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6th Circuit Says Mich. Sex Offender Registry Is Punitive and, Not Incidentally, Stupid

Concluding that retroactive application of the law is unconstitutional, the appeals court also questions its rationality.

6th Circuit6th CircuitYesterday a federal appeals court ruled that retroactive application of Michigan's Sex Offender Registration Act (SORA) violates the Constitution's ban on ex post facto laws. In doing so, the court offered a scathing assessment that suggests such laws make little sense even when they're constitutional.

Responding to a challenge brought by five men and one woman who committed sex offenses before the state legislature expanded SORA's requirements, the U.S. Court of Appeals for the 6th Circuit concludes that the added provisions, although framed as civil regulations, are mainly punitive in their effects. That distinction between regulation and punishment is crucial because the Supreme Court has long read the Ex Post Facto Clause as applying only to the latter. In the 2003 case Smith v. Doe, the Court upheld Alaska's sex offender registry, ruling that any costs it imposed were incidental to its regulatory function. According to the Court, a law should be deemed punitive only if the legislature intended to impose punishment or if the law is "'so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.'" In concluding that Michigan's law goes so far beyond Alaska's that it meets the latter test, the 6th Circuit rightly questions the rationality and effectiveness of sex offender registration and the restrictions associated with it.

"What began in 1994 as a non-public registry maintained solely for law enforcement use...has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," the court notes. Among other things, the Michigan legislature in 2006 barred registrants from living, working, or "loitering" within 1,000 feet of a school, a rule that effectively banishes sex offenders from large swaths of densely populated cities such as Grand Rapids (see map). "Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work," the court says. "Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point....These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of 'loitering.'"

In 2011 legislators compounded the registry's stigma by dividing sex offenders into three tiers that supposedly correspond to the danger they currently pose but are actually based entirely on the statutory provision they violated. That classification system, which does not include any individualized assessments, can be very misleading. All of the plaintiffs in this case qualified for Tier III, supposedly the most dangerous category. Yet one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend, while another was convicted of "a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald's." Although neither is a rapist or child molester, they face the same requirements, including lifetime registration that will forever brand them as equally loathsome and threatening.

The 2011 amendments also included a requirement that registrants notify authorities "immediately" and in person when they move, change their names, buy or borrow a car, enroll in school, start a new job, switch to a new email address, or plan to travel for more than seven days. Failure to comply is punishable by fines and prison terms as long as 10 years.

The 6th Circuit observes that "SORA resembles, in some respects at least, the ancient punishment of banishment" as well as "traditional shaming punishments" and parole or probation. It notes that the restraints imposed by the law are "greater than those imposed by the Alaska statute by an order of magnitude" and "relate only tenuously to legitimate, non-punitive purposes."

Although SORA's restrictions are based on the assumption that sex offenders have especially high recidivism rates, the court says, there is little evidence to support that premise. Michigan presented no data on recidivism rates among the state's sex offenders (a telling omission), and research published by the Justice Department indicates that sex offenders "are actually less likely to recidivate than other sorts of criminals." Furthermore, the evidence suggests "offense-based public registration has, at best, no impact on recidivism"; in fact, laws like SORA may "actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities." As for the rule excluding sex offenders from the vicinity of schools, "nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates."

The appeals court emphasizes the mismatch between SORA's burdens and its benefits:

While the statute's efficacy is at best unclear, its negative effects are plain on the law's face....SORA puts significant restrictions on where registrants can live, work, and "loiter," but the parties point to no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects. Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects.

That harsh but justified assessment is obviously relevant not just to the constitutional question of whether retroactive application of such restrictions violates the Ex Post Facto Clause but also to the policy question of whether laws like SORA are fair or reasonable.

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  • Get To Da Chippah||

    Won't someone think of the children?! (Unless you're a sex offender; thinking of children is illegal for them.)

  • Concerned_Citizen22||

    think of what children. some (most) of these ppl did not have 'children' as victims. didn't you read everything.

  • uhclem||

    It's called "dry humor". One assumes you have access to the Google and can look it up.

  • HuhWhat?||

    Nearly 90% of child sex abuse victims are abuse by someone they know. Nearly 70% by a family member. Who is it you want legislators to protect children from?

    ....

  • AlmightyJB||

    I have a lot if problems with registries not the least of which is that you have no information to access a potential threat even though that is supposed to be the purpose. Everyone on the list is assumed to be a child rapist even though that's probably a miniscule percentage. Is someone who gets on the registry because they took a piss in the alley when they were in college a threat to my family 20 years later? No and they never were. Its asinine

  • Chipper-Shredder 2016||

    You say that now. Wait until all your neighbors are serial pissers. Your lawn and garden will look terrible.

  • Mainer2||

    I don't know about people, but I have three female dogs, and my yard has dozens of spots of of utterly dead grass. Where Daisy goes, nothing grows.

  • Fubini Baby||

    That's why they have the tiers for different levels of offense -- which Sullum, incredibly, is complaining about. The two Tier III offenders he chooses to highlight committed awful crimes, you can imagine how awful the other people he didn't highlight were. These aren't cases of a high school senior sleeping with his high school junior girlfriend or somebody pissing on a tree.

  • AlmightyJB||

    We don't see tiers on our websites. Your a sex offender or not. No diferentation for sex assault or for preditory behavior. In essense, its worthless.

  • Baldur Odensen||

    The point was that the tiers are meaningless. In the two cases you mentioned, one was a pretty serious crime - robbery of a McDonald's - which presumably had a brief hostage scenario or the like which triggered the kidnapping charge, and the other was a non-crime - a consensual relationship with a girlfriend four years younger than the defendant. Neither crime was both sexual and nonconsensual.

  • Concerned_Citizen22||

    BUT, "all" of the newer more restrictive 'rules' apply to everyone equally. that, in and of itself, is the problem. The do not bother placing restrictions on individuals based on their behavior as assessed over a certain period of time.

  • HuhWhat?||

    The problem is, the majority of child abusers know their victims. A majority of them are related to the victim. So essentially, while you are peering through the blinds at the sex offender down the block, little Billy is being abuse by a family member behind your back. How did the registry protect Billy?

    ....

  • HuhWhat?||

    Why is it the United States criminalizes what is considered acceptable and even part of normal adolescent behavior in most industrialized countries [consensual sex among similarly situated and sufficiently mature teenagers], and sexualizing acts that have absolutely nothing to do with sex [kidnapping]?

  • uhclem||

    They changed the law "after the fact" in 2004 to say that even an "attempted" charge was to be level 3 and "violent".

    (And on the web at least in my state, those with an attempted charge are listed as "att" because there's not enough room on the internet to write out the entire word. (Or else because they want the RSO's to look scarier)).

  • Baldur Odensen||

    Also, registries are essentially hit lists that target whoever is on them. Even the non-public hit lists such as those in Britain can act similarly. I know of one man in Britain who faced frequent harassment from police because he was on such a list for a thought crime. When he was driving, the police running plates would see his and pull him over, just because.

    In the United States, several persons who committed no real crime (convicted of consensual relationships with a slightly younger girlfriend) have been murdered by vigilantes, and other types of violence are common - though seldom reported to police, because the police respond to such reports with more harassment of their own. Several of my acquaintances are now refugees from the United States.

  • ||

    This is refreshing, thanks 6th Circuit. I have a client I represented for a petition to remove from SORA partly based on Ex Post Facto violation, earlier this year, and now I think we should go for it once again.

  • Rhywun||

    Too bad all it will take is one Willie Horton moment to reverse any reforms and apply the clamps harder than ever.

  • commodious is sick of DUI ads||

    And, much like with terrorist attacks, it will be perfectly timed to derail any sensible reform efforts.

  • Baldur Odensen||

    And much like the "war on terror", the increase of draconian laws will result in substantial blowback.

  • Juvenile Bluster||

    I really don't understand how anyone could honestly think that residency restrictions and the like actually help keep anyone safe.

  • UnCivilServant||

    No one believes that, they just want to hurt the pedos more (regardless of who else gets hurt)

  • kbolino||

    Mostly, this. The undoing of the harsh treatment of people on the registries will come not from popular support for kiddie diddlers but from the growing realization that they aren't the only ones on the list.

  • Rasilio||

    What we need is a bunch of concerned citizens keeping their eyes out and catching the kids of some of these soccer moms that get these laws passed committing some of the harmless offenses that land you on the registry so they can feel the actual impact it has on real people. Then you'll see those laws get repealed right quick.

  • DesigNate||

    I'm pretty sure tailing some kid to catch them in the act of doing something will get you on the list though.

    Drones maybe?

  • ||

    While you are absolutely correct from a practical pov, increasing the misery for everyone to try to force change is morally unacceptable to me - that's the sort of things progs do (schools, sentencing, etc).

    Plus, while the parents of the individual perps will see the light, the rest of the soccer moms will simply reclassify those kids as bad people and become even more hysterical at the thought of predatory children.

  • Mainer2||

    Even the parents of perps may not see the light. For example we had a cop here in NH charged with misdemeanors for a hit and run. The mother of one of the victims said this gave the "appearance" of a double standard. Lady, the cop ran over your kid ! They are pissing on you and you are telling yourself it must be rain, they'd never piss on me.

  • Baldur Odensen||

    You mean like Jessica Lunsford's brother and father?

    http://oncefallen.com/badguys.html

    Joshua Lunsford: 18 years old, convicted of a felony for fondling his 14 year old girlfriend. Result? 10 days in jail, not put on the registry.

    Mark Lunsford: Jessica's father, found with child pornography on his computer. No charges.

    See? No impact on them, because they are supporting the narrative that allows for uncontrolled growth of the State.

  • uhclem||

    So you're saying the registry is a punishment?

  • ||

    how anyone could honestly think that

    These laws are not the result of rational thought; they are the result of unchecked, pants-shitting hysteria. Also, magical thinking that if we just lock up enough people that the kids will be safe.

  • Mainer2||

    Technically it's worse than that because these folks aren't locked up. The magical thinking is that we release unreconstructed sexual predators and pedophiles into the community, but putting their name on a list will keep the children safe.

  • Vernon Depner||

    No, I'm pretty sure the politicians who pass these pandering "________'s Law" acts are aware that most of the people impacted are not "unreconstructed sexual predators and pedophiles", and that's why they're not worried about releasing them into the community after they've served their time. It's not about safety; it's about getting re-elected.

  • Fubini Baby||

    I'm not in favor of the registry as it exists today, but seriously?

    That classification system, which does not include any individualized assessments, can be very misleading. All of the plaintiffs in this case qualified for Tier III, supposedly the most dangerous category. Yet one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend, while another was convicted of "a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald's." Although neither is a rapist or child molester, they face the same requirements, including lifetime registration that will forever brand them as equally loathsome and threatening.

    Not as misleading as characterizing an 18 year old adult having sex with a 14 year old child as "consensual". Presumably it was "uncoerced", but the 14 year old is not capable of giving legal consent.

    That's before you attempt to present somebody who robbed a family restaurant and fled with a child hostage as something other than "loathsome and threatening". A pretty horrid crime even from a libertarian perspective, but since it's not technically "sexual" we have to assume he's a nice guy.

  • Baldur Odensen||

    "If you call a tail a leg, how many legs does a dog have?"

    "Four. Calling a tail a leg doesn't make it one."

    Of course the relationship between the 18 year old and the 14 year old was consensual, presuming both say it was and thought so at the time. The law stating something does not make it so. This should be pretty elementary - as in, a dull 1st grader should understand it.

    The robbery was certainly a serious crime. Without more details I cannot say how serious. Nonetheless, we don't put robbers, or even murderers, on registries. Neither of these people should even be on the registry, much less on the "most dangerous" tier. The point was that these tiers are pointless and unnecessarily punitive, and they are.

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