The 6th Circuit Finally Said The Magic Word: Punitive

Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.”  The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved!

To see this game in action, we need only take a quick stroll down memory lane to Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

See what Judge Melton did there?

No consequence?  It’s likely of a great deal of consequence to anyone who’s required to comply with the SORA requirements, not to mention be held out to the world, and more importantly his neighbors, as a sex offender when he isn’t.

Once again, legal fiction overtakes reality.  By calling sex offender registration regulatory rather than punitive, the court was able to sidestep the issue and pretend that something which is patently punitive is benignly regulatory.  It’s a miracle, like calling a forfeiture civil and thus removing all the rights that go along with criminal sanctions.

The issue wasn’t resolved by looking to elements, legal tests or impact. It was just a word. By the mere incantation of the word “regulatory,” the bundle of rights that accompany the imposition of criminal punishment disappear. Lest one blame Judge Melton for willful blindness, it’s not just him or his court. Not by a long shot.

The Sixth Circuit is the first court to hold otherwise. Finally.

The Sixth Circuit Court of Appeals has ruled in Doe v. Snyder that Michigan may not apply amendments to the State’s Sex Offender Registration Act retroactively on people who were convicted of crimes years or decades ago.

To make the point clear, Andrew Fleischman offers an analogy:

Imagine for a moment that you pleaded guilty to a crime five years ago. Sexual battery. You’ve finished your sentence and are out living your life. It was a regrettable incident that you’re happy to put behind you. Then the State decides you haven’t been punished enough. They pass a new law that requires you to spend an additional 12 minutes in jail in the next week.

Unconstitutional? Obviously.

The law, properly, holds incarceration to be punitive. Whether it’s 12 minutes or 12 years, they can’t create an ex post facto law to impose additional punishment. Because Constitution. And yet:

Now let’s say you were convicted of the same crime five years ago. The State decides that you need to tell everyone you know that you were convicted of that crime. That you can’t live within a thousand feet of a school. That your name and address have to be up on a website, notifying people of your status. That you have to report, regularly, and in person to make sure you are in compliance with all these provisions.

Unconstitutional? The Sixth Circuit Court of Appeals is the first federal circuit court to say so. Every other federal court that has looked at the issue has ruled that registries simply exist to keep the community safe and keep an eye on potentially dangerous predators. Because the law isn’t punitive, governments can impose new requirements retroactively and at will.

Proponents of sex offender registries, who still adhere to the theory upon the creation of sex offender registries, that people have the right to know whether some sick, disgusting pedophile perv is living next door to them who will break into their house in the middle of the night and rape their children, will remind us of the horrible crimes committed against children. The emotional appeal is strong here, as no one wants to see another Etan Patz happen.

But there are a few problems when one gets past the initial appeal to emotion and takes a cursory glance at the details. First, sex offender registries have failed to live up to the theory. They don’t serve to prevent the wrong they exist to stop, largely because the theory was predicated upon a false assumption, that sex offenders couldn’t control their horrific impulses and would offend again. As it turns out, that’s not only untrue, but directly contrary to empirical evidence.

The next problem is mission creep, where the sex offender law was conceived as a means of regulating the people who were so horrible that the threat of their being amongst “good people” was too much to bear. But then new offenses kept being added to the list, like public urination, which had nothing to do with sex offenses. And new restrictions kept being added, making it difficult, if not impossible, for anyone on the list to work, live, be educated, have any future as a law-abiding citizen.

And the public didn’t give a damn, because everybody hates sex offenders so screw ’em. So what if the only place they could live was under a bridge? So what if we created a permanent underclass? What if their families, children were doomed to lives of misery along with the sex offender? We hate them. Who cares?

The Sixth Circuit, apparently, cares. While the holding remains limited to the case, that the court uttered the “p” word is a huge shift. It’s not easy to reach the “p” word when everyone else says it’s the “r” word.

And it is insanely difficult to prove that a law is punitive. Unless a legislature decides to title a law the “Retroactive Punishment of Child Molesters Statute,” the Supreme Court of the United State has held in Smith v. Doe that the plaintiff requires the “clearest proof” that the registry is punitive to prevail.

Up to now, no one has been able to meet that “clearest proof” burden to get the Supremes to concede that the sun rises in the east and sex offender registries are punitive.

There may come a time, soon, when we are willing to call sex offender registries what they are: Severe, life-long punishment.  If it is merited, so be it. But the least we can provide is a little honesty—an acknowledgment that when we add someone to the list, we forever change them from a citizen to something lower, baser, and unprotected from the prevailing winds of public opinion.

Maybe this decision will be the crack needed to get the Supreme Court to finally say what’s obvious to everyone who is familiar with the burdens of being subject to sex offender registry laws.  Maybe.

29 thoughts on “The 6th Circuit Finally Said The Magic Word: Punitive

    1. SHG Post author

      It’s a great decision, but it’s just a start, it’s limited in its scope and application, and whether it changes anything has yet to be seen. So yes, a great decision, but we’re still a million miles away from repairing the nightmares caused by the SORA fix.

  1. Mary Devoy

    It’s a huge deal in the Registry Reform or Abolish movements. Every ACLU in the other 49 States needs to take a similar challenge. The Registries have to crack in the States before the Federal AWA Act can crumble down. Problem is many ACLU’s refuse to step up for Registered Sex Offenders, Virginia is one example. The stigma of defending those heinous ‘Sexual Predators’ is just too much for many who claim to defend the Constitution as well as civil and human rights.

    1. SHG Post author

      Hopefully, the ACLU will fulfill it’s mission with this, provided they don’t find it to be a conflict with their social justice concerns.

  2. B. McLeod

    No matter how much people hate “sex offenders,” putting people who have not committed any offense of a sexual nature on the registries is irrational. It has nothing to do with real ex offenders.

  3. John Barleycorn

    Magic is a tough racket…

    Hard to say wheather or not illusion is a trade or learned.

    Meanwhile it could be a lot worse.

    Cheers for the level, it’s just an ocean.

    Punitive! Everybody has a little bit…

    Ain’t no way to cross without holding the “learned” dear, I guess?

    Puzzle be all that lumber you have stacked and dry.

    Penciled out and lofted some say…

    I say you are looking for a way to brace the board feet in a hundred years douglas fur while looking for and to preserve the perfect timber for the keel.

    Steady on you “lumberjack”!

    Keep lacing up the corks and choking the cut to the landings.

  4. Guy

    Getting it taken up by SCOTUS is a gamble. There’s no guarantee they won’t double down on their Smith v. Doe inanity, given the enormous public support that these electronic stockades garner.

    Still, it is refreshing that intellectual honesty still exists within the judiciary. Just took them a long god damned time.

    1. SHG Post author

      I hold out little hope at SCOTUS. There’s an industry built upon this, and the disruption required to undo the SORA industry would not only be huge, but scare the daylights out of the uninitiated and anti-sex offender crowd. Even if SCOTUS rules honestly, it would be a couple generations before they would completely undo the current regime.

      1. Guy

        You’re probably correct. Dismantling or retooling SORA to reflect their true nature would likely require an expenditure of political capital that the Court simply cannot cover currently.

        Though I do think that’s changing, and perhaps the Snyder decision is a reflection of that. It is, if nothing else, a hopeful sign that perhaps things are beginning to change. Maybe in a few years, the time will be right to take it upstairs.

        1. SHG Post author

          A few years seems overly optimistic. And between now and whenever, some tragedy will happen that will start the cycle over again.

  5. Will A

    Every informed, intelligent person believes the Sex Offender Registries (SORs) are punitive. And every American believes they are unacceptable.

    A very simple fact is that if the SORs were actually useful or American, there are zero excuses to not have a hundred other national, public Registries. We’ve had decades to get them created. Further, people don’t have “a right to know” about people who have committed sex crimes in the past unless we have the same right for any other significant crime.

    There’s been a lot of debate about the effectiveness of the SORs. I think empirical evidence has shown that the SORs are not just nearly worthless, but much worse. I don’t know for sure but I do know that at least with respect to me, they are idiotic social policy.

    Before I was listed on the Registries around 2 decades ago, I was a good U.S. citizen for the most part. I felt like I had a civic duty and I positively contributed to society. I was very pro-law and pro-law enforcement. Then I took a plea bargain for a relatively minor sex crime (minor enough that they prosecutor offered no jail time at all and I had only spent 1 week in jail before bonding out).

    I took the plea bargain with the understanding that I would only be listed on the Registry for 10 years. And when I took the plea bargain, the Registries were nearly nothing and there were no extra harassment/restriction/punishment laws. Of course all of that changed. My Registration period was extended to life and one criminal government after another started committing crimes against me, including attempting to move my family out of the home that we owned. One of the latest crimes that they have committed is attempting to stop my family from international travel.

    So it only took a few years on the Registry for me to declare war on all people who support it. I haven’t stopped and I won’t. If the criminal regimes that have Registries had any sense at all, they would remove me from their Registries immediately. But they don’t.

    I’m not going to waste everyone’s time and go into all the detail of all the actions that I have taken to retaliate against the Registries but they have been extensive and damaging. And I can say today that it is undeniable that there has been nothing in my life even close to the Registries that has made me want to harm people so much. Today, I believe that people who support the Registries are either uninformed and clueless or inherently evil. And people who are evil are not people and they deserve less than animals.

    The Registries relieved me of any obligations to be a good citizen. I take care of my family and friends. I have little concern for other people, until/unless they can prove that they don’t support the Registries.

    1. SHG Post author

      Ordinarily, I would trash your comment, as this is a law blog, for lawyers and judges. I don’t allow personal stories. Yours, however, is particularly interesting, as it reflects your anger toward society from being on the registry. What it shows that matters is that instead of protecting people, it’s producing people like you who will do harm because of the punishment endured by being on the registry. That’s something people should understand.

      Protip: if you want people to hear what you have to say, figure out a way to say it in a much shorter comment. People just don’t like to read long comments.

      1. Will A

        Well, thank you for including it. And I know it is too long and people really just don’t care. I even see that as quite a good bit of the problem – people living in the U.S. are too lazy to take 2 seconds out of their lives to learn about anything. They “think” with their emotions.

        It is outrageous that I am listed on a Registry and lifelong, career criminals who commit crimes every single year are not. A lot of people will say “too bad” and that’s fine. I’ve neutralized the Registries. They will give nothing every day but they will cost plenty.

        One thing the SORs do well is to kill empathy. A lot of people think that doesn’t matter but of course it does.

        1. SHG Post author

          People only care about things that touch their world. You care because it’s killing you. Don’t be too harsh on people who are unempathetic or clueless. Everyone has their own beef. You probably don’t give a damn about theirs.

  6. mike

    the argument for being punitive is quite simple. What is the definition of probation? is there one? probation is considered punitive. Registry laws are just like being on unsupervised probation. HEllo?

    1. SHG Post author

      For simple minds, simple arguments suffice. It never works out that simply, but simple minds can’t grasp why nobody else realizes why everything is as simple as it appeared to them.

      Yes, there is a definition of probation. If you’re going to try to fashion an argument around it, you really need to know it before spewing. No, registry laws are nothing like being on “unsupervised probation.” It’s quite different, and, frankly, worse. And yet this is the first time a court has held the registry punitive. Simple?

      1. mike

        i will spew when i want to spew. So why dont u tell me how it differs, bcuz i have already looked at the definition, and u could easily fit registration laws as unsupervised probation. dont be stupid

        [Ed. Note: I have interpreted this comment to assist an intellectually challenged commenter.]

        I am not a lawyer, but a pathologically stupid and angry individual who confused this law blog for a place where blithering idiots get to say anything the way, and no one would realize that the nonsense they spewed was utterly idiotic because everyone else where was as stupid as I am. I apologize for being an asshole, for being a moron, and for using your blog to make people stupider.

      2. mike

        . So why dont u tell me how it differs, bcuz i have already looked at the definition, and u could easily fit registration laws as unsupervised probation.

        1. SHG Post author

          Gee whiz, I’m glad you asked. Because this is a law blog, where people who don’t have shit for brains discuss law, and not where dumbasses get to demand answers to their idiotic questions. Had you asked nicely, maybe I would have considered wasting my valuable time trying to help you to understand. But since you’re an asshole, you don’t get my time or my bandwidth.

          The irony, dumbass, is that this post is about why sex offender registries are, and should be, deemed punitive. Just not for the simplistic reason you think. You’re done here. Get lost.

          1. SHG Post author

            No worries. I know who is who, and it should be obvious to everyone that you aren’t this belligerent asshole.

            1. Mike

              Shg is Derek Logue. Pissed off fat-ass that couldn’t get a girl even if he wasn’t listed on the registry

  7. Bill

    Maybe the courts are tired of having poorly written laws shoved down their throats; maybe this could be an exercise in training the legislature.

  8. Buck

    I have a son-in-law that is on the registry for life because of a very stupid action done in the late ’90s. He was supposed to be on the registry for only a few years and then the state decided to punish him more shortly before he was scheduled to be off the list.

    Because I am not familiar with how this works, can he motion the court to impose the original sentence based on this decision, which would in fact take him off the list and allow him to stop reporting and live wherever he wants? The article reads “While the holding remains limited to the case,…” makes me believe only those involved in this case will be the recipients of these ex post facto laws in Michigan.

    1. SHG Post author

      Sorry, but we don’t give legal advice here. However, it is unlikely that this case will, in itself, do anything to help your son in law.

  9. Law Prof

    Labeling it punitive means the Ex Post Facto clause applies, which worked for the plaintiffs in the Michigan case since all complained that the fact or the consequences of registration changed after their conviction. BUT it doesn’t do anything at all for folks whose conviction is more recent. They have no ex post facto claim.

    That is why the most important language in the 6th Circuit decision isn’t the language saying it is punitive, it is the language at the end observing that the plaintiffs’ broader arguments against the registry, which apply to the whole enterprise, whatever the label, and whenever the registrant was convicted, are both “interesting” and “far from frivolous”. Since these particular plaintiffs got everything they asked for from the Ex Post Facto ruling, the court didn’t need to decide the broader claims, but they obviously were inviting someone to bring a broader challenge. THAT is really important.

    Being labeled a “civil” measure does not insulate a law from constitutional challenge. Any time you impose serious burdens on people you can potentially trigger scrutiny of the law’s rationale. If you can get a court to that point, a broader challenge to the registry can win, because of course there is no evidence supporting the public safety rationale for applying all the restrictions, including the registry itself and the public website, to most of those on it. That’s how the California Supreme Court last year in Taylor came to strike down the residency restrictions imposed on registered parolees in San Diego County.

    What’s different about the sixth circuit decision is that the challenge was backed up by lots of social science evidence of the unproductive or counterproductive results of the registry system. It was really well-lawyered. The attorneys who handled it deserve our gratitude. Let’s hope their effort creates a template for others to follow.

    1. SHG Post author

      I suspect this is the difference in understanding of the law between lawyers in the trenches and law profs who theorize. Aside from agreement that the lawyers who handled this appeal did a great job, we’ve known the rationale (the social science stuff) for a long time, but it’s the “punitive” holding that gives us the tool to use in the trenches. The former may be interesting to an academic, but the latter is the weapon we need to win the fight.

      And it’s hardly just about ex post facto. It opens up a world of attacks on the registry, as well as sentence, that have been thwarted by courts responding that SORA isn’t punitive. This is dangerously wrong.

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