Sex offender laws and the 6th Circuit's Ex Post Facto Clause ruling

I wanted to add a few words to co-blogger Jonathan Adler's posting about the recent 6th Circuit decision in Doe v. Snyder, in which the court voided application of the Michigan Sex Offender Registration Act (SORA) on the grounds that it imposes retroactive punishment on previously convicted sex offenders in violation of the constitutional prohibition against Ex Post Facto laws.

The decision is an especially important one, possibly signaling, in Mark Stern's words over on Slate, that "the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are."

Here's the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-'90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a "sex offense"—typically defined, as in the federal statute (42 USC 16911), as "a criminal offense that has an element involving a sexual act or sexual contact with another"**—to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases.

** Definitions of the "sex offenses" that require registration vary state by state. While a number of truly heinous and deplorable crimes—rape, assault, child molestation—are included, so too, as detailed in a survey by Human Rights Watch, are many lesser crimes, such as soliciting or providing adult prostitution services (five states), public urination (13 states), consensual sex between teenagers (29 states) and exposing genitals in public (32 states).

Several of these early SORAs were challenged on ex post facto grounds, on the theory that the registration and public notification schemes imposed additional punishment retroactively, i.e., on individuals whose crimes had been committed, and who had been convicted, before the SORA legislation had taken effect (and, indeed, on individuals who had completed serving whatever period of punishment and probation or parole had been imposed upon them, and who therefore, at least in theory, possessed the same constitutional rights as you or me).

The Supreme Court, however, disagreed. In Smith v. Doe, 538 US 84 (1999), the Court held that the registration and public notification provisions of Alaska's SORA didn't constitute ex post facto imposition of punishment because they were not "punitive," but rather "regulatory": "clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public." The "stigma and adverse community reactions" that could result from registration did not render the Act punitive because "the dissemination of the registration information, which was largely a matter of public record, did not constitute the imposition of any significant affirmative disability or restraint."

Starting around 2006, however, and again in response to federal encouragement, most states began taking, as the Snyder court put it, an "increasingly aggressive tack" in their SORAs, piling on additional "affirmative disabilities or restraints" over and above the registration/public notification requirements (and with substantial criminal penalties attached to their violation).

Michigan's efforts were, again, thoroughly typical; as the court put it, "what began in 1994 as a non-public registry maintained solely for law enforcement use [grew] into a byzantine code governing in minute detail the lives of the state's sex offenders." Amendments to Michigan's SORA in 2006 and 2011, among other things, prohibited registrants from "living, working, or loitering" within 1,000 feet of any school, and required all registrants to provide law enforcement with all of their "Internet identifiers" (usernames, email addresses, and the like).

Many state SORAs go considerably further than Michigan's, prohibiting individuals on the registry from residing or working—and, in some cases, from merely setting foot—in, or within specified distances of, public parks, daycare facilities, libraries, churches, or "areas where minors congregate." Many states prohibit registrants from all Internet access, or from using specific Internet resources (e.g., social networking sites, instant messaging systems, etc.). Registrants in many states are occupationally limited in ways that often seem senseless and random; for instance, Massachusetts forbids sex offenders from being ice cream truck vendors, Delaware doesn't allow felony sex offenders to be plumbers, Alaska forbids felony sex offenders from being hearing aid dealers, Kentucky from employment as a land surveyor, and New Hampshire forbids certain sex offenders from working at "end stage renal disease dialysis centers."

Just how out of hand things are getting is illustrated by the introduction of legislation in New York state (see here and here) that would prohibit previously convicted (and previously punished) sex offenders from playing so-called "augmented-reality" games like Pokemon-Go, and would require the games' creators to cross-reference their virtual landscapes with lists of offenders' homes and remove any "in-game objective" within 100 feet of them.

And I'll go way out on a limb here and predict that if the bills get to the floor of the legislative assembly, they'll pass. Probably unanimously. Because the number of legislators willing to be labeled a friend to sex offenders is small indeed.

Ex post facto challenges to SORA statutes containing these additional prohibitions on sex offender conduct were largely unsuccessful, as lower courts continued to rely, rather unthinkingly in my opinion, on Smith v. Doe, failing to recognize that the new statutory schemes were, quite clearly, becoming more and more punitive and more and more oppressive than the original registration/notification schemes.

The matter was hardly free from doubt or controversy—witness the bizarre spectacle, which I blogged about a few months ago, of the Kansas Supreme Court declaring the Kansas SORA unconstitutional on ex post facto grounds in the morning, and then immediately overruling itself in the afternoon.

Until now. In an opinion authored by Judge Alice Batchelder—who is, incidentally, a George W. Bush appointee widely regarded as one of the leading "conservative" jurists on the federal bench, and not one generally thought to be particularly soft on criminal defendants—the court held that the Michigan statute was punishing registrants, and could not therefore be applied to persons convicted of the underlying sex offence prior to its enactment.

[There were other important constitutional issues raised in the case. Full disclosure: I submitted, jointly with the Center for Democracy and Technology, an amicus brief to the 6th circuit in this case, arguing that the compelled disclosure of "Internet identifiers" violated the First Amendment's protection for anonymous speech, an issue (see below) that the court found it unnecessary to reach in its opinion.]

The court looked at five factors—"non-dispositive guideposts"—to make the determination:

(1) Does the law inflict what has been regarded in our history and traditions as punishment? (2) Does it impose an affirmative disability or restraint? (3) Does it promote the traditional aims of punishment? (4) Does it have a rational connection to a non-punitive purpose? (5) Is it excessive with respect to this purpose?

All five factors weighed in favor of a finding that the Michigan SORA was indeed punitive. The Act imposed serious—even life-changing —disabilities and restraints on those subject to its prohibitions:

"Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point….

"[T]he school zone restrictions [have] kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of "loitering." Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other "internet identifier," wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle)….

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. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Michigan's restrictions, the court correctly pointed out, are "something altogether different from and more troubling than Alaska's first-generation registry law," and did indeed resemble what "our history and traditions" have considered to be punishments, both "traditional shaming punishments," as well as "the punishment of parole/probation."

Under SORA … registrants are subject to numerous restrictions on where they can live and work and, much like parolees, they must report in person, rather than by phone or mail. Failure to comply can be punished by imprisonment, not unlike a revocation of parole. And while the level of individual supervision is less than is typical of parole or probation, the basic mechanism and effects have a great deal in common. In fact, many of the plaintiffs have averred that SORA's requirements are more intrusive and more difficult to comply with than those they faced when on probation

And, most importantly, in connection with what the court regarded as "the most significant factor in our determination," the court found that the Act had no "rational connection to a non-punitive purpose," imposing burdens that were "clearly excessive" compared to its positive effects. The Act's ostensible "non-punitive purpose" was "readily discernable"—"keeping Michigan communities safe"—but there was "scant evidence" ("at best") that the Act's restrictions actually serve the professed purpose:

"[A]ccording to both the Michigan legislature and Smith v. Doe, recidivism rates of sex offenders are "frightening and high"; informing the public of sex offenders' addresses, photos, tier rankings, etc. provides a mechanism to keep tabs on them with a view to preventing some of the most disturbing and destructive criminal activity; and school zones keep sex offenders away from the most vulnerable.

Intuitive as some may find this, the record before us provides scant support for the proposition that SORA in fact accomplishes its professed goals. The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that "[t]he risk of recidivism posed by sex offenders is 'frightening and high.'" One study suggests that sex offenders (a category that includes a great diversity of criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals.

Even more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism. In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities….

[T]he parties point to no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects. Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects…. [emphases added]

And Judge Batchelder's opinion concluded with these rather eloquent words:

"We conclude that Michigan's SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.

Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the Ex Post Facto clause. 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. Such lawmaking has "been, in all ages, [a] favorite and most formidable instrument[] of tyranny." The Federalist No. 84 (Alexander Hamilton). It is, as Justice Chase argued,incompatible with both the words of the Constitution and the underlying first principles of "our free republican governments." Calder, 3 U.S. at 388-89; accord The Federalist No. 44 (James Madison) ("[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation."). The retroactive application of SORA's 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

Because all five of the plaintiffs had been convicted prior to enactment of those SORA amendments, the court's holding disposed of the case in its entirety; while the court acknowledged that plaintiff's arguments on the other constitutional issues were "far from frivolous and involve matters of great public importance," they would have to wait for another day, because "none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta."

"So what happens now?," one might ask. A holding that the requirements may not be imposed retroactively on those whose convictions preceded SORA's enactment would appear to keep the statutory requirements in place as to those whose convictions occurred subsequent to that date.

But I think this decision will have broader effect. The various domains of constitutional law are not always so separate and distinct. While it is certainly true, as a technical matter, that the court's decision does not affect non-retroactive application of the statutory requirements, it does appear to rather clearly point the way to a broader invalidation. Now that the court has held that the requirements imposed indeed constitute punishment, the Ex Post Facto Clause protects only against retroactive imposition of that punishment; but the Due Process and Equal Protection Clauses protect against arbitrary impositions of that punishment on anyone, and the court's subsidiary holding here—that the requirements bear no rational relation to the law's stated purpose, and that the state had no evidence that they do any good at all—may well mean that they contravene those broader protections against arbitrary and oppressive government action.