Michigan’s Sex Offender Registration Act Challenged in Federal Court
Oct. 22, 2016
Is Michigan’s sex offender registration act [SORA] and its attendant registration requirements unconstitutional? A group of convicted sex offenders are working their consolidated cases through the federal court system in the Eastern District of Michigan to challenge the act.
Does -v- Snyder
The case, Does v. Snyder, decided by the United States Court of Appeals for the Sixth Circuit in August 2016, characterized SORA as, “a byzantine code governing in minute detail the lives of the state’s sex offenders…” Breaking some new ground, the Sixth Circuit panel framed the issue:
That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or un-enroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).
Are these requirements merely an inconvenience, or are they unconstitutional forms of punishment?
Issues Raised in the Case
Does v. Snyder addressed the issue of whether the requirements of SORA are unconstitutional based on a host of challenges including:
whether SORA violates the First Amendment;
whether SORA is vague and overbroad;
whether the act imposes strict liability of parolees; and
whether recent amendments to the act violate the ex post facto clause of the federal constitution.
The federal district court held that SORA was vague in its application due to many factors, including the 1000-foot school safe-zones. Questioning how these zones were determined, the trial judge determined there were no clear markings or boundaries visible to SORA registrants or to law enforcement relative to the zones.
The trial court held that some of SORA’s requirements were unconstitutionally vague and that SORA registrants cannot be held strictly liable for violations of the Act. District Judge Robert Cleland declined to classify the SORA as punishment and ruled that amendments to the Act did not result in ex post facto violations. Both sides filed timely appeals.
The Sixth Circuit decision focused on the issue of ex post facto violations, however, its detailed analysis covered a host of potential constitutional problems contained in the Act. Sixth Circuit Judge Alice Batchelder’s opinion held that the amendments to the SORA constitute a form of punishment. Further, Judge Batchelder stated that retroactive application of the amendments was unconstitutional and must cease.
Although it did not address the other holdings of the lower court, the appeals court identified vagueness, strict liability, and violations of the First Amendment as issues of great public importance. These arguments, however, were rendered moot because the amendments to SORA may no longer be applied to the plaintiff’s in the Does v. Snyder case.
Stay Pending Further Appeal
After the Sixth Circuit decided this case, the court issued a stay to allow Michigan the opportunity to file a petition for a writ of certiorari. Michigan has until December 28, 2016, to file the writ; the Supreme Court may or may not elect to grant the writ.
Given the limited scope of the Sixth Circuit’s ruling, the SCOTUS may wait for another case with broader application to SORA registrants in general; not just those effected by the ex post facto violations of SORA’s amendments. If the SCOTUS grants certiorari and upholds the ex post facto violation finding of the Sixth Circuit, plaintiff’s remaining challenges likely will be decided.
The Effect of This Decision
What does all of this mean? SORA registrants could be relieved of some of the more onerous restrictions of registration including the restrictions on living or working within a school zone. As the Sixth Circuit pointed out, SORA restricts registrants without any type of individual scrutiny to the offense committed.
Changes might bring individual case-by-case assessments and restrict those convicted pedophiles, considered the most heinous of sexual offenses, from living or working in those zones. On the other hand, the so called “Romeo and Juliet” violators would be exempt from this requirement.
Currently, it is too soon to tell if the 2006 and 2011 amendments to the SORA will be stricken by the Courts. Based on the Sixth Circuit’s ruling, additional challenges to the act are not far away.
We Can Help
If you are affected by this evolving law or have questions on what it could mean for your registration requirements, give our office a call to schedule a free consultation. We can advise you of your rights and responsibilities from a defendant’s or a victim’s perspective.