Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

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