by Dale Chappell

For nearly a decade, the ACLU has fought Michigan’s Sex Offender Registration Act (“SORA”), challenging provisions it claims violate constitutional rights. Despite repeated rulings declaring earlier versions unconstitutional, Michigan enacted a revised SORA in 2021 that retained many restrictive and retroactive measures. In Does v. Whitmer, 2024 U.S. Dist. LEXIS 176146 (E.D. Mich. 2024), the ACLU argued that the updated law continues to infringe on protections against Ex Post Factolaws, due process, equal protection, and First Amendment rights. On September 27, 2024, the U.S. District Court for the Eastern District of Michigan agreed on several key points, delivering a ruling that registrants and advocates across the U.S. may leverage in similar cases.

Here’s a breakdown of the Court’s findings and how this decision may impact future challenges to registry laws nationwide.

Retroactive Registration Requirements and the Ex Post Facto Clause

At the core of Does v. Whitmer was the retroactive application of Michigan’s registration requirements. The plaintiffs argued that retroactively extending registration terms was punitive, violating the Ex Post Facto Clause. “SORA fails to provide for individual review or an opportunity for removal,” the ACLU asserted, “forcing tens of thousands of people … to be branded as sex offenders and subjected to extensive, and in most cases life-long restrictions.” The plaintiffs argued that these retroactive burdens effectively punished them for past actions under new, harsher requirements.

Michigan defended the revised SORA as aligned with the federal Sex Offender Registration and Notification Act (“SORNA”) and primarily aimed at public safety. The Court, however, found that retroactive application of SORA imposed punitive burdens on registrants, ruling that “making registrants subject to certain provisions that were not adopted at the time they committed their crimes violates the Constitution’s protection against Ex Post Facto laws.” The Court agreed that imposing lifetime registration requirements for past convictions amounted to punishment.

Implications for Similar Cases

Registrants in other states with retroactive registry requirements can argue, using Does v. Whitmer, that such obligations are punitive when they extend new burdens to past conduct. Courts may now be willing to scrutinize retroactive registration laws that increase reporting obligations or extend registration duration as potential Ex Post Facto violations.

Due Process and the Right to Individualized Review

Another compelling argument in Does v. Whitmer involved due process. The plaintiffs argued that SORA’s blanket application to all registrants—without considering individual circumstances—denied them the right to procedural fairness. “Registration makes it more difficult for people to find housing, employment, and family support,” the ACLU argued, adding that it “makes the public less safe.”

The Court agreed with the plaintiffs, ruling that people with non-sexual or out-of-state convictions are constitutionally entitled to individualized hearings. The Court stated, “The current procedure for determining whether people with out-of-state convictions should register under SORA is constitutionally deficient,” emphasizing that people should have “notice or opportunity to be heard” in such determinations. The Court noted that the Michigan State Police (“MSP”), tasked with managing the registry, does not qualify as a neutral decision-maker, instructing, “A meaningful opportunity to be heard includes the right to a hearing before a neutral decisionmaker. The MSP does not fill that job description.”

Key Insight for Other States

For registrants challenging mandatory classifications, Does v. Whitmer could pave the way for arguments that due process requires individualized risk assessments. Those with non-sexual or out-of-state convictions can argue that fairness and due process demand case-by-case review to determine if registration serves any valid public safety purpose.

Equal Protection and Unequal Treatment Under Registry Rules

The plaintiffs also raised equal protection issues, particularly for individuals whose plea agreements and convictions predated SORA’s stricter requirements. Many had accepted plea deals based on the older version of SORA, only to find their terms retroactively extended under the 2021 amendments. The plaintiffs contended that denying such individuals the ability to petition for removal, while allowing others that option, is arbitrary and violates equal protection principles.

The Court ruled that SORA’s treatment of certain registrants was indeed inconsistent and arbitrary, especially where registrants were distinguished based on conviction date or plea agreements. The Court explained that “the barred-from-petitioning subclass is not similarly situated to other SORA 2021 registrants … by definition, [they] committed offenses that the legislature has deemed more serious.” This finding underscores the Court’s concern that equal protection requires consistent application of the law, especially when lifetime restrictions impact registrants differently based on arbitrary distinctions.

Impact for Petitioners in Other States

Registrants facing similar challenges could use Does v. Whitmer to argue for equal treatment. A history of rehabilitation or low risk can support the argument that equal protection is violated when lifetime or extended registration is applied to some registrants but not others, especially if these distinctions are based on when someone was convicted or their plea agreement terms.

Compelled Disclosure and First Amendment Rights

Another key issue in Does v. Whitmer was the plaintiffs’ argument that SORA’s extensive reporting requirements violates their First Amendment rights. The plaintiffs claimed that requiring registrants to report online identities, email addresses, and other personal information overstepped constitutional boundaries by compelling them to disclose private information without direct safety benefits.

The Court sided with the plaintiffs in part, finding that certain reporting obligations were overly broad and infringed on First Amendment protections. The ACLU emphasized that “forcing registrants to report information compels them to speak in violation of their First Amendment rights,” a point the Court acknowledged, ruling that broad disclosure requirements that are not clearly linked to public safety are unconstitutional.

Relevance Beyond Michigan

This ruling arguably provides a foundation for registrants to challenge disclosure requirements in other states. By affirming that certain reporting mandates infringe on free speech and privacy, Does v. Whitmer highlights that registries must be narrowly tailored and focused on legitimate public safety needs, rather than imposing broad, generalized reporting obligations.

A Path Forward for Challenging Similar Laws

The Does v. Whitmer decision potentially extends beyond Michigan. By tackling issues of retroactive punishment, due process, equal protection, and First Amendment rights, the Court has provided a framework that registrants across the U.S. can use to challenge similar laws in their own state. The ACLU explained, “This case is automatically part of a class action, covering tens of thousands of people who are affected by these provisions,” adding that the decision could impact all Michigan registrants and potentially those in other states.

This column was written to offer guidance for those looking to challenge similar registration requirements in other states, but keep in mind that the decision in Does v. Whitmer isn’t set in motion just yet. The Court has instructed both parties to draft a proposed judgment, and additional arguments on certain points are likely. Once the judgment is finalized, either side may appeal on the issues where they didn’t prevail, which could lead to further review and possibly alter the District Court’s conclusions. Additionally, the legislature could choose to amend SORA to address the constitutional concerns identified by the Court.  

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