Court says Michigan sex offender rules cannot be retroactive

By David Eggert
Associated Press

LANSING (AP) - Significant changes to Michigan's sex offender registry law cannot be applied retroactively to potentially thousands of sex offenders because the revisions unconstitutionally stiffen the punishment of offenders after their convictions, a federal appeals court ruled recently.

The 6th U.S. Circuit Court of Appeals reversed part of a lower-court ruling last Thursday, saying the state cannot impose harsher restrictions enacted in 2006 and 2011 on offenders who were convicted before the law was changed. The court said the revisions, which include restricting offenders' movement near schools, penalize sex offenders as "moral lepers."

U.S. District Court Judge Robert Cleland ruled last year that those changes could be imposed retroactively but declared other portions of the law unconstitutional.

A spokeswoman for the Michigan State Police, which maintains the sex offender registry, said the agency was reviewing the appellate ruling to determine its impact. The state attorney general's office also was studying the decision, a spokeswoman said.

Michigan has the country's fourth-largest sex offender list, with 42,700 registrants, including nearly 39,000 whose names and photos are shown on a searchable public website. It was not immediately clear how many could be affected by the ruling.

The state began prohibiting registrants from living, working or loitering within 1,000 feet of school property in 2006. Five years later, lawmakers required that offenders be divided into three tiers based on the seriousness of their crimes, rather than on individualized assessments.

Many offenders must be listed on the registry for life under the changes.

"As dangerous as it may be not to punish someone, it is far more dangerous to permit the government under the guise of civil regulation to punish people without prior notice," Judge Alice Batchelder wrote for a three-judge panel, joined by Judges Gilbert Merritt and Bernice Donald.

The court said the sex offender registry law's geographical restrictions are "very burdensome," especially in densely populated communities. The law has a number of similarities to parole and probation and "resembles, in some respects at least, the ancient punishment of banishment," Batchelder wrote.

She added that there is "scant" evidence that the law accomplishes goals such as reducing recidivism.

The lawsuit was brought by the American Civil Liberties Union of Michigan and the University of Michigan Clinical Law Program on behalf of six people who are on the registry for life, including some who were older teenagers who had sex with underage teens. ACLU attorney Miriam Aukerman said the decision shows that the registry "is broken."

"What this does is give the opportunity to the Legislature to go back and look at the ways in which we address sexual offending and come up with a research-based, evidence-based way to protect public safety," she said.

Critics argue that the registry, initially created in 1994, lists so many people that it does not identify the truly dangerous offenders.

The five men and one woman who sued have children. Two of them were 18 and 19 when they had sexual relationships with 14-year-olds. Another man was 23 when he had sex with a girl under age 16 he met at a nightclub restricted to people aged 18 or older - and the two are now married, according to his lawyer.

The appellate court said one plaintiff is on the registry because of a non-sexual kidnapping offense related to a 1990 robbery of a McDonald's.

In March 2015, Cleland ruled that the loitering definition was so vague that offenders were unable to determine if they could attend a parent-teacher conference. He also nullified some reporting rules as vague, such as requiring offenders to immediately report to law enforcement in person after getting a new email address, instant message account or "any other designations used in Internet communications or postings."

The appellate judges did not address those portions of the lower judge's decision but said the plaintiffs' arguments "are far from frivolous" and will "wait for another day."

In December, the Michigan Senate approved legislation to reinstate and clarify parts of the law in response to Cleland's ruling. The bill, which would narrow the school zone to 300 feet and provide exceptions for offenders who have a child in school, is pending in the House.

Published: Mon, Sep 12, 2016

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