By Lori Atherton
U-M Law
Six people who filed a lawsuit against the State of Michigan, challenging the constitutionality of its Sex Offender Registration Act (SORA), have been removed from the public sex offender registry after a final order in their case, Does v. Snyder, was issued in January.
The judgment, signed by U.S. District Court Judge Robert Cleland, enforced a unanimous panel ruling by the U.S. Court of Appeals for the Sixth Circuit.
The court held that the 2006 and 2011 amendments to Michigan’s SORA violate the Ex Post Facto Clause of the U.S. Constitution, and therefore cannot be applied retroactively to people convicted before the changes went into effect.
The court said 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…from their own families.”
The decision became final last October when the U.S. Supreme Court denied the state’s petition for certiorari.
As a result, the Michigan legislature will have to rewrite the state law.
“The Sixth Circuit’s opinion is the first federal appellate decision to hold that a second-generation SOR [sex offender registration] statute — modeled on the federal sex offender law — is unconstitutional,” says Clinical Prof. Paul D. Reingold, director of Michigan Law’s General Clinic.
Reingold, together with Miriam Aukerman, senior staff attorney with the ACLU of Michigan, represents the plaintiffs.
“Does is one step in bringing sanity back to SOR statutes — which don’t make communities safer, burden police resources, waste taxpayer money, and create a permanent pariah class,” Reingold said.
The six plaintiffs — five men and one woman — filed Does v. Snyder in 2012.
One of the plaintiffs never was convicted of a sex offense, another never was convicted of a crime, and others were convicted as young adults of having consensual sex with younger teens. One offense dated back to 1980, but the person was added to the registry for life under a new “recapture” provision after taking scrap from a building in 2011.
The 2006 amendments to SORA barred registrants from living, working, or loitering within 1,000 feet of a school.
The 2011 amendments upped the registration term for most registrants from 25 years to life, and added a host of new reporting requirements, many of which —including work addresses — are accessible via a public online database.
The 2011 amendments also required registrants to report in person — sometimes within three days — changes like using a cell phone, renting a car, switching jobs or residences, or updating “Internet identifiers” such as email addresses or user names.
Other amendments required registrants to be categorized into three tiers, based not on any individual assessment of their current “dangerousness” but based solely on the crime of conviction.
All six plaintiffs were listed as Tier III offenders (the most severe category), regardless of whether their crimes were violent, recent, consensual, or even sexual in nature.
“Once you put people on a public registry where anyone can see them, and keep them there for years after their crime, you are ruining their lives and their families’ lives,” Reingold said. “Under SORA they can’t find work, they can’t find housing, they can’t attend parent-teacher conferences or school plays, or pick up their children when they are sick. Many of these people have not had a second offense or charge for years and have led respectable lives but for the one mistake they made back in the day, and which often involved poor judgment.”
Michigan has approximately 43,000 registrants, and adds about 2,000 people to the registry each year, according to Reingold. The state has the fourth-largest sex offender registry in the country.
While the six Does plaintiffs were removed from the public sex offender registry after the final order was issued, Reingold said it’s unclear what will happen to the thousands of other registrants to whom SORA is being applied retroactively and who are awaiting passage of new legislation.
He and the ACLU of Michigan have joined forces with a local private attorney who has filed a class action lawsuit challenging the SORA amendments.
“The purpose of the new case is to apply Does to everyone in the same situation,” Reingold said.
Reingold hopes the legislature will utilize the research of psychologists and social scientists, which he says shows that registrants have one of the lowest recidivism rates of any group of offenders.
“Current social science research shows that modern SOR laws probably increase recidivism, without making communities any safer,” he said.
He points to the empirical work of Michigan Law Prof. J.J. Prescott, who wrote an article cited by the Sixth Circuit. (Professor Sonja Starr also helped draft an amicus brief in support of the plaintiffs on behalf of law professors from across the country.)
“It’s my hope that there will be committee hearings where social scientists and other experts in the field can talk about the low recidivism rates among sex offenders, and push back on the fears and myths that drive these laws,” Reingold said.
The case produced three published opinions by the federal district court in addition to the Sixth Circuit’s published decision. About 20 advanced clinic students worked on the litigation from 2012 to 2018.
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