Professor Zoldan Co-Authors Amicus Brief Utilized by U.S. Court of Appeals for the Sixth Circuit
October 10, 2016
Evan C. Zoldan, an associate professor of law at The University of Toledo College of Law, recently co-authored an Amicus Brief that was relied on by the United States Court of Appeals for the Sixth Circuit. His co-authors included fellow law professors Sonja Starr of the University of Michigan Law School, Corey Rayburn Yung of The University of Kansas School of Law, and Douglas Berman of The Ohio State University Moritz College of Law.
In its recent decision, Does v. Snyder, No. 15-1536 (6th Cir.), the Sixth Circuit held that provisions of Michigan’s Sex Offender Registration Act (SORA) unconstitutionally imposed retroactive punishment in violation of the Constitution’s Ex Post Facto Clause. Michigan’s SORA, like many states’ sex offender registry statutes, imposed registration requirements on convicted sex offenders. SORA imposed these registration requirements retroactively; that is, they were applied to individuals who had already been convicted and even those who had completed their sentences. However, while Michigan maintained that its registration requirements served a non-punitive purpose, the Court held that SORA imposed restrictions that have traditionally been considered punishment, such as public shaming and onerous restrictions on where registrants can live and work. Because the Ex Post Facto Clause prohibits punishment imposed retroactively, the Court of Appeals invalidated Michigan’s SORA.
The Court of Appeals drew heavily on the Amicus Brief filed by these four law professors, including Zoldan, to determine that SORA’s registration requirements rose to the level of punishment, noting that SORA’s restrictions meet widely accepted definitions of punishment.
“The Constitution’s Ex Post Facto Clause does not prohibit the government from punishing crimes, but it does prohibit the government from imposing punishment for crimes that have previously been committed,” said Zoldan. “The purpose of the Clause is to ensure that people have notice of the consequences of unlawful conduct and the opportunity to conform their conduct to the law.”
In addition to his work on the Sixth Circuit Amicus Brief, Zoldan has previously argued for a more expansive interpretation of the Ex Post Facto Clause.
The Sixth Circuit’s opinion is significant because its broad definition of “punitive” under the Ex Post Facto Clause suggests application outside the context of sex offender registries. The state has already indicated that it intends to petition the United States Supreme Court for review of the Court of Appeals’ decision.