The Sixth Circuit recently issued a landmark decision striking down retroactive application of Michigan’s sex offender registration law.  See Does #1-6 v. Snyder, ___ F.3d ___, 2016 WL 4473231 (6th Cir. Aug 25, 2016).  Six anonymous plaintiffs, five male and one female, all of whom were required to register as Tier III sex offenders filed a comprehensive lawsuit attacking Michigan’s complicated and burdensome registration scheme.  Beginning in 1999, the Michigan legislature made a series of amendments to its registration law, each of which made the law more invasive and onerous.  For example, a series of amendments adopted in 2006 precluded sex offenders from living, working, or spending time within 1,000 feet of a school.  Then in 2011, the legislature extended the law to require in-person registration and disclosure of online activity, log-ins, and passwords.  All of these amendments were made retroactive to sex offenders currently on the registry.

In a sweeping opinion written by Judge Alice Batchelder, the Sixth Circuit determined that the retroactive application of the residency, in-person registration, and internet disclosure provisions violates the ex post facto clause.  Integral to the court’s decision was the determination that these restrictions are not remedial civil penalties, but instead constitute punishment.  This holding departed from previous Supreme Court authority in which less onerous sex offender registration laws were deemed to be merely civil in nature.  See, e.g., Smith v. Doe, 538 U.S. 84 (2003).  In reaching its conclusion, the Court relied upon amicus briefs submitted by a consortium of law professors, as well as NAPD and other criminal defense organizations, which explained how the burdens imposed by Michigan’s amended statute vastly exceeded those in question in prior cases.

All indications are that the State of Michigan will appeal the decision to the Supreme Court. You can read the brief, and see all NAPD Amicus activity HERE