Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

Legal Issues

from the it's-only-a-230-year-old-document-that-people-have-hardly-heard-of dept

Michigan’s sex offender registry has been struck down as unconstitutional. It’s the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law — something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.

If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith’s guest post at Simple Justice. He quotes the Sixth Circuit’s 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn’t something very many sex offender registries do well, and Michigan’s SORA was one of the worst.

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.

Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn’t: an injunction permanently preventing the state from enforcing this law against anyone.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn’t going to play well with their constituents. But they’ll have to be far more careful this time around, and actually allow these citizens who’ve served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.

To be sure, there are horrible people on sex offender registries who’ve violated and harmed victims in horrific, incalculable ways. But there are also people on registries who’ve done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It’s not just child rapists who end up on these lists. It’s people who’ve made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives — one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.

The opinion [PDF] includes a list of SORNA’s demands that fall outside of the Constitution — prohibitions and requirements state legislators won’t be allowed to use in their replacement law.

(a) Provisions Void for Vagueness:

(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;

(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);

(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).

[…]

(c) Provisions Void under the First Amendment:

(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);

(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);

(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);

(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).

The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

Filed Under: 6th circuit, civil liberties, constitutional, michigan, sex offender registry, sex offenders, sora