Mimesis Law
28 March 2017

Sixth Circuit: Michigan’s Sex Offender Registry Is Punitive

August 26, 2016 (Fault Lines) — The Sixth Circuit Court of Appeals has ruled in Doe v. Snyder that Michigan may not apply amendments to the State’s Sex Offender Registration Act retroactively on people who were convicted of crimes years or decades ago.

Imagine for a moment that you pleaded guilty to a crime five years ago. Sexual battery. You’ve finished your sentence and are out living your life. It was a regrettable incident that you’re happy to put behind you. Then the State decides you haven’t been punished enough. They pass a new law that requires you to spend an additional 12 minutes in jail in the next week.

Unconstitutional? Obviously.

Now let’s say you were convicted of the same crime five years ago. The State decides that you need to tell everyone you know that you were convicted of that crime. That you can’t live within a thousand feet of a school. That your name and address have to be up on a website, notifying people of your status. That you have to report, regularly, and in person to make sure you are in compliance with all these provisions.

Unconstitutional? The Sixth Circuit Court of Appeals is the first federal circuit court to say so. Every other federal court that has looked at the issue has ruled that registries simply exist to keep the community safe and keep an eye on potentially dangerous predators. Because the law isn’t punitive, governments can impose new requirements retroactively and at will.

And it is insanely difficult to prove that a law is punitive. Unless a legislature decides to title a law the “Retroactive Punishment of Child Molesters Statute,” the Supreme Court of the United State has held in Smith v. Doe that the plaintiff requires the “clearest proof” that the registry is punitive to prevail.

For the record, showing that the registry “is triggered solely by criminal offenses and the registration requirement is recorded on the judgment; registration is handled by criminal justice agencies like the police; SORA imposes criminal sanctions; and it is codified in Chapter 28 of the Michigan Code, a chapter that deals with police-related laws” is not enough to prove that the statute is criminal.

But somehow, the five men and one woman who sued managed to prove their case. And they did it by providing a persuasive and comprehensive look at the way registration has changed their lives.

Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use… has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders.

The Sixth Circuit starts by pointing out that there is no individual assessment for who gets what restrictions. Every offender in Michigan is sorted into one of three tiers based on the crime of conviction, which can lead to some deeply strange and disproportionate results. What is the point, for instance, of making a guy who robbed a McDonald’s stay a thousand feet away from a school at all times?

More than that, the restrictions are so harsh and damn near total that they start to resemble the traditional punishments of banishment or public shaming. As humiliating as it may have been for Hester Prynne to wear a scarlet letter and be jeered at for three hours in front of her whole town, is there a sex offender in the country who wouldn’t gladly trade their registration requirements for some light humiliation and a little extra bling? Hester Prynne, after all, didn’t have to show up for more jeering every time she bought a new horse or changed her hair color.

The Sixth Circuit goes a little further, pointing out that modern-day treatment of sex offenders aligns with that of a lot of other disfavored and unpopular groups:

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.

This is particularly true when there is, at best, “scant” evidence to suggest sex offender registries work.

In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities.

In other words, sex offender registries don’t work to do the things we say they do. They work way better at the things that line up with punishment: retribution, specific and general deterrence, and incapacitation.

All that this case means is that six Michigan citizens can’t be held to comply with laws that didn’t exist when they were convicted. That the State can’t keep piling on new restrictions just because it plays well politically. But the Sixth Circuit hints that, given the chance, it would strike down the laws as not rationally related to their stated purpose:

As we have explained, this case involves far more than an Ex Post Facto challenge. And as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta.

What the Sixth Circuit has provided is not, technically, a circuit split. No other federal appellate court has had a reason to rule on Michigan’s sex offender registry. But the court’s reasoning is provocative and exciting to see in print. Given the magnitude of the opinion, Michigan is likely to seek cert, and the Supreme Court may well grant it.

There may come a time, soon, when we are willing to call sex offender registries what they are: Severe, life-long punishment.  If it is merited, so be it. But the least we can provide is a little honesty—an acknowledgment that when we add someone to the list, we forever change them from a citizen to something lower, baser, and unprotected from the prevailing winds of public opinion.

2 Comments on this post.

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  • Jay
    26 August 2016 at 10:06 am - Reply

    “There may come a time, soon, when we are willing to call sex offender registries what they are: Severe, life-long punishment. If it is merited, so be it. But the least we can provide is a little honesty—an acknowledgment that when we add someone to the list, we forever change them from a citizen to something lower, baser, and unprotected from the prevailing winds of public opinion.”

    A million times this.

  • The 6th Circuit Finally Said The Magic Word: Punitive | Simple Justice
    27 August 2016 at 9:01 am - Reply

    […] Sixth Circuit is the first court to hold otherwise. […]