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Punitiveness of the sex offender registry ‘negates public safety justification,’ Michigan AG says


What you’ll read today

  • Spotlight: Punitiveness of the sex offender registry ‘negates public safety justification,’ Michigan AG says

  • DA who ran as a reformer says she needs 100 more prosecutors

  • Corizon, the prison healthcare giant, stumbles again

  • Arizona cops tased a father 11 times in front of his children

  • Three prosecutors roll out more lenient policies toward marijuana

  • Bill would enable Florida sentencing reforms to help people already in prison

  • A chance in New York to end secrecy around police discipline

In the Spotlight

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]

Stories From The Appeal

 

District Attorney Kim Ogg of Harris County, Texas. [Harris County DA website]

DA Who Ran As a Reformer Says She Needs 100 More Prosecutors. ‘How are we making sure that we’re not just building and building a system that we know is not necessarily effective?’ [Roxanna Asgarian]

Corizon, the Prison Healthcare Giant, Stumbles Again. The company recently lost its contract with Arizona after allegations of serious—and sometimes fatal—medical neglect that have echoes across the country. [Elizabeth Weill-Greenberg]

Stories From Around the Country

Arizona cops tased a father 11 times in front of his children: Newly released body-camera footage shows Glendale, Arizona, police officers tasing Johnny Wheatcroft 11 times. In a lawsuit, Wheatcroft and his wife allege that during a traffic stop in 2017, two officers ordered him out of the front passenger seat. They told him they would tase him if he did not comply. They pulled Wheatcroft out of the vehicle while his seat belt was still latched. When he was only partway out of the vehicle, the officers began shooting their Tasers at him. They tased Wheatcroft repeatedly in the back and chest, including after he was handcuffed. They finally pulled his pants down and tased his genitals. His children, who were in the car, can be heard screaming in the video. [Ellie Nakamoto-White / Arizona Republic]

Three prosecutors roll out more lenient policies toward marijuana:  While state legislatures debate legalization, some county-level officials are taking action. So far in 2019, Wesley Bell, prosecuting attorney of St. Louis County, announced that his office would not prosecute possession of less than 100 grams of marijuana; Marilyn Mosby, state’s attorney of Baltimore, announced that she would not prosecute any marijuana possession cases no matter the quantity; and Kim Foxx, state’s attorney of Cook County, Illinois, launched an expungement program for past marijuana convictions while also stating that she would adopt a presumption against incarceration for all drug possession cases. But the Appeal: Political Report writes that these decline-to-prosecute announcements leave many issues outstanding: Other prosecutors who have announced similar policies failed to fully implement them, local police departments can resist the prosecutor’s policies (Baltimore’s said it will continue arresting people for marijuana possession), and municipalities can still rely on the disparate issuance of civil citations. [Daniel Nichanian / The Appeal: Political Report]

Bill would allow Florida sentencing reforms to benefit people already in prison: In November’s election, over 60 percent of Florida voters approved a constitutional amendment to make sentencing reductions retroactive. Now, a state senator, Darryl Rouson, has introduced a bill to implement Amendment 11’s changes. The amendment ended a ban on retroactive sentence reductions that has been in effect in the state since 1885. As of January, Florida was the only state in the country to have such a ban, known as a “savings clause.”  The bill that is now pending would make any future criminal justice reforms automatically retroactive, and all past reforms would apply to people currently in prison. The legislation, as written, is expected to have a major effect if passed. Despite a decline in the number of people sent to prison each year over the past decades, Florida’s prison population has not dropped significantly and its prison costs—$2.6 billion—are the highest they have ever been. [Andrew Pantazi / Florida Times-Union]

A chance in New York to finally end secrecy around police discipline: In 2012, 18-year-old Ramarley Graham was shot and killed by an NYPD officer who followed Graham into his home. Graham was unarmed, but Officer Richard Haste said he had believed Graham had a gun. Five years after Graham’s death, when his mother tried to get information about the internal police department charges against Haste, she was told that the only way was to attend the daylong trial. A lawyer for the police department would not tell her what the pending charges were, and the department would not give her a transcript of the hearing. Nor could she get any information about Haste’s police disciplinary record. Here’s why: the NYPD’s expansive interpretation of a section of the civil rights law, Section 50(a), which it has used to block the disclosure of personnel records for decades. The NYPD even argues that body camera recordings should be considered confidential personnel records. Legislation to repeal 50(a) went nowhere in a Republican-controlled state Senate, but with Democrats now in control of both chambers of the legislature, the outlook is more promising. [C.J. Ciaramella / Reason]

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