Excerpts from “Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder,” Boston College Law Review | Feb. 22, 2017
By Melissa Hamilton…….
Abstract: In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.
Introduction: In late 2016, the U.S. Court of Appeals for the Sixth Circuit ruled in Does #1–5 v. Snyder (“Doe v. Snyder” or “Snyder”) that Michigan’s civil sex offender law was unconstitutional. The Sixth Circuit’s decision attracted commentary across the legal, policy, and media worlds. The ruling concludes that a state’s sex offender registry and residency restriction law constitutes an ex post facto punishment in violation of the constitution. The Sixth Circuit’s stance in Snyder conflicts with the judgments of nearly all other courts, which have largely rejected various constitutional challenges to specialized sex offender laws and policies…
In the United States, sex offenders are uniquely regarded as moral lepers, in need of constant supervision and forced to the margins of society. The public’s fear of persons who have committed crimes of a sexual nature is so extreme that policymakers across jurisdictions have become convinced that traditional criminal law and sentencing regimes are inadequate to protect public safety. Thus, legislatures have adopted a variety of statutes—purportedly civil in nature—to manage sex offenders beyond their prison terms.
Every state and the federal government now maintain a sex offender registry. Typically, registration requirements are triggered by a criminal conviction for a sex-related offense. Individuals required to register must provide identifying information about themselves, often including (at a minimum) their names, home and work addresses, details about their current physical appearance, and vehicle identification. Registered names and much of the other personally-identifying information generally are made publicly available. The idea is to warn innocent civilians that dangerous sexual predators are in their midst. Many states and communities have also enacted residency restrictions for convicted sex offenders, which typically prohibit these individuals from living near schools, parks, and other locations where potential victims may be present.
Laws of this type, purportedly civil by their statutory terms, result in the inapplicability of the strict constitutional protections ordinarily afforded to criminal defendants, despite the laws’ intrusiveness upon individual privacy, liberty, and security. Courts have generally found these civil laws constitutional as serving the government’s interest in protecting public safety. A foundational principle underlying these policies is the assumption that sex offenders pose a uniquely high risk of recidivism. In enacting such laws, policymakers baldly assert that the need to protect the public justifies the special treatment of sex offenders. Courts have mostly rubberstamped this assertion without paying much heed to whether the presumption of future dangerousness is factually accurate. These decisions align with the perceptions of politicians, the media, and the public who have simply taken it on faith that sex offenders pose an extreme risk to the public, one that criminal sanctions fail to sufficiently thwart.
This presumption, however, has little basis in legitimate scientific study. In fact, the relevant statistics consistently support just the opposite—i.e., that sex offenders are not a singular and exceptional group that poses more than a negligible likelihood of sexually reoffending. Judges who ignore this evidence are complicit in perpetuating unnecessary, unfair, and arbitrary laws that negatively impede upon the lives of individuals to whom they apply. The Sixth Circuit’s decision in Snyder therefore represents a transformative venture, opening the door for judges to decide important constitutional issues by examining relevant interdisciplinary research findings, to the benefit of defendants and the judiciary alike.