No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. U.S. Const., art 1, sec.10, cl.1

In a recent opinion, the US Court of Appeals for the 6th Circuit declared recent amendments to Michigan's Sex Offender Registry Act (SORA) to be ex post facto law, reversing the lower court opinion and remanding it back to the lower court.

Facts: MI SORA statute began in 1994 as a nonpublic registry maintained for law enforcement. In the view of the 6th Circuit , it has grown into a "Byzantine Code" governing every aspect of a sex offender's life. Amendments, passed over time, changed the registry's role in society as follows:

• 1999 - the registry became available online and offenders must register in person either quarterly of annually

• 2006 - prohibited registrants from living, working or loitering within 1000 feet of a school

• 2011 - divides registrants into three tiers based on crime of conviction and they must appear in person immediately when they buy a car, create a new e-mail or any other life change.

Amendments passed in 2006 and 2011 are applied retroactively to all registrants.

The plaintiffs (five John Does and one Mary Doe) are registered sex offenders challenging the statute on a number of grounds including that the retroactive application of the 2006 and 2011 amendments amount to ex post facto punishment prohibited by the Constitution. (US Const, art 1, sec. 10, cl 1).

Ex Post Facto analysis:

The ex post facto clause was one of the first, Constitutional question to be addressed by the Supreme Court in 1798, which held that the ex post facto clause doesn't ban all retroactive lawmaking, only retroactive punishment. It has become a powerful check on the states when they tried to punish socially disfavored people without prior notice. Courts have held that "It is the effect, not the form, of the law that determines whether it is ex post facto." Weaver v Graham 450 U.S. 24, 31 (1981).

A civil and regulatory law such as SORA doesn't violate the Ex Post Facto clause unless the challenger can clearly and convincingly show that the civil remedy is really a criminal penalty. A two-prong test was established in a case challenging Alaska's sex-offender registry law.

1. Did the legislature intend to impose punishment?

2. If not, is the statute so punitive in purpose or effect as to negate the state's intention to deem it civil?

The 6th Circuit first decided that the legislative intent of SORA was not punitive.

Then, looking at the effect of SORA, the court concluded the law was punitive for the following reasons:

1. SORA resembles the ancient punishment of banishment because offenders are prohibited from living, working and loitering within 1000 feet of a school;

2. SORA's requirements resemble traditional shaming punishments. SORA publishes three classifications corresponding to the state's estimate of dangerousness of the offender’s conviction.

3. SORA is a form of parole. The reporting requirements are extensive and bear a number of similarities to parole/probation.

While the purpose of the registry is to prevent recidivism, there is scant proof the it accomplishes its goals. There are many reports finding that offense-based public registration has no impact on recidivism.

The 6th Circuit held that because SORA 2006 and 2011 impose punishment retroactively and without notice, it is an Ex Post Facto Law. It is now up to the legislature to address the problem, which it began to do in December.

In the meantime, this decision has generated a hotbed of post-opinion motions. It is anticipated that the State of Michigan will file a petition for Writ of Certiorari in the United States Supreme Court.