Michigan Sex Offender Rules May Not Be Retroactive

According to the Court of Appeals, Michigan’s SORA laws cannot be retroactively applied.


The 6th U.S. Circuit Court of Appeals has ruled that Michigan’s sex offender registry law cannot be retroactively applied because the new revisions stiffen the penalties for convicted offenders to the point that they could be considered unconstitutional. This ruling will change how the law is applied to thousands of convicted sex offenders in the state of Michigan.


In 2006, Michigan law was amended to restrict sex offenders even more. New laws forbade sex offenders from living, working or simply “loitering” within 1,000 feet of a school. In 2011 the law was changed again, this time to reflect categories of offenses within the registry. The categories, referred to as ‘tiers,’ were intended to reflect the seriousness of the offense.


In 2015, a lawsuit was filed in the U.S. District Court in the Eastern District of Michigan against Governor Rick Snyder and Michigan State Police Director Col. Kriste Etue. The lawsuit, which lists the plaintiffs as “John Does #1-5” and “Mary Doe,” argues that the updated state laws are being unreasonably applied to defendants who were convicted before the laws were changed. This Constitutional violation comes from the ex post facto provisions in our federal constitution. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10.


At the time, U.S. District Court Judge Robert Cleland ruled that the state’s new sex offender laws could be applied retroactively. He did, however, mention that the definition of loitering was so vague that offenders weren’t able to figure out if they could go to their children’s parent-teacher conferences.


But the Federal Appeals Court overturned the lower court’s ruling, on the grounds that imposing harsher restrictions on offenders who were convicted before the law was changed would be unconstitutional. The panel, made up of Judge Alice Batchelder, Judge Gilbert Merritt, and Judge Bernice Donald, wrote that the 2006 and 2011 restrictions treat offenders like “moral lepers.”


Judge Batchelder, who wrote the ruling on behalf of all three Judges, described the state’s geographic restrictions imposed on sex offenders as “very burdensome.” She also wrote that this particular portion of the law “resembles, in some respects at least, the ancient punishment of banishment.”


In their ruling, the three judge panel on the Sixth Circuit United States Court of Appeals ruled that while not punishing someone for a crime is dangerous, “it is far more dangerous to permit the government, under the guise of civil regulation, to punish people without prior notice.” For this reason, the court decided, that Michigan may not retroactively apply it’s newer sex offender laws to formerly convicted individuals.


With 42,700 individuals listed, Michigan has the fourth largest sex offender registry in the nation. Of that number, a total of 39,000 are shown on a searchable database that is available to the public, which includes names, photographs and current addresses.


Judge Batchelder noted that this should ruling be viewed as an opportunity for legislature to pursue finding a “research-based, evidence-based way to protect public safety.” The Michigan State Police and the Governor’s Office are now both reviewing the ruling in order to determine what steps should be taken next.