Sex Offender Registration Statute Violates Ex Post Facto – Update for August 29, 2016

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Ten Commandments - yes; Michigan SORA - no.
Ten Commandments – yes; Michigan SORA – no.

The U.S. Court of Appeals for the 6th Circuit last Thursday declared 2006 and 2011 amendments to Michigan’s “byzantine” sex offender registry law (“SORA”) to be ex post facto punishment statutes that cannot be applied to people convicted of sex offenses prior to the amendments’ passage. At the same time, the Court strongly hinted that the parts of SORA may be unconstitutionally vague, violate free speech and impose strict liability in violation of due process.

An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed, aggravate a crime by bringing it into a more severe category than it was in when it was committed, change the punishment prescribed for a crime (by adding new penalties or extending sentences), or alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

Ex post facto laws are forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws).

Michigan’s sex offender registration law, which 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 Court said.

Several unnamed plaintiffs challenged SORA’s validity on the grounds that portions are unconstitutionally vague, that its requirements should not be construed as creating strict liability offenses, that it violates the right to free speech, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel. They also contended that SORA’s retroactive application of 2006 and 2011 amendments amounts to an ex post facto punishment.

porn160829The Court held that SORA was a punishment statute, despite what the State argued. The Court said that “the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the ex post facto clause.  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.”

The Court said the retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease. As for the other claims, the Court noted that “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.”

Doe v. Snyder, Case No. 15-1536 (6th Cir. August 25, 2016)


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