No State shall enter into any
Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin
Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender
in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility. U.S. Const., art
1, sec.10, cl.1
a recent opinion, the US Court of Appeals for the 6th Circuit declared recent amendments to Michigan's
Sex Offender Registry Act (SORA) to be ex post facto law, reversing the lower
court opinion and remanding it back to the lower court.
MI SORA statute began in 1994 as a nonpublic registry maintained for law
enforcement. In the view of the 6th Circuit , it has grown into a "Byzantine
Code" governing every aspect of a sex offender's life. Amendments, passed
over time, changed the registry's role in society as follows:
registry became available online and offenders must register in person either
quarterly of annually
registrants from living, working or loitering within 1000 feet of a school
registrants into three tiers based on crime of conviction and they must appear
in person immediately when they buy a car, create a new e-mail or any other
passed in 2006 and 2011 are applied retroactively
to all registrants.
plaintiffs (five John Does and one Mary Doe) are registered sex offenders
challenging the statute on a number of grounds including that the retroactive
application of the 2006 and 2011 amendments amount to ex post facto punishment
prohibited by the Constitution. (US Const, art 1, sec. 10, cl 1).
ex post facto clause was one of the first, Constitutional
question to be addressed by the Supreme Court in 1798, which held that the ex post
facto clause doesn't ban all retroactive lawmaking, only retroactive punishment. It
has become a powerful check on the states when they tried to punish socially
disfavored people without prior notice. Courts have held that "It is the
effect, not the form, of the law that determines whether it is ex post
facto." Weaver v Graham 450 U.S. 24, 31 (1981)
civil and regulatory law such as SORA doesn't violate the Ex Post Facto clause
unless the challenger can clearly and convincingly show that the civil remedy
is really a criminal penalty. A two-prong test was established in a case
challenging Alaska's sex-offender registry law.
the legislature intend to impose punishment?
not, is the statute so punitive in purpose or effect as to negate the state's
intention to deem it civil?
The 6th Circuit first decided that the legislative intent of SORA was not
looking at the effect of SORA, the court concluded the law was punitive
for the following reasons:
resembles the ancient punishment of banishment
because offenders are prohibited from living, working and loitering within 1000
feet of a school;
requirements resemble traditional shaming
punishments. SORA publishes three classifications corresponding to the state's
estimate of dangerousness of the offender’s conviction.
is a form of parole. The reporting
requirements are extensive and bear a number of similarities to parole/probation.
the purpose of the registry is to prevent recidivism, there is scant proof the
it accomplishes its goals. There are many reports finding that offense-based
public registration has no impact on recidivism.
The 6th Circuit held that because SORA 2006 and 2011 impose punishment retroactively and
without notice, it is an Ex Post Facto Law. It is now up to the legislature to
address the problem, which it began to do in December.
In the meantime, this decision has generated a hotbed of post-opinion motions. It is anticipated that the State of Michigan will file a petition for Writ of Certiorari in the United States Supreme Court.
Labels: 6th Circuit, Does v Snyder, ex post facto law, punishment of banishment, registry, reporting requirements, retroactive application, retroactive punishment, Sex Offender Registry Act, SORA