The two John Doe plaintiffs each brought a separate action against the governor of the state of Tennessee and the director of the Tennessee Bureau of Investigation, each in their official capacity only. In their respective complaints, plaintiffs alleged  that the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution, (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.

The Sixth Circuit had previously upheld Tennessee’s sex offender registry laws against challenges similar to those plaintiffs brought in these two cases. SeeCutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999). The problem is that legislatures just can’t help themselves, and they keep piling on more and more restrictions. Prior to SORVTA (Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004), Tennessee’s registration requirement was known as the Sexual Offender Registration and Monitoring Act of 1994 (SORMA). SORMA was frequently amended, expanding SORMA’s scope and requirements and contracting registrants’ level of confidentiality. Notably, SORMA was amended in 2000 to require lifetime registration for those convicted of actual or attempted aggravated rape, rape, aggravated sexual battery, or rape of a child. On June 8, 2004, SORMA was repealed and SORVTA was enacted. SORVTA replaced the framework for sex offender registration and restrictions in Tennessee. While much of the former system continued, SORVTA created a new classification of registrants and a new series of requirements, depending on a registrant’s classification. In 2014, the General Assembly of Tennessee again amended SORVTA to create a new offender classification: “offender against children.” Registrants whose victims were twelve years or younger at the time of the offense became subject to lifetime registration, regardless of whether the underlying offense was categorized as “violent.” It was the violent classification that appears to have helped John Doe #1. He had no history of violence.

Quoting from the opinion, the court stated, “Indeed, the Sixth Circuit’s decision in Snyder I has reshaped how district courts in this Circuit analyze challenges to sex offender registration laws under the Ex Post Facto Clause. In their Partial Summary Judgment Motion, Plaintiffs rely heavily on the ruling in Snyder I, arguing essentially that SORA is substantially identical to the Michigan law at issue in Snyder I and is in violation of the Ex Post Facto Clause.” See Opinion at 19. In Snyder I, the Sixth Circuit held that Michigan’s Sex Offenders Registration Act imposed punishment and that therefore the retroactive application of MSORA’s 2006 and 2011 amendments was unconstitutional as violative of the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016). The court in Snyder I took issue with three parts of the statute, which cumulatively made the statute unconstitutional under the Ex Post Facto Clause: (1) the prescription of restricted zones where plaintiffs could not loiter, live, or work, (2) the public classifications to which plaintiffs were subject, and (3) the reporting obligations under MSORA.

There were some claims that survived the state’s motion to dismiss that were not decided by the judge. The plaintiffs asserted that the law violates the right to free speech guaranteed by the First Amendment and imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment. Those claims were not decided because the court was able to grant the relief, they sought on the Ex Post Facto Clause. This is standard for courts. They do not decide issues when it’s unnecessary; however, the court did make it clear that these issues are not frivolous, but they will have to wait for another day.

It is not known at this point if the state will appeal. Generally speaking, the odds are good that they will because they are hard wired to appeal every finding that a statute is unconstitutional. There is a slim chance that they may not in this particular case because the controlling precedent in the Sixth Circuit will be difficult for them to overcome, and they will have to be really creative to distinguish Tennessee’s registry from Michigan’s. There was a recent decision from the Sixth Circuit that held there is an independent duty under federal law to register.

Plaintiff Background

In 1991, Ronald Reid broke into a woman’s home in Shelby County, Tennessee, and raped her. He was sixteen at the time, and she was an adult. He was prosecuted as an adult, and, on February 4, 1992, he pleaded guilty to especially aggravated burglary and rape. He was sentenced to ten years in prison and was released from prison in 1998 based on good time credits. By the time of his release, Tennessee’s first version of registration was operational. Prior to 1994, individuals in Tennessee convicted of sexual offenses faced formal consequences that were mostly similar to those borne by individuals convicted of similarly serious non-sexual offenses. There may have been unique collateral consequences for sexual offenses in some areas, such as in family law proceedings, and defendants convicted of sexual crimes may have suffered especially severe extralegal reputational harms in their communities.

Registration History in Tennessee

In 1994, the Tennessee General Assembly enacted a sexual offender registration and verification information statute. The initial registration system was relatively undemanding and mostly concerned with ensuring the accuracy of registry information. A person convicted of a covered offense was required to register with the Tennessee Bureau of Investigation (TBI) by paper form within ten days of being placed on probation or release from incarceration. At that time, the information in the registry was generally considered confidential, but the TBI or a local law enforcement agency could release relevant information deemed necessary to protect the public concerning a specific sexual offender. After ten years, a registrant could petition a court to order his or her removal from the registry.

In the ensuing decades, however, the Tennessee General Assembly repeatedly returned to the sexual offender registration statutes to change whom they covered, what they required, and the protection allowed to registered offenders’ privacy. Tennessee’s sexual offender registration system progressed from a relatively simple system, dedicated to information gathering and tracking, into a far-reaching structure for regulating the conduct and lifestyles of registered sexual offenders after their punishments were complete and, in many cases, for the rest of their lives.

The Tennessee General Assembly could not help itself, so it continued its pattern of expanding the requirements of the registration regime by amendment, particularly with regard to restrictions related to children, regardless of the age of the offender’s victim. For example, restrictions about entering schools, playgrounds and other facilities were added in 2008. See 2008 Tenn. Pub. Acts, ch. 1164, § 11. Restrictions related to libraries were added in 2011. See 2011 Tenn. Pub. Acts, ch. 287. The Act’s residence restrictions regarding schools and other facilities were extended to offenders whose victims were adults in 2014. See 2014 Tenn. Pub. Acts, ch. 992, § 1. The prohibition on being alone with children other than one’s own in a “private area” were added in 2015. See 2015 Tenn. Pub. Acts, ch. 516.

Plaintiff’s Complaint

Reid complains that he is especially distressed by the ways in which his registration status has interfered with his parenting. For example, he is unable to take his young children to playgrounds, an activity he had done with his older child before the Act was amended to make it unlawful. His children’s principals have been unwilling to grant Reid permission to come onto school premises, so, while he can drop his children off and pick them up, he cannot go inside or attend school events. For that reason, he missed his daughter’s kindergarten graduation and his stepson’s high school graduation last year. His daughter recently wanted to go to a fair, but he was not able to take her because he believed it to be unlawful under the Act. On top of these restrictions, a police detective has informed Reid that he cannot decorate his house for Halloween, cannot take his children trick-or-treating, and cannot hand out candy himself.

The Court concluded that its analysis in this case would be based on the decision in the case Does v. Snyder decided by the United States Court of Appeals for the Sixth Circuit. See Does v. Snyder, 834 F.3d 696 (6th Cir. 2016). The court determined it should conduct its analysis using the Mendoza-Martinez factors. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Those factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter(intent), [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

In Does v. Snyder, the court accordingly found that the Michigan law was punitive in effect and could not be imposed retroactively. The Snyder court forcefully explained:

A regulatory regime that severely restricts where people can live, work, and “loiter, ” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by -at best- scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

In this case, the court cautioned, “Reid may want and ultimately need to present a good deal more evidence. For now, however, the court can take judicial notice of some basic facts. For example, while the court has no evidence of the full number of parks, schools, child care facilities, and recreation areas in Nashville, the court can take judicial notice of what anyone else in the city can see: that those locations are numerous and spread throughout at least much of the city.” The court noted, “Reid offered at least three examples of instances in which the Act was used against him, none of which gives any indication of having benefited public safety at all. First, Reid, who appears to have been harming no one, was prosecuted for a simple failure to update his information. Then, later, he was arrested and charged again simply for trying to do a job that required him to be on school premises. Third, he was targeted in Halloween-related restrictions which included demanding that he comply with conditions that the state defendants concede appear nowhere in the Act.” The court noted that the mistaken imposition of Halloween restrictions demonstrates that placement on the registry makes one a potential target for law enforcement scrutiny over and above what the law actually requires. The court also stated, “The undisputed evidence in the record, therefore, supports the conclusion that the punitive effects of the Act outweigh any civil benefit.”

NARSOL is excited about this case because it is another step in building the body of case law, which will help us in our long-term goal of elimination of the nightmare of public registration. It is worthwhile to note that the court in Doe v. Rausch mentioned that the Tennessee Supreme Court had fired a warning shot several years ago which the legislature chose to ignore. The court in Rausch stated, “. . . the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive.” As we stated in our previous article, the lesson for lawmakers would be to stop while you are ahead. Unfortunately, we do not expect that to happen because the political pressure is significant due to widespread public support of registries.