Snyder v. Does FAQ
“A regulatory regime that severely restricts where people can live, work, and ‘loiter,’ that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law [that was upheld by the U.S. Supreme Court in 2003]. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live....
We conclude that Michigan’s SORA imposes punishment.... 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.”
What exactly did the Court of Appeals decide?
In a unanimous opinion, the Court of Appeals decided that retroactively imposing punishment without individual risk assessment or due process violates the Constitution. The court noted that the 2006 and 2011 SORA amendments added geographic exclusion zones, imposed strict new reporting requirements, and extended registration up to life for the vast majority of registrants, without providing any review or appeal (with rare exceptions). The court found SORA to be more like criminal probation or parole than like a civil regulation.
The court said a registry that does not include individual risk assessment cannot meet the state’s professed goals of public safety. The court found clear evidence that the registry does not effectively contribute to public safety: “…offense-based public registration has, at best, no impact on recidivism...” and laws like SORA “actually increase the risk of recidivism,” probably because they make it “hard for registrants to get and keep a job, find housing, and reintegrate into their communities.” The Court found that “[t]he requirement that registrants make frequent, in-person appearances before law enforcement … appears to have no relationship to public safety at all.”
The State of Michigan petitioned for certiorari, meaning that it asked the U.S. Supreme Court to review the Court of Appeals’ decision. In March 2017, the Supreme Court called for the views of the United States Solicitor General on the case. In July, the Solicitor General filed a brief recommending that certiorari not be granted. The Supreme Court denied certiorari, meaning it declined to review the case, in October 2017.
The lawsuit was brought by six Michigan registrants who were retroactively required to register for life. All six plaintiffs are low risk.
- John Doe #1 robbed a fast food restaurant in 1990. Because he threatened and struck the manager’s son, he was convicted of kidnapping. He has never committed a sex offense but he is still required to register for life. After his release from prison, he worked as a vocational services coach for disabled adults. He and his fiancée are raising two children.
- John Doe #2 was a teenager when he had a relationship with a 14-year-old girl in 1996. His case was handled under a youthful diversion program and he does not have a criminal record (even though the registry labels him as a “convicted” sex offender). He served in the active-duty military twice, and was injured in a grenade explosion. He has one daughter.
- John Doe #3 was also a teenager when he had a relationship with a 14-year-old girl in 1998. He is now married to a schoolteacher and has three young sons.
- John Doe #4 had a relationship in 2005 with a woman he met at an over-18 nightclub, but who was actually 15. The couple is now married and has two children. Due to the registry, Doe #4 has been periodically homeless and unable to live with his wife and kids.
- John Doe #5 was convicted in 1980 of criminal sexual conduct for an offense involving sex that he said was consensual but the woman said was not. He never committed another sex offense and was not required to register until more than 30 years later, when he was convicted of stealing scrap metal, which triggered the registration requirement. He has children and grandchildren.
- Mary Doe was convicted in Ohio for a sexual relationship with a 15-year-old boy in 2003. Under Ohio law, she was found to be low-risk and no longer had to register, but she has to register for life in Michigan. She lives with her husband and daughter.
The case was brought only on behalf of the six named plaintiffs. However, the Court of Appeals’ reasoning applies to all registrants in Michigan whose offenses were committed before July 1, 2011. In a follow-up lawsuit, Does II , the district court applied the decision in Does I to all Michigan registrants. However, because the Does I and Does II lawsuits were brought against the version of SORA in effect before March 24, 2011, they do not directly apply to new SORA.
The unanimous Sixth Circuit Court of Appeals opinion was written by Judge Alice Batchelder, who was appointed to the court by President George H.W. Bush. The other two judges on the panel were Judge Gilbert Merritt, a Carter appointee, and Judge Bernice Donald, an Obama appointee. The federal district court judge who decided the case was Robert Cleland, who was appointed by President George Bush.
Sixth Circuit decisions are binding in Michigan, Ohio, Tennessee, and Kentucky. To the extent that those states have laws similar to Michigan’s, those states’ SORAs may be unconstitutional as well. The Sixth Circuit decision is not binding outside the four states, though the opinion may influence how courts in other states and federal circuits view registration laws.
The Sixth Circuit reversed the decision of the U.S. District Court in Detroit and held that SORA cannot be applied retroactively under the Ex Post Facto Clause of the U.S. Constitution. Because the Sixth Circuit decided that SORA cannot be retroactively applied to the plaintiffs, the Court of Appeals did not have to decide many of the other issues decided by the federal district court, including that:
- SORA’s geographic exclusion zones – which prohibit registrants from living, working, or loitering within 1,000 feet of school property – are unconstitutionally vague (because neither registrants nor law enforcement officials can know where the zones are);
- SORA’s prohibition on “loitering” is unconstitutionally vague (because ordinary people cannot tell if or when they are violating the law);
- SORA’s internet reporting requirements violate the First Amendment right to free speech (because the they are vague and registrants must report such changes in person); registrants cannot be penalized for SORA violations unless they knowingly break the law, given SORA’s extensive restrictions on ordinary conduct (like opening an email account or renting a car);
- SORA’s requirement that registrants must report “routine” or “regular” use of cars, phones, and email addresses is unconstitutionally vague (because neither registrants nor law enforcement can know when the use becomes criminal).
The plaintiffs made the following legal claims (among others) in the case:
Applying the then-applicable registration law retroactively – to people whose offenses occurred long ago – violates the Constitution’s Ex Post Facto Clause. This is the issue decided by the Sixth Circuit Court of Appeals.
The exclusion zones violate the Constitution’s Due Process Clause because people cannot be punished for crimes without notice that their conduct is illegal, yet it is impossible to know where the exclusion zones are. Other reporting requirements are also impermissibly vague.
SORA severely restricts parents’ ability to be involved in their children’s education and upbringing, in violation of their right to parent. SORA also interferes with the right to work and travel.
Requiring registrants to report their on-line activity violates the First Amendment.
Because the State of Michigan continued to enforce this version of SORA against Michigan’s roughly 44,000 registrants, in June 2018, the ACLU, along with the University of Michigan Clinical Law Program and the Oliver Law Group, brought a class action lawsuit to ensure that all Michigan’s registrants obtain the benefit of the rulings in this case.
More information about that case, Does II, can be found here.