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Michigan legislators passed legislation to revamp the sex offender registry, which courts have concluded is unconstitutional. Advocates say the new policies miss the mark.
The Michigan Legislature last week passed legislation aimed at reforming the state’s sex offender registry, following a four-years-old court order to do so. But criminal justice reform groups, including the ACLU of Michigan, are calling on Gov. Gretchen Whitmer to reject the changes, saying that state lawmakers ignored research that sex offender registries aren’t effective in stopping recidivism.
The new legislation would remove restrictions that bar people convicted of sex offenses from living, working, or loitering within 1,000 feet of a school, which a federal court found to be unconstitutional in 2016. It would also change some aspects of registration for offenders, requiring those who were convicted after 2011 to report email addresses, social media handles, and other “internet identifiers.” The legislature also implemented new rules around displaying this information on the public sex offender registry website.
House Judiciary Chair Graham Filler told local newspaper MLive that if the legislature hadn’t made these changes, he was “afraid a federal judge could invalidate the entire Sex Offender Registration Act.”
The ACLU said that the bill doesn’t make any meaningful changes to the sex offender registry and that the legislature should have worked “with experts and stakeholders to draft a law that is constitutional, evidence-based and provides true public safety.”
In 2019, Michigan had 40,367 registered sex offenders, the fourth-highest of any state. Approximately 2,000 people are added to the registry each year. For years, Michigan State Police have said that they cannot effectively keep track of people or prioritize who needs monitoring because the registry is too large. The state spends about $1.5 million each year to maintain the database, not counting the cost of local police or court actions to enforce the registry.
In 2016, the 6th U.S. Circuit Court of Appeals unanimously ruled that portions of the state’s Sex Offender Registration Act were unconsitutional because they punished registrants without a clear public safety benefit. The state legislature had expanded restrictions on sex offenders and registry requirements in 2006 and 2011, imposing geographic exclusion zones where registrants were not allowed to move, increasing reporting requirements, and requiring registration for life without an appeals process.
The 2016 ruling held that restrictions on sex offenders added in 2006 and 2011 could not be applied to people who were convicted before those changes went into effect. Justices wrote that SORA was a “regime that severely restricts where people can live, work, and ‘loiter,’ that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe.”
In February of this year, a federal judge with the U.S. District Court in Eastern Michigan again ruled that parts of the act were unconstitutional but were still being enforced. U.S. District Judge Robert Cleland urged state lawmakers to quickly reform the law and to specifically target exclusion zones, as well as license plate and email address reporting requirements, which he called “unconstitutionally vague.” He gave the state legislature until May to change these provisions, after which the law would be unenforceable against those who were convicted before 2011.
In April, Cleland ruled that police must stop enforcing registration, verification, school zone violations and missed fees for people on the registry until the public health crisis was over. The judge found that the pandemic has “made it virtually impossible for the Michigan State Police to take the steps necessary” to abide by the earlier judgment and also prevented the legislature from passing reforms to the registry. He also said that in-person compliance with registration requirements would be “virtually impossible for registrants” who may need to isolate during the pandemic.
The state Senate wrestled for months with proposals to change the law and received warnings from the state attorney general that some proposals would not satisfy the court orders. Criminal justice advocates urged the state legislature to consider research showing that sex offender registries don’t reduce recividism and could increase the likelihood that registrants commit a new crime because of the restrictions they face on housing and employment. They said lawmakers should use reforms suggested by the American Law Institute, which argues that registries should be accessible to law enforcement only, should not contain people convicted as juveniles unless the charge was rape, and should limit registration requirements to 15 years after an offender is released from prison.
Miriam Aukerman, a senior staff attorney with the ACLU of Michigan, called on Whitmer to veto the legislation and send lawmakers back to the drawing board. “This legislation ignores the judicial rulings, rejects the science and makes Michigan communities and families less safe,” she said. “The research is clear: registries don’t work … Instead of wasting millions of dollars on a failed and bloated registry, Michigan should invest in prevention and support for survivors.”