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Punitiveness of the sex offender registry ‘negates public safety justification,’ Michigan AG says
Michigan’s attorney general, Dana Nessel, has filed amicus briefs in two cases before the state Supreme Court, arguing that the state’s sex offender registration and notification requirements are unconstitutional. The briefs argue that the requirements are so onerous as to constitute punishment and therefore their retroactive imposition violates the ex post facto clauses of the state and federal constitutions. [Brian Thompson / MI Headlines]
The attorney general’s press release says the briefs argue “that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.” Even from a law enforcement perspective, “the [Sex Offender Registry] Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on.” And the breadth of the restrictions “make it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.” [Sentencing Law and Policy]
Michigan’s sex offender registry, which contains the names of over 40,000 people and is the fourth-largest in the country, has attracted scrutiny for some time. Amendments passed in 2011 retroactively imposed lifetime registration requirements on three-quarters of the people on the registry. An earlier set of changes that imposed stricter geographical limitation was also retroactive. In 2016, in Does #1-5 v. Snyder, the Sixth Circuit Court of Appeals found that those amendments to Michigan’s law were unconstitutional. Yet more than two years later, “the practical reality is that the state hasn’t come into compliance with the court’s decision,” according to Miriam Aukerman of the ACLU of Michigan. In January, the editorial board of the Detroit News called on Michigan lawmakers to revamp the state’s Sex Offender Registry Act. If lawmakers failed to act, the editorial pointed out, the ACLU is prepared to proceed with a federal class-action lawsuit filed last year. [Editorial Board / Detroit News]
Both of Nessel’s amicus briefs, in cases involving individual plaintiffs, point to an evolution in recent years:
“The tide is changing. For years, federal and state courts consistently held that sex offender registration and notification requirements were not punishments and therefore did not violate the Ex Post Facto Clause. Their conclusions relied heavily on the U.S. Supreme Court’s analysis in Smith v Doe … and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive.” But recently, “both state and federal courts have been rethinking the issue in light of the significant additional burdens that have been added to these statutes since Smith upheld a “first generation” registration statute.” [Amicus Brief / People v. Snyder]
Smith v. Doe was decided in 2003. The Sixth Circuit’s decision in Does #1-5 v. Snyder, which struck down the amendments to Michigan’s registry requirements, found the state’s law to be “something altogether different from and more troubling” than the Alaska registration statute that the Supreme Court considered in that case. The Michigan AG’s briefs also note that supreme courts in nine states “have concluded that their registries constitute punishment and their retroactive application an ex post facto violation—either by distinguishing Smith or by relying on their state Ex Post Facto Clause.”
The briefs examine the many ways in which Michigan’s sex offender registration requirements are punitive. Geographic exclusion zones function as “affirmative disabilities and restraints … excessive in relation to the expressed purpose of public health and safety,” and can lead to “banishment of both the registrant and his or her family.” Ultimately, this banishment undermines “rehabilitation, stability, and re-integration into community life.” One of the vivid examples included in the brief is when the restrictions on where people live and “loiter” make it impossible to access specialized counseling, tailored for people with sex offense convictions. And in addition to the geographical restraints, reporting requirements are wide-ranging and onerous, closely resembling those of people on supervised release or parole.
Nessel’s amicus briefs also underscore how registration and inclusion on a publicly accessible registry have an impact far greater than they would have 15 years ago: “The registry’s reach is now widespread in the registrant’s community. And that widespread message is that all sex offenders are dangerous and should be shunned (“not in our town”) … registrants are no longer simply shamed in the public square of one’s own community; they are shamed in the eyes of their county, their state, their nation—and in our global economy, the world.”
On the blog Simple Justice, Guy Hamilton-Smith makes the case for how rare Nessel’s intervention is. “For politicians,” he writes, “few bets have been as safe as wanting to punish sex criminals harsher than the last person who spoke.” He describes a “nationwide race-to-the-bottom,” among state lawmakers. And in the courts, “decisions have favored a brand of results-oriented intellectual dishonesty to conclude that registration is non-punitive and designed to enhance public safety (though with some notable exceptions), even as they turn people into permanent nomadic pariahs wholly incapable of redemption.” [Simple Justice]
“The AG’s briefs,” he writes “make the case that Michigan’s SORA scheme is punishment, and therefore can’t be applied retroactively. That alone, that an AG would be making the argument that these laws are punishment, is remarkable enough. But these arguments go much, much further than that. Nessel’s arguments forcefully and passionately highlight how modern registries are objectively bad public safety policy.” [Simple Justice]
Hamilton-Smith concludes that “these are some of the strongest briefs written assailing public registration as public safety. That they came out of an AG’s office is astonishing.” While it is too early to tell what the outcome of the cases will be, “Now that an Attorney General, as opposed to a civil rights litigator (or even a judge) has called a spade a spade, one hopes that others will be willing to follow suit in the quest to earnestly, effectively, and humanely address the spectre of sexual harms in our society.” [Simple Justice]
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