In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.

First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.”  Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement.  Michigan v Snyder, No. 153696; People v. Betts, No. 148981.

In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements.  Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019).  This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”

These two caselaw developments are discussed further below.

Michigan cases:  As the AG’s amicus briefs point out, nine state high courts have invalidated registration requirements on the ground that they constitute punishment.  A case in the Illinois Supreme Court (in which CCRC filed an amicus brief) could have made it ten, but the court dismissed the appeal, finding a lack of jurisdiction to consider the defendant’s constitutional challenge to his obligation to register on a direct appeal of his criminal conviction.  People v. Bingham, 2018 IL 122008 (Ill. 2018).

The Bingham case had also raised potentially significant issues in challenging the defendant’s registration obligation under the Due Process Clause.  So too does a case currently pending before the Pennsylvania Supreme Court, Commonwealth v. Torsilieri, in which CCRC will also be filing as amicus.  (In Commonwealth v. Muniz, Pennsylvania’s registration requirement was held to be punishment, and its retroactive application barred on ex post facto grounds.)  The day may be at hand when courts begin to raise questions about not only the retroactive—but also the prospective—application of such punitive collateral consequences.  At that point, the U.S. Supreme Court will likely take another look at its 2003 rulings upholding the constitutionality of registration requirements in Alaska and Connecticut on the theory that the registration requirement at issue in those cases constituted regulation not punishment.

A 2017 decision from the District of Colorado provides an example of how courts may approach constitutional challenges to the prospective application of registration requirements, on the understanding that sex offender registration requirements are punishment.  See Millard et al., v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017).  After a bench trial, Senior District Judge Richard P. Matsch held that Colorado’s Sex Offender Registration Act (“SORA”) is unconstitutional as applied to the three plaintiffs.  Specifically, he held that SORA:

• constitutes punishment under the Eighth Amendment (“the effect of publication…is to expose the registrants to punishments inflicted…by their fellow citizens”);
• is cruel and unusual (“Where the nature of such punishment is by its nature uncertain and unpredictable, the state cannot assure that it will ever be proportionate to the offense”);
• violates substantive due process (“plaintiffs have shown that the punitive aspects of Colorado’s sex offender registration scheme enter the ‘zone of arbitrariness’ that violates the due process guarantee of the Fourteenth Amendment”); and
• violates procedural due process as applied to one plaintiff (subjecting him to “Kafka-esque procedure[s]” when he petitioned to de-register).

Judge Matsch’s holding in Millard is currently on appeal in the Tenth Circuit, No. 17-1333.

Alabama case:  In Doe v. Marshall, describing the Alabama registration requirement as “the most comprehensive and debilitating sex-offender scheme in the nation,” Judge Watkins concluded that because Alabama “denies that ASORCNA is designed to ‘punish’ offenders…once a person serves his full sentence, he enjoys the full protection of the Constitution.”  In other words, if registration requirements are not part of punishment, they must survive the searching scrutiny of First Amendment review.  Conducting that review, Judge Watkins determined that branded identification cards are a content-based regulation of speech subject to strict scrutiny; and they do not survive that scrutiny as applied to plaintiffs because using “CRIMINAL SEX OFFENDER” in bold red letters on ID cards, as opposed to a single letter, is not the least restrictive means of allowing law enforcement to identify sex offenders.

Next, he concluded that extensive internet-use reporting requirements are facially overbroad so as to unduly chill a registered person’s “ability and willingness to speak on the Internet,” and thus are unconstitutional.  However, he ruled against the plaintiffs on their Fourteenth Amendment claims, despite their making “several good legal arguments,” finding that one claim failed on the merits, and that the plaintiffs lacked standing to pursue the rest.