What You Need to Know About Does V. Snyder II
August 06, 2018
I. BASIC FACTS ABOUT THE DOES II LAWSUIT
What is the Does v. Snyder II lawsuit?
Does # 1-6 v. Snyder, No. 16-cv-13137 E.D. Mich.) (Does II) is a class action lawsuit brought on behalf of all people required to register under Michigan’s Sex Offender Registry Act (SORA). Does II seeks to enforce a successful lawsuit challenging SORA that was brought on behalf of six people. The purpose of Does II is to apply that earlier decision to all Michigan registrants.
In August 2016, the Sixth Circuit Court of Appeals held that SORA’s 2006 and 2011 amend-ments – which created exclusion zones limiting where registrants can live and work, retroac-tively lengthened registration periods to life, and imposed many new and in-person reporting requirements – violate the U.S. Constitution’s Ex Post Facto Clause. See Does v. Snyder, 837 F.3d 696 (6th Cir. 2016) (Does I). The district court judge had previously decided in 2015 that the exclusion zones and certain other reporting requirements were unconstitutionally vague or violated the First Amendment, and also held that registrants can’t be prosecuted for inadvertent violations of SORA.
Despite the decisions in Does I, the State of Michigan continues to subject almost 44,000 people to SORA. The Does II lawsuit seeks to enforce the Does I decision for all registrants. But the most important goal is to reform Michigan’s registry so that it is based not on myth and fear about registrants but on modern social science research.
What are the Claims in Does II?
Does II focuses on the legal claims that were successful in Does I. There are four claims.
• The Ex Post Facto Claim asserts that applying today’s registration statute to people whose offenses occurred long ago violates the Constitution. The Sixth Circuit in Does I said that the 2006 and 2011 amendments to SORA cannot be applied retroactively. Therefore, people whose offenses pre-dated the 2006 amendments or the 2011 amendments cannot be forced to comply with parts of the law that were passed later. This claim only applies to people whose offenses occurred before those amendments. Specifically:
o People whose offenses occurred before April 12, 2011, cannot be subjected to the 2011 amendments, which retroactively extended many individuals’ registration terms to life, classified registrants by tiers, and imposed extensive reporting requirements.
o People whose offenses occurred before January 1, 2006, also cannot be subjected to the 2006 amendments, which imposed restrictions on where people can live, work and “loiter,” and which enabled the public to subscribe to updates about registrants on the internet.
• The Due Process Vagueness Claim asserts that SORA’s exclusion zones and some of SORA’s reporting requirements are unconstitutional because it is impossible for registrants to know where the exclusion zones are or what they must report. Under the Constitution’s Due Process Clause, people generally cannot be punished for conduct that they can’t know is illegal. The district court in Does I found that SORA’s exclusion zones, “loitering” provision, and certain reporting requirements were unconstitutionally vague.
• The Due Process Strict Liability Claim asserts that because SORA is a very complicated law and makes many normal activities a crime, registrants can’t be punished for making an innocent mistake about what they are or are not supposed to do under SORA. The district court in Does I said that you cannot be held strictly liable for violating SORA; you have to intend to violate the law to be prosecuted.
• The Free Speech Claim asserts that SORA’s extensive reporting requirements for on-line activity violate the First Amendment. The district court in Does I held that some of SORA’s on-line reporting requirements are unconstitutional.
What is a Class Action Lawsuit?
A class action is a form of lawsuit that permits one or more people (called “plaintiffs”) to represent a larger group (called a “class”) of individuals who all have similar claims. A class action allows the court to decide those claims for everyone at once.
In Does II, there are six individual class representatives who are bringing the case on behalf of all registrants. This is in contrast to Does I, which was brought only on behalf of individual plaintiffs. The class in Does II includes all individuals who are currently or will be subject to registration under Michigan’s SORA. Does II also has an ex post facto subclass which includes people who are or will be on the registry for offenses committed before the 2011 amendments were added to SORA.
In a class action, the court first has to decide whether to “certify” the class. That decision determines whether only the named plaintiffs can bring the case, or whether the decision will apply to everyone in the proposed class. A motion has been filed in Does II seeking to certify a class of all registrants, as well as the ex post facto subclass.
If the class is certified, you do not have to do anything to become part of the class.
What Happens Next?
On June 28, 2018, an amended complaint, which is the basic legal document setting out the claims, was filed challenging SORA on behalf of all Michigan registrants. The attorneys also filed a motion for class certification. A motion is a legal filing that asks the court to do something, in this case to apply its rulings to all registrants in Michigan. On July 12, 2018, the attorneys filed a motion for partial summary judgment seeking a court order barring the retroactive application of the 2006 and 2011 amendments to registrants whose offenses predate those amendments. The attorneys are now filing legal papers about those motions. Hearings on those motions will likely be held in October.
There is no way of knowing with absolute certainty when this case will be resolved. Litigation is a slow process. The Does I case took six years. But the issues in Does II were already decided in Does I, so this case should be much faster. We hope to see significant developments in the case by the end of 2018.
Will This Litigation Affect Individuals Who Do Not Reside in Michigan?
Generally no, unless the other state’s registration requirements are tied to registration in Michi-gan as a result of a Michigan conviction. This lawsuit is a challenge to Michigan’s registry. It does not challenge registries in other states, each of which has its own separate and distinct SORA statute. Some states’ registries make registration requirements dependent on a person’s registration requirements in the state of conviction. Therefore, for some people living in other states who have Michigan convictions, this lawsuit could affect their SORA obligations.
Who Are the Lawyers In the Case?
The case is being litigated by the American Civil Liberties Union of Michigan (ACLU) and the University of Michigan Clinical Law Program (MCLP) – the attorneys who litigated Does I – and the Oliver Law Group, a firm that specializes in class action litigation.
What Should Michigan Do Now?
One option going forward is a “consent judgment” in Does II, where the state agrees to make changes to Michigan’s registry to bring it into compliance with the Constitution. Another option is for the legislature to revise the law.
We think Michigan should use the Does I decisions and the current Does II litigation to take a hard look at SORA. We now know – based on modern social science research – that public crime-based registries are in¬effective and waste taxpayers’ money. Scien¬tific 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 legislators bring together a work group 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 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 uncon-stitutional laws based on myths or fears about sex offenders).
We encourage you to discuss the need for SORA reform with your elected state representatives.
What Should Registrants Do Now?
We recommend that all registrants stay SORA-compliant while we await a ruling in Does II. State criminal courts are not bound by federal appellate decisions (except for U.S. Supreme Court decisions). It is not yet entirely clear how Michigan state courts will apply the appellate and district court decisions in Does I. 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 Does I as a defense in criminal court if (a) SORA is being applied retroactively to them, (b) they are prosecuted under parts of the law that the Does I district court held were unconstitutionally vague or violate the First Amendment, or (c) they are being held strictly liable for SORA violations. If you are charged with a SORA violation you should seek qualified defense counsel or ask for appointed counsel if you cannot afford an attorney. The Does II litigation team cannot advise you in your individual case.
Registrants who are on parole or probation should follow all parole and probation orders related to their sex offender registration.
Registrants who want to support the legislative effort to reform Michigan’s sex offender laws should contact that ACLU at email@example.com. If you are willing to share your story with legislators or the media, please contact the ACLU.
What Does Does II Mean for Individual Lawsuits Challenging SORA?
Does II is designed to address many of the most serious burdens currently placed on registrants. If the class is certified, and if the lawsuit is successful, all registrants will benefit. For example, the Court of Appeals’ decision in Does I held that the 2011 amendments, which extended many registrants’ obligations from 25 years to life, cannot be applied retroactively. If the class action successfully extends the Does I decision to other registrants, most or all registrants whose terms were extended to life will see their registration periods drop back to 25 years.
It is also possible that, in response to the lawsuit, the state will either agree to a consent judgment or pass a new law that significantly changes registration in Michigan. Such a consent judgment or new law would likely affect all registrants. For example, because the research on registries shows that long registration terms are pointless, if this class action case results in comprehensive evidence-based registry reform, we could see significant changes in registration terms. Some people may not be required to register at all and registration terms for many people could become much shorter.
For most registrants, filing your own lawsuit will only cost you money and will not likely get you more relief than what you will get through the class action. If you want to have the Does I decision apply to you, that is what Does II is about. You do not need to bring your own case.
However, Does II does not bring every possible challenge to SORA. It focuses only on the claims that were successful in Does I. You may have other valid legal claims that are not part of this lawsuit. You should speak with an attorney about your options, and whether your claims are likely to be covered by the Does II case. Even if your claims are not part of the Does II case, you may want to wait and see what happens in Does II, because judicial orders or legislative changes as a result of Does II could affect your claims.
If you have already filed a lawsuit challenging SORA, talk to your lawyer about how Does II affects your case.
How Can I Stay Up to Date On the Case Or Get More Information?
This FAQ is designed to answer common questions about the case. Going forward, the ACLU will post important case documents and major updates at:
Because there are almost 44,000 people on Michigan’s registry, the lawyers in this case cannot answer questions for individual registrants. If you have questions about your individual case, you should talk to an attorney.