Retroactive Application of Sex Offender Registration Law

August 25, 2016

In a groundbreaking ruling, the Sixth Circuit Court of Appeals ruled that the severe restrictions imposed by the Michigan legislature on former sex offenders long after they were convicted violated the Constitution.  

In 2006 and 2011 the Michigan legislature amended Michigan’s sex offender registration law by barring current and future registrants from living and working in a large portion of the state, restricting use of the internet, forbidding attendance of church if children were present, requiring compliance with onerous reporting requirements, and extending the amount of time they remained on the registry.  

The ACLU of Michigan, working with the University of Michigan’s clinical law program, challenged the law in federal court on behalf of six registrants—including a man who was never convicted of a sex offense and several men convicted of consensual sex with younger teens, one of whom he has since married.  

In 2015 Judge Robert Cleland ruled that the law’s geographic ill-defined exclusion zones, “loitering” prohibition and several reporting requirements could not be enforced because they are unconstitutionally vague.  

In August 2016 the Sixth Circuit went further, ruling that that the retroactive application of all of the amendments to those convicted before 2006 violates the U.S. Constitution’s rule against ex post facto laws.  Judge Alice Batchelder, writing for a unanimous court, held that “a regulatory regime that severely restricts where people can live, work, and ‘loiter,’ that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe,” is a form of punishment that cannot be retroactively imposed.  

(Doe v. Snyder; ACLU Attorneys Miriam Aukerman, Dan Korobkin and Michael J. Steinberg, and Legal Fellows Sofia Nelson and Marc Allen; U-M Clinical Law Professor Paul Reingold; Cooperating Attorney William Swor.)