DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional
A Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016), that Michigan’s amendments to its Sex Offender Registration Act (SORA) “imposes punishment” and thus the state violates the US Constitution when applying these SORA provisions retroactively. Michigan appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.
Yesterday, the Acting SG filed a brief with SCOTUS stating that in “the view of the United States, the petition for a writ of certiorari should be denied.” The discussion section of the brief begins this way:
Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States. After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes. While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith. Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive. And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features. Accordingly, to the extent the courts of appeals have reached different outcomes in state sex offender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework. Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review. That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision. And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law. Further review is therefore not warranted.
The full petition can be viewed here:
https://www.justice.gov/sites/default/files/briefs/2017/07/07/16-768_snyder_ac_pet.pdf
Hmmm. Solicitor general said that some aspects of registration was indeed punitive including the school zone proximity restrictions and/or restrictions of where you can live(residence) as well as where you can work.
The SG opinion seemed rush and just thrown all together with a bit of sloppiness because some things just didn’t make sense. Like the part where he says federal courts are already doing a great job handling
the sex laws issues. Lol Are they now ? Because they seemed to be split about it, and now thanks to the Snyder case, even more so. Almost as if they just wanted to get it off of their table already so they can address more important matters they have. That’s what I got from reading it. I’ll try to re-read it again another time.
I believe SCOTUS will grant cert to review Snyder. I think it will come down to a 6-3 decision in our favor too. If they don’t take on the Snyder case, that’s fine as well. The 6th circuit decision on Snyder has already gained influence in other courts.
Among a couple other things the SG called punitive. The school zone restrictions of where you can live, work and loiter. No individualized assessment when categorized on the registry as well as having to register in person for minor changes. Of course, they reiterated the whole re offense rate of frightening and high bullshit once again.
If it comes down to SCOTUS, my money is on a 6-3 vote to uphold the 6th circuit’s ruling . Things are looking good so far.
I would prefer that it actually got to SCOTUS because it will become a precedent affecting the entire country more profoundly.
Agreed. Same here. Hope that comes to fruitation.
I read again the SG opinion and they pretty much threw the state of MI under the bus and agreeing with the 6th court of appeals that the State went far and beyond.
Good read.
Buried in the amicus filing, there is a document surveying the different states and their SO registration requirements/restrictions. May be helpful to some of you.
http://www.csom.org/pubs/50%20state%20survey%20adult%20registries.pdf
With the Dept. of Justice and the SG chiming in as to urging SCOTUS not to review, they pretty much know they messed up. Which is pretty much a win – win situation for us here in Florida, ( When they decide to get around to hearing our case. I know all good things take time, but the waiting is agonizing. But not as agonizing as being on the registry).
I dont understand why its so damn difficult to propose a Statutes revision in Florida that simply “tiers” sex offenders into groups based on their Offenses and Sentences. Anybody?
If you tried it, you would understand.
We have been trying to propose legislation every session for years.
Unless you are politically connected or wealthy, nobody carries your bills.
The thing is that it should not be just about the nature of the offense (and I think the length of the sentence is irrelevant) . . . What California is proposing makes more sense. They are giving first time offenders a chance to get off of the registry after 20 years. Lifetime registration should only be for those who re-offend and for those that maim, permanently injure or kill their victim (during their first offense).
I agree that offenders who are guilty of REPEAT felony child molestation, REPEAT kidnapping with intent to commit a sex crime and REPEAT offenses of serious sex crimes should be required to register for life. That makes sense. If they did not alter their behavior after their first offense, they are very unlikely to do so after their second offense and they do not deserve to be free of the registry. However, I think that if the offense involved forcible rape, use of a weapon (even as a means of intimidation), striking, beating or physically harming the victim, a first-time offender should be required to register until they have been free of sex-related or non-sexual violent offenses for a minimum of 20 years and have completed sex offender treatment and therapy designed for violent sex offenders. I also think that if an offense resulted in permanent injury, maiming or death of the victim that the offender should remain on lifetime registration, even if they are a first-time offender.
Also, registration laws should not be retroactively applied. If SCOTUS had based their decision about the Alaska registry on accurate data, they would have realized that sexual offenders are LESS likely to re-offend than any other offender — except for those committing first degree homicide.
If they are going to do that, they need to do all the punishment during sentencing, and say ” this is your punishment, + lifetime (or 10, 20 yrs ) on the registry” and not wait till you are done with prison sentence and/or probation and say “Oh by the way, you have to register for life, (or 10 or 20 yrs. ) “, Not ex post facto.
I definitely agree! It should be part of sentencing and not automatically apply to everyone based on the type of offense or length of sentence.
No.
Nobody should be registering in person or be on a list “post” sentence. This very thing bothers the majority of the SCOTUS justices. Just ask justice Kennedy when he said it was a “troubling fact ” to know that people are being punished even after they finished their sentence. Even with a tried and true individual risk acessment applied correctly, I can bet many people would be off that registry by the thousands. If you’re not dangerous, then why do you have to be on a list with a label that says ” not dangerous” but I’m still here. It’s stupid.
I think that would miss the major point that the registry is punishment and indeed unconstitional.
@FLCitzen
Exactly!
It would take lawmakers who actually used logic, reason, research, and FACTS!
These are 4 things that lawmakers in Florida HATE more than kryptonite!
Literally…those 4 things actually take away their power. Instead of logic, reason, research, and FACTS, they use a private agenda which will enrich them personally.
You think Rick Scott cares about anyone except Rick Scott? He doesn’t.
You think Rick Scott cares about truth? He doesn’t.
He is not interested in doing anything except what will benefit aka enrich himself personally. Sex offenders are simply pawns to him.
Forgive me if I am wrong but I see the DOJ doing this because they DO in fact understand the implication of this case. This one, if heard by SCOTUS, will force a decision that the SO laws as they stand now as opposed to when they heard the first case (that said it was not punishment) are indeed punishment. That would indeed have an effect on the whole country and the DOJ knows that. What are opinions here? Will SCOTUS hear the case or do they usually go with the DOJs recommendation? If that is the case then we are never going to be heard becasue the DOJ will block it at every turn. I understand the chaos would be phenomenal but tough for them! They made this mess – let them clean it up! Also, what happens if SCOTUS will not hear the case?
That’s what I got from it too. The DOJ basically said that the 6th court of appeals got it right. That school zone restrictions where you can or can’t live(residence restrictions) and registering in person among other things they mentioned are indeed punitive and reminiscent of probation/parole. Therefore the issue is resolved here so SCOTUS doesn’t have to review this because the Federal courts are already doing this on their own.
This is great because not only does a high court have your back, but the US government (DOJ) does too as well. The bad news is that SCOTUS may agree with the DOJ and not hear the case because the 6th court did get it right. We will have to work a bit more on this State.
I prefer SCOTUS hear this case and make a nation wide impact sweep. I just think if they don’t, it can further turn into a mess and more split decisions. Some courts may agree with the 6th court of appeals , some may not. Politicians can rebrand the laws into something else and then SCOTUS in the future will have another problem. It may also be another panel of justices in SCOTUS that are unreasonable.
Hopefully SCOTUS right now in their wisdom will be able to see this for what it is and resolve this issue on a nation wide level once and for all.
That part about some courts may disagree with the 6th court of appeal’s Snyder v. Does case is not necessarily true. If SCOTUS doesn’t grant review it means they agree with the Snyder outcome – It has its backing stamped on it. Not to mention the DOJ agreed as well – also stamped on it. That is three federal high powers agreeing in unison – which means that Snyder v. Does will be the most influential case across the land and above all. It will be almost impossible for any other federal court to disagree with it. While I do prefer as well for SCOTUS to review it and go even further with it in our favor, either way it goes, we can do a lot with it in our favor.
Actually, I don’t see this as a win at all unless SCOTUS takes the case and decides in our favor. Reason being on my thought is that the SG does not want this nationwide and this is a stall tactic. Think about this, if the SG thought these laws were unconstitutional then they would come out and inform SCOTUS of that and not blow smoke up where the sun does not shine trying to keep as many of these laws in place like they are doing now.
The registry came into effect because the supreme court said many years ago that the list would not be punitive to those on it. obviously years later they could not be more wrong(see definition below)
The fact that if your on it you cannot get the majority of jobs, you cannot live in the majority of areas and everyone in the world can harass or worse harm you because your on the list and a website showing your face and address is about as punitive as it comes. why has this simple fact not been used to overturn the original decision?
is not being employable or being allowed to live where you like not punishment? if you deny anyone of color or religion a job or place to live because of what color they are or what religion they practice is that not punishing them? is that not punitive?
baseball player playing in the college world series this year from oregon state was supposed to be drafted in the 1st round of the draft meaning millions of dollars to him, but because of something he did when he was 15 that landed him on the RSO list not only made him leave the world series early as soon as espn found out but also caused him to not get drafted at all by any team, is that not punitive? people say well he has his degree from Oregon state to get him a job don’t feel bad for him,, don’t they understand that being on the list masters degree or not he is getting hired no where they do background checks?that the majority of RSO’s if not self employed have menial jobs no matter the degree or experience?
pu·ni·tive
ˈpyo͞onədiv/Submit
adjective
inflicting or intended as punishment.
I too read the full decision, and both briefs and the SGOpinion. The SG opinion in my view was expertly done, classic DOJ lawyeting. Mary, I don’t share the view it was rushed and illogical. It very slyly and d eviously debased and devalued the significance of the 6th Circuit ruling, saying this was just cleanup and Michigan can fix all this by just rewriting its law. Downplaying whilst redirecting to the other courts of review as similar in action. It was damn sneaky. No one, repeat no one, should read that brief as helpful for our cause. Better read it again if you do.