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No punishment without a law, pt 1

The United States Court of Appeals for The Sixth Circuit, whose jurisdiction includes Michigan released a remarkable opinion that declared amendments to Michigan's Sex Offender Registration Act (SORA). The opinion is remarkable because it found that some amendments to SORA were punitive and not merely administrative.

This distinction is significant because many aspects of SORA's have been severely criticized as being punitive and having a devastating effect on those who, as in this case, often have additional restrictions and demands forced on them retroactively, long after they have completed their original sentence.

In the case of Doe v. Snyder, the court considered the Michigan's enhanced SORA provisions that added residency restrictions and requires offenders to update their registration with information about their "internet identifiers." The state, as is typical, prefaced this legislation with a statement that assets it is purely and administrative and informational, and has no punitive effect.

This is important because of the Ex Post Facto clause of the U.S. Constitution. This clause prohibits legislation that punishes conduct after the fact. Retroactive laws are permissible, but not those that create criminal penalties.

With sex offenses, the registration requirement only applies after the individual has already completed the statutory period of incarceration and has been released. Since the first enactment of these laws, many states have, like Michigan, enacted additional requirements, that have been piled upon the earlier versions of the law.

These new laws frequently carry retroactive provisions, meaning that the new requirements often apply to those whose convictions occurred years or decades before the amendments were enacted.

Next time we will look at the weight of evidence that has developed that shows that the SORA's have been both ineffective at protecting the public and created genuine harm to many individuals who have been subject to their requirements.


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