The ACLU and activists seeking changes to Michigan’s 40,000-person sex offender registry may have a new ally: new state Democratic Attorney General Dana Nessel. Earlier this month, Nessel’s office filed briefs in two cases before the state’s Supreme Court, arguing that “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification,” according to a press release announcing the action.
Michigan’s Sex Offenders Registration Act (SORA) was first passed into law in 1994 as a non-public database tool for law enforcement, with no reporting requirements and a 25-year time limit, except for repeat offenders. Subsequent amendments to the law have not only made the database public, but also significantly increased the reporting burden on past offenders. Today, for example, a past sex offender who has completed their sentence and probation is required to report to the police in person within three days every single time they open an online account to make a purchase or comment online; get a new job; or even buy, rent, or borrow a car.
When past offenders aren’t going to the police, the police are coming to them. In 2018, for example, MLive reported on a “compliance sweep” of in-person police visits to the homes of past offenders to ensure they were living at their registered address.
Additional amendments to the sex offender registration law were passed in 2006 and 2011, and pulled the reins tighter in ways that have been found unconstitutional in federal court. The most recent restrictions forbid past offenders from working, living, or “loitering” within 1,000 feet of a school, place the majority of past offenders on the registry for life, and retroactively placed people into tiers based solely on their past offense, rather than on the likelihood of their committing another offense.
In two decisions in 2015 and 2017 in the case of Does v. Snyder, separate federal courts found Michigan’s geographic limitations—and the amendment placing past offenders on the registry retroactively—unconstitutional. However, since that case was filed by the ACLU of Michigan on behalf of five individuals and not as a class action, the vast majority of past offenders in Michigan are now uncertain about which aspects of the state’s registry laws they have to comply with and which no longer apply to them.
The two state Supreme Court cases that triggered Nessel’s briefs, Michigan v. Snyder and People v. Betts, were filed on behalf of people appealing their convictions for technical violations of the sex offender registration statute. According to a 2018 report by the Detroit Free Press, more than three dozen lawsuits had been brought by people who were still being forced to comply with the unconstitutional provisions of Michigan’s statute up to three years later.
Efforts to force Michigan’s laws into compliance with the U.S. Constitution aren’t limited to state courts. Last June, the ACLU of Michigan went back to federal court with a class-action suit on behalf of the more than 40,000 Michiganders who have been left in legal limbo by the state’s inaction.
On Feb. 13, former sex offender and Decarceration Nation podcast producer Josh Hoe described life under Michigan’s registration laws during a panel presentation hosted by the Carceral State Project at the University of Michigan. In addition to being required to pay $50 a year for the privilege of being on the registry and having to report to his local police in person four times a year, even when there has been no change in his status, Hoe explained that he also has to inform the police not only when he plans to travel domestically, but where he will be and who he will be with while he’s away. This is in addition to learning and abiding by the registration requirements of any state he’ll visit, all of which have different rules and grace periods.
When it comes to the 1,000-foot geographic limit on working, living, or “loitering” near a school, Hoe reported that other past offenders have been arrested in Michigan for eating at a restaurant that the police said fell within that limit. In an interview with Daily Kos, Hoe said that while he feels safe driving past schools, the situation would change if his car were to break down near a campus. He would probably be unable to wait anywhere near the vehicle for a tow truck and still be in compliance with the law. During his presentation at the panel forum, Hoe reported that most violations of Michigan’s registry result in a mandatory felony charge with a four-year prison sentence.
“This surveillance and control has made me constantly aware of being quite un-free in this supposedly free country,” Hoe said during his presentation. “They say if you do the crime you serve the time. Well, I served the time and I still am not free.”
Miriam Aukerman, the ACLU of Michigan senior staff attorney at the helm of both the earlier Does case and the new class action, called Michigan’s sex offender registration laws “byzantine” in a recent interview with Daily Kos. “It is an incredible labyrinth of restrictions that are almost impossible to comply with, and in some cases, are actually impossible to comply with,” she said, citing cases of past offenders who were told they had to leave their hospital beds to register in person or else face prosecution. In other cases, she said, individuals who are homeless face being charged with violations because they are required to have a valid state ID—which the state doesn’t provide unless an individual can provide proof of a legal residence.
In addition to agreeing that Michigan’s sex offender registration laws are overly punitive, Aukerman, Nessel’s state Supreme Court brief, and a growing body of research all cite evidence that the current laws don’t even protect the public. One 2013 study funded by the U.S. Department of Justice concluded that “if residency restrictions have an effect on recidivism, the relationship is small,” and in fact, “In Michigan, trends indicate that this effect would lead to a slight increase in recidivism among the sex offender groups.” However, the report says, its authors were unable to examine differences in “rates of sexual recidivism events – the explicit target behaviors of residency restrictions – because of a very small rate (less than 3% of the sample) of occurrence.”
In other words, past sex offenders re-offend at such a low rate that it’s virtually impossible to tell whether or not residency restrictions have a significant impact. “There are certainly dangerous sexual predators and the public needs to be protected from them,” Nessel said in the press release, “but the current requirements are not the way to achieve that goal.”
“We don't think the registry is useful at all,” Aukerman told Daily Kos. “We should really be focusing on prevention and treatment.” Legislators, she argued, should devote public resources to the supervision and support of the past offenders who actually need it “rather than trying to—for all 44,000 people on a registry—spend a lot of time trying to figure out whether they've opened a new email account or borrowed their mother's car for a couple of days to get to work.”
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan. This post was written and reported through our Daily Kos freelance program.
