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Federal Judge Blocks Michigan From Enforcing State’s Sex Offender Registry ‘Until COVID-19 Crisis Has Ended’

Michigan was one of several states requiring registrants to report to local police stations in person despite the risk to public health from coronavirus.

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A federal judge has blocked Michigan from enforcing its Sex Offenders Registration Act during the COVID-19 crisis. The ruling is the latest in a series of decisions affecting the state’s registry since large portions of it were ruled unconstitutional in 2015. 

Michigan was one of several states, including those with shelter in place orders, requiring registrants to report to local police stations in person despite the risk to public health from coronavirus. U.S. District Judge Robert Cleland’s interim order, issued Monday, nullifies the in-person reporting requirement and forbids the state from “enforcing registration, verification, school zone violations, and fee violations in connected with Michigan’s sex offender registry law from February 14, 2020 until the COVID-19 crisis has ended … and thereafter until registrants are notified of what duties they have under SORA going forward.” Police agencies and the public will still have access to the registry.

Some aspects of the state’s registry law that have been suspended are among those that Cleland previously ruled unconstitutional. They include exclusion zones and a strict liability clause that attaches criminal penalties to even minor reporting mistakes.

Cleland’s ruling defines the end of the coronavirus crisis as occurring “when there is no longer an operative federal or state executive order or legislative act declaring a state of emergency, or, when the Court determines that the conditions giving rise to the need for this Order no longer apply, and registrants are notified of their duties under Michigan’s registry law going forward.”

The interim order is the latest ruling in a lawsuit filed by the ACLU of Michigan, the University of Michigan Law School Clinical Law Program, and the Oliver Law Group seeking to force the state to comply with 2015 and 2016 rulings that found amendments to Michigan’s SORA passed in 2006 and 2011 were unconstitutional. 

In February, Cleland gave the state a timeline and an ultimatum: Bring the law into compliance with the Constitution or the court would rule large portions of it unenforceable. The original deadline for the state and attorneys for the plaintiffs to file their initial proposals was March 13. 

“The plaintiffs’ lawyers are pleased with the balance and fairness of the Court’s interim order,” Paul Reingold of the University of Michigan Law School Clinical Law Program and a lead attorney on the case said in an email. “The state will get the delay it needs—due to the COVID-19 crisis—before entry of a final judgment. At the same time the plaintiff class will be spared the impossible situation of having to stay at home under state and federal health directives while also being compelled to report in person (often within three days) under state law.” 

Reingold added that Cleland’s order will also protect Michigan’s registrants from future arrest for being unable to comply with the state’s in-person reporting requirements in the face of police department closures. 

“This interim order protects the rights of registrants and the health and safety of all of us during this public health crisis,” ACLU of Michigan senior staff attorney Miriam Aukerman said.

Once the current crisis is over, we will need legislative reform to fix our broken registration system,” she added. “But right now what we need is for everyone, including registrants, to stay home and follow public health protocols.”

That legislative reform has been a long time coming. In 2015, Cleland ruled that many parts of the current law are unconstitutional and in 2016, the Sixth Circuit Court of Appeals ruled that it was unconstitutional to retroactively apply new, stricter conditions to people with past convictions. After that ruling, the state decided to interpret the decision as applying only to the six anonymous co-plaintiffs in the case.

The plaintiffs’ filed a second suit in 2016 to force the state to apply the ruling to Michigan’s entire registry, the fourth largest in the country with nearly 44,000 people with past sex offense convictions on its rolls. As of 2018, Michigan had the highest per-capita registration rate in the United States. In May, Cleland paused that lawsuit to give the state 90 days to pass a new law that meets constitutional muster. That deadline came and went with no state action, leading to Cleland’s February ruling that set the March 13 deadline. 

Ryan Jarvi, press secretary for state Attorney General Dana Nessel, told The Appeal that due to a “conflict wall” within the attorney general’s office “we are not commenting on the court’s recent decision regarding the Sex Offender Registry Act,” and referred The Appeal to “our client agency, the Michigan State Police.” 

According to state police spokesperson Shanon Banner via email: “All of the notifications required of us in Judge Cleland’s order have been fulfilled as of noon today (April 7). We are in full compliance with the Interim Order and Injunction.”