In late , U. In its decision, the Sixth Circuit engaged with scientific evidence that re- futes 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.
In late , the U. Court of Appeals for the Sixth Circuit ruled in Does 1—5 v. Several criminal law experts and news reporters anticipate that Snyder signals much more than an ex post facto issue. D criminology , The University of Texas at Austin.
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 of- fenders.
The Snyder opinion, instead, severely criticizes specialized sex of- fender 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. This Essay is intended to highlight the importance of Snyder as an exam- ple of the appropriate use of scientific studies in constitutional law.
In other words, Snyder makes a contemporary case for the relevance in constitutional decision-making of data gathered from interdisciplinary scientific fields, par- ticularly where such data conflict with legislative assumptions. 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 reg- istry. 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 appear- ance, and vehicle identification.
Registered names and much of the other per- sonally-identifying information generally are made publicly available. The idea is to warn innocent civilians that dangerous sexual predators are in their midst. In enacting such laws, policymakers baldly assert that the need to protect the public justifies the special treatment of sex offenders.
In fact, the relevant statistics consistently support just the opposite—i. Judges who ignore this evidence are complicit in perpetuating unnecessary, unfair, and arbitrary laws that nega- tively impede upon the lives of individuals to whom they apply.
The legislation also significantly restricts where individ- uals can live, work, and even loiter. Snyder, the anonymous plaintiffs argued that various provisions of SORA were unconstitutionally vague, should not be enforced under strict liability standards, infringed upon freedom of speech, and hobbled their rights to parent, work, and travel. However, the court did not find that the law imposed an ex post facto punish- ment.
Bull for the proposition that the Ex Post Facto Clause prohibits retroactive punishment. Snyder, 83 4 F. In , in Smith v. The publication of personal information serves as a traditional shaming punishment. The court also found that the law imposes an affirmative restraint, as it limits where registrants reside, work, and loiter, substantively impeding how they live their lives. According to the court, SORA promotes the traditional punitive aims of incapacitation, retribution, and deterrence.
Finally, the court examined wheth- er the law had a rational connection to a non-punitive purpose, and whether the law was excessive with respect to such purpose.
With respect to these last two findings, the court drew upon relevant scientific data to bolster its judgment. Snyder, the United States Court of Appeals for the Sixth Circuit was not so convinced that the scientific evidence supported this assertion. The court looked to a statistical study indicating that sex offenders are actually less likely to recidi- vate than other types of criminals.
It specifically took Michigan authorities to task for their failure to even study whether registries and residency restrictions actually reduced recid- 20 See Snyder, F. Lile to support the proposition that sex offenders have a high rate of recidivism.
The authors were therapists in a sex offender treatment program with no apparent academic research cre- dentials or statistical training. In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending.