Judge tells Michigan to rewrite sex offender registry law

Gregg Krupa
The Detroit News

Detroit — The Michigan Sex Offender Registry Act has been declared unconstitutional again, with a federal judge on Friday  urging the state Legislature to finally act to bring the law into compliance.

Under the decision, offenders will still have to report to their local law enforcement agency or state police post through mid-May, while orders encompassing U.S. District Judge Robert Cleland’s ruling are drafted by the parties.

After that, unless the state Legislature acts, the Sex Offender Registry Act is no longer enforceable against those who offended before 2011.

Michigan's registry contains information on convicts classified as sex offenders, some of it public and some data that's only available to law enforcement agencies.

Under the 1994 state law that created the registry, offenders were required to tell the state within 10 days of a change of address. Under current law, offenders must verify their address in person with their local police department or state police post between one and four times a year, depending on the severity of their conviction.

When the registry was set up, people convicted of one sex offense were to stay on the list for 25 years after the conviction; those convicted of multiple crimes were to be on the list for life.

A 2006 amendment retroactively barred most offenders from living, working or loitering within 1,000 feet of school property. In 2011, a rules change forced many offenders who would have been on the list only for 25 years to remain in the database for life and required offenders to report new phone numbers, email and instant message addresses to law enforcement in person.

Cleland's 32-page ruling invalidates those additional restrictions, calling the school zone restrictions unconstitutionally vague and saying the phone/electronic communication rules are "void under the First Amendment."  

He referred to previous, similar court rulings, including a 2016 decision by the U.S. 6th Circuit Court of Appeals that ruled that law unconstitutional, and to what he said was the Legislature's failure to provide a constitutional law, similar to a federal act, for registrations to proceed.

“For several years, registrants have been forced to comply with unconstitutional provisions of (the sex offender registry)," Cleland wrote.

“The parties, and this court, expected that the Sixth Circuit’s ruling would spur legislative action, and for some time, it appeared that the legislature was poised to pass a new and comprehensive statute, obviating the need for this opinion.

“Unfortunately, the legislature was not able to finalize a new registration statute,” he wrote.

“The court anticipates that its ruling will reignite efforts to finalize a new, unified registration statute that can survive constitutional review, as has the national model, SORNA (the federal Sex Offender Registration and Notification Act).

“But until such time as the legislature acts, (Michigan's registry)will be unenforceable against a large portion of registrants and may be enforced only in part against the remaining registrants,” Cleland wrote.

After the federal appeals court affirmed lower court rulings that parts of the state law are unconstitutional, the state continued to enforce the law.

A class of plaintiffs, represented by the American Civil Liberties Union, complained that their rights were violated in a June lawsuit, on which Cleland ruled Friday.

He ordered both sides in the case to immediately begin to formulate “a joint, proposed form of judgment,” to be provided to the court by March 13.

Sixty days later, the judgment would have the force of law.

“Today’s decision is a win for the public safety of Michigan communities,” said Miriam Aukerman, senior staff lawyer for the ACLU of Michigan.

“The registry is an ineffective and bloated system that makes Michigan communities less safe by making it more difficult for survivors to report abuse, sabotaging people’s efforts to re-enter society, and wasting scarce police resources on hyper-technicalities.

“Today’s decision means that lawmakers must finally do their jobs and pass evidence-based laws that better serve everyone,” Aukerman said. “Michigan families deserve true reform that prioritizes public safety and prevention, not a failed registry.”

Last year, Cleland ruled that the 2011 amendment could not be imposed on offenders convicted before those changes were enacted, citing the federal appeals court, which said the new restrictions unconstitutionally increased punishments after the fact.

But he waited to enforce his decision to give the Legislature time to revise the law. Under his ruling Friday, convicts whose offenses occurred before April 12, 2011, will be removed from the registry unless lawmakers act.

“We urge the Michigan Legislature to focus on what actually works to reduce sexual offending,” said Paul Reingold, a University of Michigan law professor, who was co-counsel with ACLU lawyers on the case.

“The Legislature will now need to overhaul the SORA law, and can do so in a way that is rooted in research and prioritizes prevention, support for survivors, and the successful re-entry of those who have already served time.

“The Legislature has a responsibility to act quickly in order to provide relief to the 44,000 registrants who continue to be unfairly punished by these unconstitutional laws.”

Beyond barring enforcement of the law against pre-2011 registrants, Cleland ruled that exclusion zones, which bar registrants from living, working or spending time in areas around schools, are unconstitutionally vague for all registrants.

Cleland said it is unclear where offenders on the registry can and cannot be.

The ruling Friday focuses on a few of the many problems in Michigan’s current registry, namely overreaching limitations on sex offenders’ daily lives and the act’s retroactive application to people convicted prior to 2011, said Peter Hammer, Wayne State University professor of law and director of the Damon J. Keith Center for Civil Rights. 

While sex offenders need to face consequences for their actions, the law implementing those penalties is overly broad, said Hammer, who also is a member of the ACLU of Michigan board. 

“The bottom line is not that sex offenses aren’t serious and people don’t need to be protected,” Hammer said. “The bottom line is that the current law isn’t necessarily an effective way to punish those offenses.”

Staff Writer Beth LeBlanc contributed.