Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder

Vol. 58 E. Supp.:
by Melissa Hamilton PDF copy

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.[1] The Sixth Circuit’s decision attracted commentary across the legal, policy, and media worlds.[2] 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.

Several criminal law experts and news reporters anticipate that Snyder signals much more than an ex post facto issue.[3] These commentators are likely correct to highlight the opinion’s potential to invite other courts to take a stand against sex offender registration and residency restriction regimes that have been myopically enacted by politicians.

What this conversation is missing, however, is an appreciation of the Sixth Circuit’s engagement with relevant statistical studies within its constitutional analysis. The common legislative presumption underlying sex offender registry laws and residency restrictions is that sex offenders remain a highly dangerous group, and are far more likely to recidivate than other types of offenders. The Snyder opinion, instead, severely criticizes specialized sex offender laws, declaring them ill-suited to their intended purpose of protecting the public. To this end, the Sixth Circuit expressly recognizes scientific studies showing that sex offenders as a group do not pose a significant recidivism risk. ..Continued..