The Sixth Circuit Court of Appeals in ruling on the case—which was brought in 2012 by the ACLU of Michigan and the University of Michigan Clinical Law Program—declared that portions of the law are unconstitutional and held that restrictions added to the law cannot be applied to those convicted before the changes went into effect without first determining if the individual is a danger. The state appealed that ruling to the Supreme Court.
Snyder v. Does FAQ
“A regulatory regime that severely restricts where people can live, work, and ‘loiter,’ that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law [that was upheld by the U.S. Supreme Court in 2003]. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live....
We conclude that Michigan’s SORA imposes punishment.... 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.”
In a unanimous opinion, the Court of Appeals decided that retroactively imposing punishment without individual risk assessment or due process violates the Constitution. The court noted that the 2006 and 2011 SORA amendments added geographic exclusion zones, imposed strict new reporting requirements, and extended registration up to life for the vast majority of registrants, without providing any review or appeal (with rare exceptions). The court found SORA to be more like criminal probation or parole than like a civil regulation.
The court said a registry that does not include individual risk assessment cannot meet the state’s professed goals of public safety. The court found clear evidence that the registry does not effectively contribute to public safety: “…offense-based public registration has, at best, no impact on recidivism ...” and laws like SORA “actually increase the risk of recidivism,” probably because they make it “hard for registrants to get and keep a job, find housing, and reintegrate into their communities.” The Court found that “[t]he requirement that registrants make frequent, in-person appearances before law enforcement … appears to have no relationship to public safety at all.”
The State of Michigan petitioned for certiorari, meaning that it asked the U.S. Supreme Court to review the Court of Appeals’ decision. In March, 2017, the Supreme Court called for the views of the United States Solicitor General on the case. In July the Solicitor General filed a brief recommending that cert not be granted. The case was distributed to the Justices for conference on September 25, 2017.
Although there are a number of different legal claims in the case, because the Court of Appeals decided the case on ex post facto grounds, if the Supreme Court takes the case, the only issue before it will be whether SORA can be applied retroactively to people convicted in the past.
The lawsuit was brought by six Michigan registrants who were retroactively required to register for life. All six plaintiffs are low risk.
- John Doe #1 robbed a fast food restaurant in 1990. Because he threatened and struck the manager’s son, he was convicted of kidnapping. He has never committed a sex offense but he is still required to register for life. After his release from prison, he worked as a vocational services coach for disabled adults. He and his fiancée are raising two children.
- John Doe #2 was a teenager when he had a relationship with a 14-year-old girl in 1996. His case was handled under a youthful diversion program and he does not have a criminal record (even though the registry labels him as a “convicted” sex offender). He served in the active-duty military twice, and was injured in a grenade explosion. He has one daughter.
- John Doe #3 was also a teenager when he had a relationship with a 14-year-old girl in 1998. He is now married to a schoolteacher and has three young sons.
- John Doe #4 had a relationship in 2005 with a woman he met at an over-18 nightclub, but who was actually 15. The couple is now married and has two children. Due to the registry, Doe #4 has been periodically homeless and unable to live with his wife and kids.
- John Doe #5 was convicted in 1980 of criminal sexual conduct for an offense involving sex that he said was consensual but the woman said was not. He never committed another sex offense and was not required to register until more than 30 years later, when he was convicted of stealing scrap metal, which triggered the registration requirement. He has children and grandchildren.
- Mary Doe was convicted in Ohio for a sexual relationship with a 15-year-old boy in 2003. Under Ohio law, she was found to be low-risk and no longer had to register, but she has to register for life in Michigan. She lives with her husband and daughter.
The case was brought only on behalf of the six named plaintiffs. However, if the Supreme Court does not take the case or if it agrees with the Court of Appeals’ reasoning, then the ruling that SORA is punishment will apply to all registrants in Michigan whose offenses were committed before July 1, 2011. The court’s reasoning that the geographic exclusion zones are punishment will apply to everyone whose offense was committed before January 1, 2006. In addition, the legislature will need to make changes to SORA to address the constitutional problems in the statute. Depending on what changes are made, those amendments could affect everyone on Michigan’s registry.
The unanimous Sixth Circuit Court of Appeals opinion was written by Judge Alice Batchelder, who was appointed to the court by President George H.W. Bush. The other two judges on the panel were Judge Gilbert Merritt, a Carter appointee, and Judge Bernice Donald, an Obama appointee. The federal district court judge who decided the case was Robert Cleland, who was appointed by President George Bush.
Regardless of whether the Supreme Court does or does not take the case, it is clear that Michigan’s registry is broken, and that the state needs to address the issue of sexual offending with policies that actually work to protect Michigan families. We now know – based on modern social science research – that public crime-based registries are ineffective and waste taxpayers’ money. These statutes were passed in reaction to exceedingly rare events – child abductions by strangers. But only a handful of the 42,000-plus people on Michigan’s registry committed that sort of crime. Scientific research shows that most registrants will never commit another sexual offense, and that today’s super-registration laws may actually increase recidivism rates (or have no effect at all).
We suggest that the Michigan hold legislative hearings to figure out:
- whether a public registry is the best way to promote safety, based on modern research;
- whether the millions of dollars spent on the registry each year are well-spent or are wasted;
- how law enforcement can focus on those people who pose a real threat to the public rather than monitoring tens of thousands of people who do not pose such a risk;
- how to develop a process for individualized risk assessment to ensure that only people who pose a real risk are monitored; and
- how to apply current research to fashion smart laws based on science (as opposed to unconstitutional laws based on myths or fears about people convicted of sex offenses).
Sixth Circuit decisions are binding in Michigan, Ohio, Tennessee, and Kentucky. To the extent that those states have laws similar to Michigan’s, those states’ SORAs may be unconstitutional as well. The Sixth Circuit decision is not binding outside the four states, though the opinion may influence how courts in other states and federal circuits view sex offender laws.
The Sixth Circuit reversed the decision of the U.S. District Court in Detroit and held that SORA cannot be applied retroactively under the Ex Post Facto Clause of the U.S. Constitution. Because the Sixth Circuit decided that SORA cannot be retroactively applied to the plaintiffs, the Court of Appeals did not have to decide many of the other issues decided by the federal district court, including that:
- SORA’s geographic exclusion zones – which prohibit registrants from living, working, or loitering within 1,000 feet of school property – are unconstitutionally vague (because neither registrants nor law enforcement officials can know where the zones are);
- SORA’s prohibition on “loitering” is unconstitutionally vague (because ordinary people cannot tell if or when they are violating the law);
- SORA’s internet reporting requirements violate the First Amendment right to free speech (because the they are vague and registrants must report such changes in person);
- registrants cannot be penalized for SORA violations unless they knowingly break the law, given SORA’s extensive restrictions on ordinary conduct (like opening an email account or renting a car);
- SORA’s requirement that registrants must report “routine” or “regular” use of cars, phones, and email addresses is unconstitutionally vague (because neither registrants nor law enforcement can know when the use becomes criminal).
The plaintiffs made the following legal claims (among others) in the case:
Applying today’s registration law retroactively – to people whose offenses occurred long ago – violates the Constitution’s Ex Post Facto Clause. This is the issue decided by the Sixth Circuit Court of Appeals, and the issue on which the state of Michigan has sought review by the Supreme Court.
The exclusion zones violate the Constitution’s Due Process Clause because people cannot be punished for crimes without notice that their conduct is illegal, yet it is impossible to know where the exclusion zones are. Other reporting requirements are also impermissibly vague.
SORA severely restricts parents’ ability to be involved in their children’s education and upbringing, in violation of their right to parent. SORA also interferes with the right to work and travel.
Requiring registrants to report their on-line activity violates the First Amendment.
We recommend that all registrants stay SORA-compliant until there is a final judgment. State criminal courts are not bound by federal appellate decisions (except for U.S. Supreme Court decisions), and is not yet clear how Michigan state courts will apply the Does v. Snyder decision. We strongly recommend full compliance to avoid criminal charges or other consequences.
Individuals who are charged with criminal SORA violations (e.g., residing in an exclusion zone, failure to register) can try to raise the defense in criminal court that SORA is unconstitutional if it is being applied retroactively to them. Whether Does v. Snyder provides a defense may depend on factors like the date of the original sex offense and what part of SORA the individual allegedly violated. Individuals charged with SORA violations should seek qualified defense counsel or ask for appointed counsel if they cannot afford an attorney.
The Court of Appeals’ decision held that the 2011 amendments, which extended many registrants’ obligations from 25 years to life, cannot be applied retroactively. Because there is not yet a final judgment, we do not recommend that registrants file motions to shorten their registration periods back to 25 years. Individuals who would have already come off the registry under the pre-2011 version of SORA should consult with an attorney.
Registrants whose offenses occurred before January 1, 2006 and who want to work or live within an exclusion zones (e.g. take a specific job or live with family) should consult with an attorney.
Registrants who are on parole or probation should follow all parole and probation orders related to their sex offender registration.
Individuals who are facing current felony charges for non-sex offenses but who could be added to the registry based on a past sex offenses (“recapture” cases) should consult with an attorney.
Registrants who want to support the legislative effort to reform Michigan’s sex offender laws should contact that ACLU at firstname.lastname@example.org.