Sex Offender Registration After Does v. Snyder

I. Introduction

The Sixth Circuit’s recent decision in Does v. Snyder, __ F.3d __, 2016 WL 4473231 (6th Cir. 2016), has significant implications for the representation of current registrants who are charged with violating Michigan’s Sex Offender Registration Act (SORA), current registrants seeking removal from the sex offender registry or exemptions from certain SORA provisions, defendants currently charged with sex offenses, and defendants in “recapture” cases. While every case is obviously unique, this memo seeks to provide some general guidance to Michigan’s criminal defense bar in the wake of the Does decision.

One of the reasons that Does v. Snyder has been successful is that it was brought as affirmative civil litigation, and therefore provided the opportunity to develop a very extensive record that was critical in convincing the Court of Appeals that registration is punishment. Criminal cases rarely allow for the development of a similarly extensive record, and therefore are generally less promising as a vehicle for transforming the law in this area. If you are considering major litigation in this area, we would love to talk to you to coordinate strategy.

II. The Sixth Circuit U.S. Court of Appeals Decision

What Did the Court of Appeals Say about Michigan’s Sex Offender Registry?

“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 something altogether different from and more troubling than Alaska’s first-generation registry law [that was upheld by the U.S. Supreme Court in 2003]. 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....

We conclude that Michigan’s SORA imposes punishment.... 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.” [Does v. Snyder, 2016 WL 4473231, at *7].

What Exactly Did the Court of Appeals Decide?

In a unanimous opinion, the Court of Appeals decided that retroactively imposing punishment without individual risk assessment or due process violates the Constitution. The court noted that the 2006 and 2011 SORA amendments added geographic exclusion zones, imposed strict new reporting requirements, and extended registration up to life for the vast majority of registrants, without providing any review or appeal (with rare exceptions). The court found SORA to be more like criminal probation or parole than like a civil regulation.

The court said a registry that does not include individual risk assessment cannot meet the state’s professed goals of public safety. The court found clear evidence that the registry does not effec­tively contri­bute to public safety: “…offense-based public registration has, at best, no impact on recidivism ...” and laws like SORA “actually increase the risk of recidivism,” probably because they make it “hard for registrants to get and keep a job, find housing, and reintegrate into their com­munities.” The Court found that “[t]he requirement that registrants make frequent, in-person appearances before law enforcement … appears to have no relationship to public safety at all.”

To Whom Will the Court of Appeals Decision Apply?

It is hard to know the answer to this question, because there is not yet a final judgment in Does v. Snyder. If the state seeks en banc review or petitions for certiorari, and if either the full Sixth Circuit or the U.S. Supreme Court accepts the case, another 8-15 months could pass before a final decision issues.

The case was brought only on behalf of the six named plaintiffs. However, if the Court of Appeals’ decision is not modified during further appeals, the court’s reasoning that the current version of SORA is punishment will apply to everyone whose offense was committed before July 1, 2011. The court’s reasoning that the geographic exclusion zones are punishment will apply to everyone whose offense was committed before January 1, 2006. The relevant date is the date of the offense, not the date of conviction.

The Michigan Supreme Court currently has pending before it People v. Temelkoski, 498 Mich 942 (2015), which, like Does, concerns the question of whether SORA violates the Ex Post Facto Clause. (Temelkoski also has due process claims with respect to the registration of individuals adjudicated under the Holmes Youthful Trainee Act.) It is unclear what will happen if the Michigan Supreme Court reaches a different conclusion than the Sixth Circuit on the Ex Post Facto issue.

Finally, the legislature will likely make changes to SORA to address the constitutional problems in the statute. It is unclear what those changes will be or whom they will affect.

How Does the Court of Appeals Decision Differ from the District Court’s Decisions?

The Sixth Circuit reversed the decision of the U.S. District Court in Detroit and held that SORA cannot be applied retroactively under the Ex Post Facto Clause of the U.S. Constitution.

Because the Sixth Circuit decided that SORA cannot be retroactively applied to the plaintiffs, the Court of Appeals did not have to decide many of the other issues decided by the federal district court, including that:

  • SORA’s geographic exclusion zones – which prohibit registrants from living, working, or loitering within 1,000 feet of school property – are unconstitutionally vague (because neither registrants nor law enforcement officials can know where the zones are);
  • SORA’s prohibition on “loitering” is unconstitutionally vague (because ordinary people cannot tell if or when they are violating the law);
  • SORA’s internet reporting requirements violate the First Amendment right to free speech (because the they are vague and registrants must report such changes in person);
  • Registrants cannot be penalized for SORA violations unless they knowingly break the law, given SORA’s extensive restrictions on ordinary conduct (like opening an email account or renting a car);
  • SORA’s requirement that registrants must report “routine” or “regular” use of cars, phones, and email addresses is unconstitutionally vague (because neither registrants nor law enforce­ment can know when the use becomes criminal). Does v. Snyder, 101 F. Supp. 3d 672 (E.D. Mich. 2015) (Cleland, J.), reversed on other grounds, __ F.3d __ (6th Cir. 2016).

III. Advising Current Registrants On Compliance, Removal From the Registry, Or Exemptions From Certain Registration Requirements.

We recommend that all registrants stay SORA-compliant until there is a final judgment. State criminal courts are not bound by federal appellate decisions (except for U.S. Supreme Court decisions), and is not yet clear how Michigan state courts will apply the Does v. Snyder decision or what the Michigan Supreme Court will decide in People v. Temelkoski. We strongly recommend full compliance to avoid criminal charges or other consequences.

Registrants who are on parole or probation should follow all parole and probation orders related to their sex offender registration.

The Court of Appeals’ decision held that the 2011 amendments to SORA, which extended many registrants’ obligations from 25 years to life, cannot be applied retroactively. Because there is not yet a final judgment, we do not recommend that registrants file motions to shorten their registration periods back to 25 years. If Does v. Snyder is modified or reversed during any further appeals, individuals whose registration is reduced back to its pre-2011 length could end up having their registration go back to life. Furthermore, there are likely to be legislative amendments to SORA. Individuals could spend a lot of money challenging registration obligations without any long-term result if they file now rather than once Does v. Snyder is final.

The one exception to this general principle is for individuals who would already have come off the registry under the pre-2011 version of SORA (e.g. a person who has already been on the registry 25 years, or in some cases for 10 years after release from prison). Counsel may wish to consider filing for immediate removal from the registry since a decision in such a case could become final before the decision in Does v. Snyder becomes final. If possible, counsel should negotiate a stipulated order for removal with the prosecutor in the state criminal case. If such stipulated relief in state court is not possible, counsel should consider filing an affirmative civil action in federal court where the Sixth Circuit’s decision is binding. Such an action should name the Michigan State Police director in her official capacity as a defendant.

Does v. Snyder can also provide immediate relief to registrants whose offenses occurred before January 1, 2006 and who want to work or live within 1,000 feet of a school, or who want to attend their children’s school events. The Sixth Circuit Court of Appeals held the 2006 SORA amendments, which prohibit working, living or “loitering”[1], cannot be applied retroactively. Does v. Snyder provides an affirmative basis to challenge any law enforcement application of the “student safety zones” to pre-2006 registrants. (We have just filed a new case, Roe v. Snyder, 16-cv-13353 (E.D. Mich, Goldsmith, J., filed Sept. 15, 2016), because Royal Oak police required our client, whose offense occurred in 2002, to quit a job that is allegedly within 1,000 feet of a school.) The same reasoning applies for pre-2006 registrants seeking to move into homes or start jobs within 1,000 feet of a school. However, such clients should be advised that if Does v. Snyder is modified or reversed during further appeals, they may need to move or quit their jobs. Pre-2006 registrants should not ignore the exclusion zones, but should instead seek affirmative, written commitments from law enforcement or courts order making clear that they can live or work in the exclusion zones.

Many registrants want to know how Does v. Snyder affects them. FAQs for registrants are posted at Feel free to print and distribute those to clients. Registrants who want to support the legislative effort to reform Michigan’s sex offender laws should contact that ACLU at

IV. Representing Individuals Charged with SORA Violations

While we strongly recommend that registrants fully comply with SORA pending further decisions in Does v. Snyder, there are multiple defenses available where individuals are prosecuted for SORA violations. See the resources sections at the end of this memo for briefing and materials.

Ex Post Facto Defense

Counsel should first look for the date of the underlying (usually sex-based) conviction. If the underlying offense occurred before January 1, 2006 and/or July 1, 2011, counsel should match the charged violation with the effective date of that subsection of SORA. If the underlying offense occurred before the effective date of the statute, counsel should file a motion to dismiss on ex post facto grounds.

Vagueness Defense

Although the Sixth Circuit did not reach the issue, the district court in Does v. Snyder held that numerous aspects of SORA are unconstitutionally vague, including the exclusion zones, the “loitering” provision, and various reporting requirements. The federal district court’s reasoning that certain reporting requirements are unconstitutionally vague has been adopted by the Michigan Court of Appeals in People v. Solloway, __ Mich. App. __ , 2016 WL 3555211 (2016). Counsel should consider filing a motion to dismiss on vagueness grounds when charges involve student safety zone violations or violations of confusing reporting requirements.

Strict Liability Defense

While the Sixth Circuit again did not reach the issue, the district court held that strict liability under SORA is unconstitutional. In other words, individuals must knowingly violate SORA to be criminally liable. This is an underused defense, and could be particularly helpful where individuals are charged with failures to register based on their reasonable belief that after Does v. Snyder they no longer need to register. (Courts have not yet begun to sort out the implications of the case, and registrants should not be expected to divine whether and what portions of SORA continue to apply to them.) Note, however, that the Michigan Court of Appeals has said that the failure to report is a strict liability offense and willfulness is not an element. See People v McFall, 309 Mich. App. 377; 873 NW2d 112 (2015). Depending on the nature of the charged violation, McFall may be distinguishable. (See the additional resources section.)

V. Representing Individuals Charged with New Sex Offenses

The Sixth Circuit’s decision in Does v. Snyder is based on the Ex Post Facto Clause, and therefore is not immediately applicable to individuals charged with sex offenses that occurred after the adoption of the 2011 amendments to SORA (i.e., after July 1, 2011). Nevertheless, there are several things attorneys can do in new cases.

Preserving the Plea Bargain Argument

One of the stronger claims in Does v. Snyder, albeit one that was not reached by the Sixth Circuit, is that changing the terms of registration vitiates the terms of plea bargains agreed to by defendants. Because the legislature has a history of making SORA worse and worse, attorneys should memorialize favorable registration terms (e.g. private registry, shorter registration period) as part of plea agreements. This could provide a basis for subsequent challenges if, for example, the client later becomes subject to public registration or life-time registration.

Highlighting the Harsh Consequences of Registration and the Uselessness of Registries

The language of Does v. Snyder may be helpful in cases where a negotiated plea or hearing could result in non-registration.

Cruel and/or Unusual Punishment

In particularly sympathetic cases, such as those involving juvenile registration, it may be possible to argue that imposition of SORA is not only punishment, but that it is cruel and/or unusual. A trial judge in Ionia County concluded in 2015 that mandatory lifetime registration for a juvenile offender constitutes cruel and/or unusual punishment and violates the state and federal due process clauses. People v Austin Gostnell, Ionia Circuit Court No. 14-K-16041-FH, Opinion and Order Granting Defendant’s Constitutional Challenges to SORA, issued July 17, 2015. (The trial court opinion and order are available through SADO.)

VI. Representing Individuals In “Recapture” Cases

Under SORA, individuals convicted of new non-sex felonies are required to register under SORA if they were previously convicted of a sex offense for which they were not required to register. M.C.L. 28.724(5). Does v. Snyder should be raised in recapture cases to argue that the imposition of SORA (which is punishment for the old sex offense not the new felony) violates the Ex Post Facto Clause.

VII. Additional Resources

Updates on Does v. Snyder will be available at The site also contains a FAQ for registrants. The litigation in Does v. Snyder produced multiple briefs, expert reports, and other materials that could be useful in criminal cases. The following materials are available on SADO’s website:

In addition, below is a brief timeline of SORA’s legislative history. See also, images (from the Does Joint Statement of Facts) that may be useful for defense counsel.


1994 SORA First Enacted:

  • confidential, non-public, law enforcement database;
  • no regular reporting requirements
  • revealing registry information was a crime & a tort (treble damages);
  • 25 year inclusion in database, except repeat offenders;
  • allowed limited public inspection of registry information.

1999 Amendments:

  • created internet-accessible registry;
  • required quarterly or annual in-person registration;
  • required fingerprinting and photographs;   
  • increased penalties for SORA violations;
  • expanded categories of people required to register.

2002 Amendments:

  • added new in-person reporting for higher educational settings. 2004 Amendments:  
  • registrants’ photos posted on the internet;  
  • imposed registry fee, and made it a crime not to pay the fee.

2006 Amendments:

  • criminalized working within 1,000 feet of a school:
  • criminalized living within 1,000 feet of a school;  
  • criminalized “loitering” within 1,000 feet of a school;
  • increased penalties;
  • created public email notification system.

2011 Amendments:

  • created federal SORNA-based 3-tier system;
  • classified registrants retroactively into tiers based solely on offense;
  • tier level now determines length of registration and frequency of reporting;
  • retroactively extended registration period to life for Tier III registrants;
  • offense pre-dating registry now results in registration if convicted of any new felony (“recapture” provision);
  • in-person reporting for vast amount of information (like internet identifiers);
  •  “immediate” reporting for minor changes (like travel plans & email accounts).

2013 Amendments:

  •  imposed annual fee

By:  Miriam Aukerman, ACLU of Michigan, and Paul Reingold, Michigan Clinical Law Program
Counsel in Does v. Snyder

Prepared in October 2016.