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February 9, 2019

Michigan Attorney General files amicus briefs in state Supreme Court supporting challenges to state's sex offender registry

As reported in this press release, "Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court [Friday, Feb 8] in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing 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." Here is more from the release:

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel. “But since its enactment, the 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. It also makes 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.” Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families. Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory. “There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.” Amendments to the Act in 2006 and 2011 — especially geographic exclusionary zones and in-person reporting requirements — are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively. A number of state supreme courts have struck down their state registry laws on similar grounds. “Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

The filed amicus briefs are linked here for Michigan v Snyder and here for People v Betts. The full introductions in both briefs are the same, and that intro seems worth reprinting in full here:

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, 538 US 84 (2003), and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive. But more 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. State Supreme Courts in Alaska, California, Indiana, Kentucky, Maine, Maryland, Ohio, Oklahoma, and Pennsylvania 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. In 2015 the Sixth Circuit reviewed Michigan’s Sex Offender Registry Act (SORA), determining that SORA was “something altogether different from and more troubling than Alaska’s first-generation registry law” and holding that its 2006 and 2011 amendments were punishment and that their retroactive application violated the federal Ex Post Facto Clause. Does #1–5 v Snyder, 834 F3d 696, 703, 705 (CA 6, 2016), reh den (September 15, 2016), cert den Snyder v John Does #1–5, 138 S Ct 55 (2017). The Sixth Circuit cautioned that Smith was not “a blank check to states to do whatever they please in this arena.” Id. at 705. Smith’s rationale, which was premised on the limited nature of Alaska’s registration scheme, seems outdated with respect to modern registration schemes. It surely is with respect to Michigan’s sex offender registry, which has changed greatly since its initial character as a tool to help law enforcement keep Michigan citizens safe from dangerous sexual predators and far exceeds the baseline federal requirements for such registries. It has become a bloated statute whose recent amendments are out of touch with the practical ramifications of its geographic restrictions and in-person reporting requirements, with society’s evolving relationship with the Internet, with the needs of law enforcement, and with a more balanced and researched understanding of recidivism. There are dangerous sexual predators, to be sure, and the public needs to be protected from them. But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense. The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

UPDATE : Over at Simple Justice, Guy Hamilton-Smith has this potent guest post spotlighting some highlights from these briefs and why they their filing is so important. I recommend the post in full, and here is an excerpt:

Reading the briefs, it is impossible not to be struck by their tone. When the government is forced to concede a point in a filing, it is usually done in the smarmiest, most back-handed way possible. There is no trace of that here. There is, instead, a forceful eloquence and a vision of what effective public safety could look like when it comes to sexual harms. Instead of signing off on the idea of registries being a fundamentally good policy, weaved throughout these briefs is a strain of skepticism as to their utility at all. To state it differently, 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. It is much too early to tell what the extended impact of this 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. Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up.

February 9, 2019 at 10:48 AM | Permalink

Comments

Well, well. Signs and wonders.

Posted by: Fat Bastard | Feb 9, 2019 8:38:29 PM

This amicus brief is filed at the same time frame as the documentary by David Feige called "Untouchable", comes out in video on Amazon or Google Play. It's an outstanding film about a powerful Florida lobbyist who uses his political power to pass the toughest sex offender laws in the nation.

As the Michigan Attorney General says "The tide is changing"...indeed, and rightfully so!

Too many laws have been passed and the legislators ignored the fact that they were unconstitutional in the first place.

Posted by: Book38 | Feb 9, 2019 11:38:02 PM

The Sex Offender Registry Act (SORA) is misused for profit & benefits in the judicial system. Who in their right mind would put an elementary child on the Sex Offender Registry? This registry is for life time.

There are dangerous sexual predators, to be sure, and the public needs to be protected from them. But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense. The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

Posted by: LC in Texas | Feb 10, 2019 11:56:57 AM

"Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up."

I don't think there is anything "dim" about this course, it is exactly where we are going. It is certainly the direction my state has gone.

Let's not kid ourselves, the human desire to shame, humiliate, and punish hasn't gone away. So it either spreads wide and not deep or it spreads deep and not wide. All we as a society is doing is moving from one model to another.

Posted by: Daniel | Feb 10, 2019 2:03:45 PM

retroactivity is a huge huge problem

Posted by: federalist | Feb 13, 2019 8:30:54 AM

Federalist: Do you have any evidentiary support for your claim, or is this merely perception?

Posted by: Tom Root | Feb 17, 2019 12:26:33 PM

Federalist: I need better glasses. I read "recidivism" instead of "retroactivity." You are quite right. It is a huge problem. Sorry.

Posted by: Tom Root | Feb 17, 2019 12:27:37 PM

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