In Does v. Snyder, the United States Court of Appeals for the Sixth Circuit decided that Michigan’s sex offender registry (SORA) cannot be applied retroactively — finding that it is unconstitutional to impose new punishment on people convicted of sex offenses before recent SORA laws were enacted. The challenge to the law was brought by a group of plaintiffs — identified only as five ‘John Does’ and one ‘Mary Doe’ — who are registered ‘Tier III’ sex offenders currently residing in Michigan.
It was undisputed on appeal that SORA’s 2006 and 2011 amendments applied to them retroactively. The 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. The restrictions placed on these individuals, such as where one can live, work and spend time, was incredibly burdensome causing issues with finding housing or employment.
The court stated that “while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. 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.”
“Further, while the statute’s efficacy is at best unclear, its negative effects are plain on the law’s face. SORA puts significant restrictions on where registrants can live, work and loiter, but the parties point to no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects.”
Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects. So, is SORA’s actual effect punitive? Many states confronting similar laws have said yes. And we agree.”