Sunday, March 26, 2017

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

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 "frighten- ing 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 of- fender 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 flatly 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.

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).

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