A gracious reader directed me to a recent article authored by Dr. Melissa Hamilton in the Boston College Law Review entitled Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 8 B.C.L. Rev. E. Supp. 34 (2017). In her article, Dr. Hamilton discusses the United States Court of Appeals for the Sixth Circuit’s August 2016 decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Justia). That decision is pertinent to military justice practitioners for a couple of reasons.

First, the Sixth Circuit held: “[w]e conclude that Michigan’s [Sex Offender Registration Act (SORA)] imposes punishment.” 843 F.3d at 705. This contrasts with CAAF’s 2014 decision in United States v. Talkington, 73 M.J. 212 (CAAFlog case page), where the Court opined that sex offender registration was “a penalty for committing a crime[,]” 73 M.J. at 215, but did not “constitute punishment for purposes of the criminal law[,]” 73 M.J. at 217.

The second reason the Sixth Circuit’s decision in Does #1-5 v. Snyder is important is that it evaluates the rationality (and therefore the constitutionality) of sex offender registration regimes on empirical, rather than assumptive, grounds. Dr. Hamilton elaborates:

In Smith v. Doe (oyez)the United States Supreme Court found that Alaska’s sex offender registry was necessary for public safety because, it asserted, the recidivism rate of sex offenders is “frightening and high.” In Doe v. Snyder, the United States Court of Appeals for the Sixth Circuit was not so convinced that the scientific evidence supported this assertion. Instead, the court determined that empirical research failed to establish that Michigan’s SORA law was rationally related to the purpose of protecting public safety. The court looked to a statistical study indicating that sex offenders are actually less likely to recidivate than other types of criminals. It also referred to other research findings that laws such as SORA might in reality disserve their aims by increasing the risk of recidivism via barriers they present for registrants to successfully reenter society and to secure safe housing and decent jobs.

Constitutional Law and the Role of Scientific Evidence at 38.

Dr. Hamilton explains further that, in contrast to the Sixth Circuit’s empirical handling of the rationality question in Snyder, the Supreme Court’s rational basis analysis in Smith was troubled:

Indeed, there is evidence that the Supreme Court’s decision in Smith rests on specious science. The Smith opinion cited only one earlier Supreme Court opinion in the 2002 case of McKune v. Lile (oyez) to support the proposition that sex offenders have a high rate of recidivism. In McKune, a convicted sex offender challenged the constitutionality of Kansas’s treatment program for sex offenders. The Court deemed Kansas’s scheme appropriate to reduce the “frightening and high” rate of recidivism among sex offenders. The Court’s only data put forth in McKune in support of this proposition was a citation to a sex offender treatment article produced by the National Institute of Corrections (“NIC”).

For its part, the NIC article also did not publish any statistical analysis; instead, it referred only to a 1988 article published in a popular trade magazine Psychology Today. In turn, the Psychology Today piece simply contains the following statement: “Most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This extreme statistic was not supported by any empirical evidence. The authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training.

Id. at 39.

The Sixth Circuit’s reliance upon empirical research to reject the Supreme Court’s assumption that sex offender registration laws are necessary for public safety has not gone unnoticed. The State of Michigan has petitioned the Supreme Court for a grant of certiorari, and that petition was discussed at conference yesterday. See SCOTUS online docket; see also SCOTUSblog case page. [UPDATE: On March 27, SCOTUS asked the Solicitor General to file a brief expressing the position of the United States.]

Nonetheless, the Sixth Circuit’s decision in Does #1-5 v. Snyder has already been cited by other courts to support striking down portions of sex offender registration statutes in their jurisdictions. Dr. Hamilton notes recent decisions from the Eleventh Circuit, the Fourth Circuit, and a District Court judge’s ruling from the Northern District of Indiana.

I am aware of no current litigation in the military jurisdiction challenging the federal Sex Offender Registration and Notification Act (SORNA) on grounds similar to those raised before the Sixth Circuit in Does #1-5 v. Snyder. That being said, CAAF has shown a willingness to test the constitutionality SORNA’s application in the past – see United States v. Newton, 74 M.J. 69 (C.A.A.F. 2015) (CAAFlog case page).


28 Responses to “Scholarship Saturday: Sex offender registration statutes are not faring well when subjected to rational basis scrutiny”

  1. stewie says:

    I thought that, at least with respect to pre-pubescent offenders (i.e. pedophiles) the recidivism rate was higher?
    I don’t know…obviously we should use actual science to figure this stuff out vice just what feels right…with that caveat, I thought I read there was some evidence to that narrower slice of sex offender somewhere.

  2. Vulture says:

    I did a Google search for “Stewie, Military Lawyer” and came up with a Family Guy episode for “Saving Private Brian.”  The point being to say that the idea of a sex offender registration can only serve the purpose of putting a red label on a person.  So much information is out their and available for those with a legit interest that registration in this form is redundant.  I don’t mean that in a for the better good way.

  3. Dew_Process says:

    Well, one of the proverbial “pink elephants” in the courtroom here is the claim that SORA’s requirements aren’t “punishment.” Because if they are, then that opens up the ex post facto issue when (seemingly yearly) amendments are made retroactive.
    @ Stewie — there is published research I believe that pedophiles who themselves were victims of pedophilia, have a higher recidivism rate – which is the underlying basis for civil commitment proceedings.

  4. Concerned Defender says:

    They are clearly punitive, and a prime example of the total intellectual dishonesty perpetuated by the proponents of same.  As such, clearly they are sentence enhancements, ex post facto in many cases, and they should be allowed for comment on in sentencing.

  5. Tami a/k/a Princess Leia says:

    And yet the defense isn’t allowed to argue for a lesser sentence due to SOR because, well, SOR is speculative?  We just don’t know how it’ll work?

  6. Ptolemy says:

    Even if the registries can be considered “administrative” (and not punishment), the laws that target people on those registries – especially when applied retroactively – are anything but.

  7. Esquire says:

    Many jurisdictions have since added new crimes which constitute “sex offenses,” including misdemeanors, that can cause decades or lifetime registration. I doubt controlling case law from the Supreme Court even considered this. The science is clearly erroneous. Even still, I wonder how any argument can prevail on rational basis considering how low of a barrier it is against constitutional infringement. Remember, the Constitution does not protect us from dumb laws, or so the late Thurgood Marshall said in controlling opinion for rational basis review.

  8. stewie says:

    Well obviously it’s meant as a red label. If it’s legit science that could be ok, if it’s not, then it’s not.
    It’s most certainly punishment either way.

  9. Shelly Stow says:

    Great article and very refreshing to see commentators willing to discuss the topic using empirical evidence as a basis for doing so.
    In regard to re-offense: There is little correlation between those who were themselves victims and the risk of re-offense. There is one very, very small sub-group whose victim characteristics are correlated with a greater risk of re-offense. Those characteristics are: same sex victim, virtually always male for this purpose, and chosen at random, i.e. a stranger to the perpetrator. This is an extremely small percentage of all offenders and an even smaller percentage of all on a sex offender registry, considering that the registries contain teen-age lovers and sexters, those whose contact was statutory, college-boy flashers, children engaged in play and curiosity, and the innocent.

  10. FormerAF says:

    I find it funny that the Military Courts are talking about Federal SORNA, because DoD Instr. 1325.07 (2013) states: “A Service member convicted of any offenses listed in Table 4 or convicted of offenses similar to those offenses listed below, shall be advised that the individual jurisdictions in which the offender might live, work, or attend school may require registration for offenses not listed below. Each registration jurisdiction sets its own sex offender policy and laws.”The DoD Instruction says nothing about Federal SORNA being applied to military convictions, nor does it have provisions for notifing those convicted prior to SORNA’s enactment that they are subject to the new federal law.  All it says is that offenders must follow the law in as required by the states.  That instruction is current.

  11. Former Defender says:

    Removing registration may increase the willingness of accused to plead guilty. Many former clients I had were more concerned with sex offense registration than doing jail time or being separated from the service.  With registration, mandatory minimums and mandatory punitive discharges there is little incentive to plea. 

  12. Vulture says:

    Maybe you’ve heard the joke that an American goes back to visit a villiage in the old country when he asks a stranger his name.  The stranger replies, “Do you see that church?  I built it with stone carved from stone with me own hand.  But do they call me Shamus the Church Builder? No.”  The stranger shakes his head and points to a fence.  “See that fence?  I built it with me own hands from trees from the wood and an ax that took a year.  But do they call me Shamus the Fence Maker?  No!”
    “But you fuck one goat.”
    So I say enough with the trying to point to anyone that you can say their elimination from society would cure all ills.  I think that Obama’s thing about get them out and la la la, does have an effect and people do remember it.  I’ve probably said too much for a Sunday.

  13. Scott says:

    Former Defender, you are absolutely right.  We have almost no guilty pleas to offenses that would result in SOR.  This is a huge time drain for both sides.
    Issac, thanks for posting this.  Very interesting.

  14. Cheap Seats says:

    The Bureau of Justice Statistics has some great data on sex offender recidivism at: https://www.bjs.gov/index.cfm?ty=pbdetail&iid=1136 and https://www.bjs.gov/content/pub/pdf/ropfcs05p0510.pdf.  Defense counsel should be using this data to reshape the narrative when looking for deals.  Using the Big G’s own research to educate the CA that recidivism isn’t upwards of 90% like the mythology goes can be very effective.  It also shows that lower sentences may be appropriate, with proper controls (use SORNA as the monitoring due to non-availability of lifetime probation though court-martial).  I am speaking in the context of cases where there is/should be a deal, not whether to take a deal with SORNA hanging over the head.

  15. Isaac Kennen says:

    SORNA, at 42 USC 16911(5)(A) defines a “sex offense” requiring registration as:

    (i) a criminal offense that has an element involving a sexual act or sexual contact with another;
    (ii) a criminal offense that is a specified offense against a minor;
    (iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title 18;
    (iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119 (10 U.S.C. 951 note); or
    (v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

    Given that definition, all Art. 120 offenses require registration, not because the DoDI says so, but because they fall under the definition of “sex offense” provided at 42 USC 16911(5)(A)(i).  
    Further, SORNA, at 42 USC 16928a, requires individuals who have a qualifying conviction from a court-martial (i.e., any offense where one of the elements involves a sexual act or sexual contact with another) to be entered into the National Sex Offender Registry (NSOR) as well as the Dru Sjodin National Sex Offender Public Website (NSOPW).  This requirement exists regardless of whether the Secretary has listed that offense in the DoDI, and it exists regardless of whether state jurisdictions make the offender register. 
    Given that statutory landscape, it’s not surprising military courts are having to address SORNA’s application.

  16. Matt says:

    To add to Isaac’s post above, you’ve also got CA authorities signing actions that direct sex offender registration. This then triggers the client signing a DD Form 2791, for what could be a sex offense in table 4 of the DODI, but not an offense in the client’s eventual state of residence. However, many states require registration for nonregisterable offenses in that state if the offense was considered registerable in a different jurisdiction. This form also is prepared by people without much research into the state law or without much appreciation for the impact that the form can have.

  17. Lone Bear says:

    I have nothing to add to the discussion, but I’m really glad to see this post.  This is a topic which needs to be revisited, the way we treat people convict of sometimes minor sex offenses is inhumane. Post like this on ABA top 100 blogs help.

  18. Bionic Barry Dylan says:

    It makes my day to see some ground being made in the fight against the unconscionable effects of SORNA. 

  19. FormerAF says:

    Isaac Kennen and Matt:I am well aware what SORNA says.  I was convicted prior to it’s enactment of an offense that does not require lifetime registration, and signed the previous form notifying me to follow the laws of the state in which I reside.  I have never been notified of my duty to register under SORNA by the Air Force, Department of Defense, or the Federal Government.My state is non-complaint with Federal SORNA and has chosen not to implement the law, and does not care about the 10% loss in Bryne Justice Grants.  My state requires that all out-of-jurisdiction offenders register for a minimum of 10 years, or as long as the convicting jurisdiction required.  Because the State Sex Offender Registration Office sees the military as it’s own jurisdiction under Title 10, and not Title 18, and because the Department of Defense has no guidance on what tier my offense would be or how long my registration should be, they removed me from the registry after 10 years and state that I have no further duty to register in their jurisdiction.  They will not register me.Because SORNA leaves it to the states to register “federal” offenders, that the state will not register me, and because the federal government does not do registration of offenders through federal authorities – there is no way for me to comply with SORNA as long as I live in this state.Because I am not registered in my state, in accordance with state law, I no longer show up on the National Sex Offender Registry because all the National Registry does is pull from the states’ databases.

  20. vivian says:

    why being lenient on those sex offender, if i could lobby for laws, i would lobby for death penality to all sex offenders. Or restrict their life to what they can do on a daily basic. Does not matter if they finish serving their time or not. Let make it harsh!

  21. FormerAF says:

    Also, I am concerned that any CA (Convening Authority I’m assuming) would be issuing orders for registration, as the CA is part of the military justice system.  That could be construed to say that the act of registration is part of the sentence (i.e. punitive).  The Registry only survives because SCOTUS and numerous lower Courts found it to be a non-punitive administrative remedy (Smith v. Doe).  Once you make it part of the sentence, you open up the door to later expost facto challenges when said registry scheme is updated, amended, and enforced retroactively (i.e., as is SORNA to the Jacob Wetterling Act).  It would be best if the CA and Military Court system focused on the conviction, and then notified the guilty or their duty to register under federal law – with no other orders.   Such orders by the Court or CA determining the application of SORNA as applied to service members, in my opinion, are outside the jurisdiction of a Title III Court and CA, and are best left to the federal courts in it’s civil context.  Otherwise, we open the door to proving this statue is what it is – ” expost facto punishment.”

  22. k fischer says:

    That is very astute of you.  Have you ever actually looked at a sex offender registry and seen some of the ridiculous crimes that people have been convicted for which they have to register?  To say they should all be put to death, is very shortsighted.  Makes me think that perhaps you agree that trolling is a art, or you are just a dimwit.
    But, I would be willing to support the enactment of such a draconian law, if we also put to death those who make false accusations and waste police and the family court’s time.  Let’s face it.  I have never met a person who makes false accusations who was not a waste of life who should be forced to carry around a ficus tree to replenish the oxygen they steal from me, and society in general.

  23. Bionic Barry Dylan says:

    During my time as a DC, I lost one specification under Article 120 – just one – and it still haunts me to this day.  The facts presented during the court-martial showed that, at the worst, what my client was guilty of was touching the butt of a female who had been drunkenly flirting with him at a bar for several hours.  He was a good NCO with no prior misconduct and multiple deployments in a short manned career field.  And oh, by the way, was found not guilty of multiple other 120 offenses at the same court-martial which stemmed from the same encounter with the same female on that same night at that same bar.
    His adjudged punishment was far less than the maximum punishment he could have received as the result of NJP.  Of course, since the punishment was so low, we did not receive meaningful appellate review, and our requests for review, clemency, or any other type of reasonable disposition were denied.  Even if you accept that my client was guilty, which I dispute to this day, do you really think an individual doing that deserves to be punished for the rest of his life?  If the average male lives to the age of 72, my client will have to serve a nearly 50 year sentence for that butt grab because of SORNA’s unbelievably reprehensible restrictions.  Many convicted murderers serve lighter sentences than that.

  24. David Bargatze says:

    I believe abusive sexual contact is only a Tier III SORNA offense (lifetime registration) if it was committed against someone under 13 years old. Otherwise it’s a Tier II offense (25 years registration). It may be that your client lives in a jurisdiction that uses longer registration periods than SORNA requires, but I don’t believe SORNA demands lifetime registration under the facts you presented.
    The difference between registration for 25 years and registration for life doesn’t invalidate your argument, as many serious offenses receive punishments of less than 25 years. I infer that you believe 25 years is nearly as unconscionable as life, and the author of the law review likely agrees with you.
    Without asserting that this is true in this case, convicts (and particularly convicted sex offenders) may be too easy group to target. It is nearly risk-free to impose requirements on them without assessing whether those requirements benefit society or not.

  25. David Bargatze says:

    I apologize for the text wall above. I forgot that this is not a WYSIWYG forum. The paragraph spacing is a lie. (Much like the cake.)

  26. Bionic Barry Dylan says:

    My client intended to return to a jurisdiction that required lifetime registration for the offense he stood convicted of – that was not clear from my post.  But you are correct about my assessment – be it SORNA or that particular jurisdiction’s implementation of their own sex offender statutes, 25 years or life or anything beyond a very brief period is grossly disproportionate to the offense.

  27. stewie says:

    The cake is indeed a lie, but the spacing can be made truthful by simply
    double spacing (which turns it into single spacing).

  28. k fischer says:

    Re: Portal references