In August 2016, the federal Sixth Circuit Court of Appeals ruled that Michigan’s Sex Offender Registration Act (SORA) is punishment and that major parts of the law cannot be retroactively applied. The Court, citing research showing that public sex offender registries actually make the public less safe, emphasized the law simply does not work. The district court had previously ruled that other parts of the law were also unconstitutional.
Despite these rulings, this ineffective and unconstitutional law is still being enforced against roughly 44,000 Michigan 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 the earlier case.
On May 23, 2019, the federal District Court for the Eastern District of Michigan issued an order setting a 90-day deadline — or until August 21, 2019 — for state lawmakers to revise the law. The ACLU will now be working with legislators and partner organizations to pass a new law that replaces Michigan’s bloated and ineffective registry with a law that is grounded in evidence-based research and actually works to keep Michigan’s families safe.
Michigan has nearly 44,000 registrants, making it the fourth largest sex offender registry in the country, with the third highest registration rate per capita of any state. There are more people on the registry than live in cities the size of Muskegon, Port Huron, or Mt. Pleasant. Michigan adds about 2,000 people to the registry each year, or about five each day.
What you need to know about Does V. Snyder II
What is the Does v. Snyder II lawsuit?
Does # 1-6 v. Snyder, No. 16-cv-13137 E.D. Mich.) (Does II) is a class action lawsuit brought on behalf of all people required to register under Michigan’s Sex Offender Registry Act (SORA). Does II seeks to enforce a successful lawsuit challenging SORA that was brought on behalf of six people. The purpose of Does II is to apply that earlier decision to all Michigan registrants.
In August 2016, the Sixth Circuit Court of Appeals held that SORA’s 2006 and 2011 amendments – which created exclusion zones limiting where registrants can live and work, retroactively lengthened registration periods to life, and imposed many new and in-person reporting requirements – violate the U.S. Constitution’s Ex Post Facto Clause. See Does v. Snyder, 837 F.3d 696 (6th Cir. 2016) (Does I). The district court judge had previously decided in 2015 that the exclusion zones and certain other reporting requirements were unconstitutionally vague or violated the First Amendment, and also held that registrants can’t be prosecuted for inadvertent violations of SORA.
Despite the decisions in Does I, the State of Michigan continues to subject almost 44,000 people to SORA. The Does II lawsuit seeks to enforce the Does I decision for all registrants. But the most important goal is to reform Michigan’s registry so that it is based not on myth and fear about registrants but on modern social science research.
What has the Court Decided So Far in Does II?
The district court has issued two important orders so far. First, in September 2018, the district Court granted class certification, meaning that any rulings in the case will apply not just to the six individual people who brought the case, but to other registrants whose situation is similar. The Court certified a primary class which includes all Michigan registrants. The Court also certified two “ex post facto” sub-classes who have legal claims (based on the date of their offenses) that the 2006 and 2011 amendments to SORA cannot be enforced against them.
Second, on May 23, 2019, the Court issued a declaratory judgment that SORA is punishment, and that the 2006 and 2011 amendments cannot be retroactively applied. The Court gave the legislature 90 days, or until August 21, 2019, to pass a new law. If the legislature does not fix the constitutional problems with the law, the Court could enter an injunction barring enforcement of parts or all of SORA against many registrants until the legislature does act.
What Happens Next?
Michigan law makers should take a hard look at SORA. We now know – based on modern social science research – that public crime-based registries are ineffective and waste taxpayers’ money. Scientific research shows that most registrants will never commit another sexual offense, and that today’s super-registration laws may actually increase recidivism rates (or have no effect at all).
In designing a new law, legislators should ask:
- whether a public registry is the best way to promote safety, based on modern research;
- whether the millions of dollars spent on the registry each year are well-spent or are wasted;
- how law enforcement can focus on those people who need more services, rather than monitoring tens of thousands of people who do not need supervision;
- how to develop a process to ensure that only higher need people are supervised, and how to ensure that they get the services they need to successfully reintegrate into the community;
- how to apply current research to fashion smart laws based on science (as opposed to unconstitutional laws based on myths or fears about sex offenders); and
- what prevention strategies can be used to stop sexual offending before it occurs.
What Should Registrants Do Now?
Registrants who want to support the legislative effort to reform Michigan’s sex offender laws should contact that ACLU at firstname.lastname@example.org. If you are willing to share your story with legislators or the media, please contact the ACLU. We encourage you to discuss the need for SORA reform with your elected state representatives.
We recommend that all registrants stay SORA-compliant while we work with the legislature to pass a new law. It is not yet entirely clear how Michigan state courts will apply the appellate and district court decisions in Does I and Does II. We strongly recommend full compliance to avoid criminal charges or other consequences.
Individuals who are charged with criminal SORA violations (e.g., residing in an exclusion zone, failure to register) should likely raise Does I as a defense in criminal court if (a) SORA is being applied retroactively to them, (b) they are prosecuted under parts of the law that the Does I district court held were unconstitutionally vague or violate the First Amendment, or (c) they are being held strictly liable for SORA violations. If you are charged with a SORA violation you should seek qualified defense counsel or ask for appointed counsel if you cannot afford an attorney. The Does II litigation team cannot advise you in your individual case.
Registrants who are on parole or probation should follow all parole and probation orders related to their sex offender registration.
What are the Claims in Does II?
Does II focuses on the legal claims that were successful in Does I. There are four claims.
• The Ex Post Facto Claim asserts that applying today’s registration statute to people whose offenses occurred long ago violates the Constitution. The Sixth Circuit in Does I said that the 2006 and 2011 amendments to SORA cannot be applied retroactively. Therefore, people whose offenses pre-dated the 2006 amendments or the 2011 amendments cannot be forced to comply with parts of the law that were passed later. This claim only applies to people whose offenses occurred before those amendments. Specifically:
o People whose offenses occurred before April 12, 2011, cannot be subjected to the 2011 amendments, which retroactively extended many individuals’ registration terms to life, classified registrants by tiers, and imposed extensive reporting requirements.
o People whose offenses occurred before January 1, 2006, also cannot be subjected to the 2006 amendments, which imposed restrictions on where people can live, work and “loiter,” and which enabled the public to subscribe to updates about registrants on the internet.
• The Due Process Vagueness Claim asserts that SORA’s exclusion zones and some of SORA’s reporting requirements are unconstitutional because it is impossible for registrants to know where the exclusion zones are or what they must report. Under the Constitution’s Due Process Clause, people generally cannot be punished for conduct that they can’t know is illegal. The district court in Does I found that SORA’s exclusion zones, “loitering” provision, and certain reporting requirements were unconstitutionally vague.
• The Due Process Strict Liability Claim asserts that because SORA is a very complicated law and makes many normal activities a crime, registrants can’t be punished for making an innocent mistake about what they are or are not supposed to do under SORA. The district court in Does I said that you cannot be held strictly liable for violating SORA; you have to intend to violate the law to be prosecuted.
• The Free Speech Claim asserts that SORA’s extensive reporting requirements for on-line activity violate the First Amendment. The district court in Does I held that some of SORA’s on-line reporting requirements are unconstitutional.
What is a Class Action Lawsuit?
A class action is a form of lawsuit that permits one or more people (called “plaintiffs”) to represent a larger group (called a “class”) of individuals who all have similar claims. A class action allows the court to decide those claims for everyone at once.
In Does II, there are six individual class representatives who are bringing the case on behalf of all registrants. This is in contrast to Does I, which was brought only on behalf of individual plaintiffs. The class in Does II includes all individuals who are currently or will be subject to registration under Michigan’s SORA. Does II also has an ex post facto subclass which includes people who are or will be on the registry for offenses committed before the 2011 amendments were added to SORA.
In a class action, the court first has to decide whether to “certify” the class. That decision determines whether only the named plaintiffs can bring the case, or whether the decision will apply to everyone in the proposed class. Does II has been certified as a class action. You do not need to do anything to become part of the class. If you are on Michigan’s registry, you are part of the class, although different parts of the case could affect you differently, depending on the date of your offense and whether you have brought your own lawsuit.
Will This Litigation Affect Individuals Who Do Not Reside in Michigan?
Generally no, unless the other state’s registration requirements are tied to registration in Michigan as a result of a Michigan conviction. This lawsuit is a challenge to Michigan’s registry. It does not challenge registries in other states, each of which has its own separate and distinct SORA statute. Some states’ registries make registration requirements dependent on a person’s registration requirements in the state of conviction. Therefore, for some people living in other states who have Michigan convictions, this lawsuit could affect their SORA obligations.
What Does Does II Mean for Individual Lawsuits Challenging SORA?
Does II is designed to address many of the most serious burdens currently placed on registrants. If the legislature passes a new better law, or if the lawsuit is successful, most or all registrants will benefit. For example, because the research on registries shows that long registration terms are pointless, we hope that any comprehensive evidence-based registry reform will result in significant changes in registration terms. Some people may not be required to register at all and registration terms for many people could become much shorter.
For most registrants, filing your own lawsuit will only cost you money and will not likely get you more relief than what you will get through the class action. If you want to have the Does I decision apply to you, that is what Does II is about. You do not need to bring your own case.
However, Does II does not bring every possible challenge to SORA. It focuses only on the claims that were successful in Does I. You may have other valid legal claims that are not part of this lawsuit. You should speak with an attorney about your options, and whether your claims are likely to be covered by the Does II case. Even if your claims are not part of the Does II case, you may want to wait and see what happens, especially since if the legislature passes a new law, it could resolve the issues you face or significantly affect your claims.
If you have already filed a lawsuit challenging SORA, talk to your lawyer about how Does II affects your case. The district court has deferred a decision on whether certain people
Who Are the Lawyers In the Case?
The case is being litigated by the American Civil Liberties Union of Michigan (ACLU) and the University of Michigan Clinical Law Program (MCLP) – the attorneys who litigated Does I – and the Oliver Law Group, a firm that specializes in class action litigation.
How Can I Stay Up to Date on the Case and Legislation, or Get More Information?
This webpage is designed to answer common questions about the case. Going forward, the ACLU will post important case documents and major updates on our site.
Because there are almost 44,000 people on Michigan’s registry, the lawyers in this case cannot answer questions for individual registrants. If you have questions about your individual case, you should talk to an attorney.
OVERVIEW OF SORA AND THE DOES I AND DOES II LAWSUITS
In 2006 and 2011, the state legislature expanded the Sex Offender Registration Act (SORA), originally passed in 1994, creating harsher measures for registrants. The amendments retroactively made most registrants register for life and imposed geographic exclusion zones barring them from living, working, or spending time with their children in large areas of every city and town. Additionally, the legislature added extensive and onerous new in-person reporting requirements that make it a crime for registrants to borrow a car, travel for a week, or get a new email account without immediately notifying the police. The changes were imposed without due process or a mechanism for review or appeal for the vast majority of registrants.
The ACLU of Michigan and the University of Michigan Clinical Law Program brought the Does v. Snyder (Does I) case in 2012. In 2016, the Sixth Circuit Court of Appeals declared that portions of the law are unconstitutional and held that restrictions added to the law cannot be applied to people convicted before the changes went into effect. Noting the lack of evidence that registries actually do anything to protect the public, the Court held that Michigan cannot cast people out as “moral lepers” solely on the basis of a past offense without any determination that they actually present a risk to the community. The state appealed that ruling to the U.S. Supreme Court, which denied review.
The Does I case was filed for six individual people. The State of Michigan did not follow the Sixth Circuit’s or district court’s rulings in Does I for the 44,000 other Michigan registrants. So in 2018, the ACLU, the Michigan Clinical Law Program and the Oliver Law Group brought a new class action law suit, Does II, to ensure that the Does I decision is applied to all Michigan registrants. On May 23, 2019, the District Court for the Eastern District of Michigan gave the legislature 90 days to pass a new law. If the legislature does not act, the court could issue an injunction barring enforcement of parts or all of SORA.