Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

from the it's-only-a-230-year-old-document-that-people-have-hardly-heard-of dept

Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.

If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn't: an injunction permanently preventing the state from enforcing this law against anyone.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn't going to play well with their constituents. But they'll have to be far more careful this time around, and actually allow these citizens who've served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.

To be sure, there are horrible people on sex offender registries who've violated and harmed victims in horrific, incalculable ways. But there are also people on registries who've done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It's not just child rapists who end up on these lists. It's people who've made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives -- one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.

The opinion [PDF] includes a list of SORNA's demands that fall outside of the Constitution -- prohibitions and requirements state legislators won't be allowed to use in their replacement law.

(a) Provisions Void for Vagueness:

(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;

(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);

(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).

[...]

(c) Provisions Void under the First Amendment:

(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);

(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);

(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);

(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).

The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

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Filed Under: 6th circuit, civil liberties, constitutional, michigan, sex offender registry, sex offenders, sora


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  • identicon
    Anonymous Coward, 20 Feb 2020 @ 3:33pm

    Rulers are unaccountable

    ... so the Michigan legislators, governor and penal bureaucrats suffer absolutely no personal legal consequences for their criminal actions in creating and enforcing clearly unconstitutional laws.

    Rulers are special people.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Feb 2020 @ 7:37am

      Re: Rulers are unaccountable

      Rulers are special people.

      So are the citizens that believe in eternal punishment for a finite crime.

      Don't just blame the Rulers, the people they represent are just as guilty of having that mindset as they are.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Feb 2020 @ 9:36am

        Re: Re: Rulers are unaccountable

        These rulers are so special that they need special rights and special immunities just in order for them to be so special.

        These special people are also the ones who preach law 'n order, zero tolerance, minimum sentencing ..... for everyone but themselves. Their little group of special people are given take many special privileges that the not so special people are not even aware exist.

        But do not despair, they have our best interests in mind, they told me so!

        reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 21 Feb 2020 @ 1:48pm

      Re: Rulers are unaccountable

      This is because the various branches of government are considered co-equal. Nothing that a member of a state legislature or a governor does in the process of executing their duties (short of an abuse of power which would have to be proven separately) can be charged in a court of law. This protection exists so that the executive can't simply have his opposition in the legislature tossed in jail for speaking out against him.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 21 Feb 2020 @ 2:37pm

        Jailing the opposition

        Ah, yes. Harassing and jailing opposition parties and dissidents falls in the purview of secret police, such as the FBI, ICE and now, the CBP

        But gubernators leaving their rivals alone is a long standing tradition, here in the States.

        reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 21 Feb 2020 @ 4:36pm

      Re: Rulers are unaccountable

      their criminal actions in creating and enforcing clearly unconstitutional laws.

      I have never heard of any criminal code that describes passing a law that is later found to be unconstitutional. What section of law are you proposing that these people have violated? I assume you mean "criminal" literally since you are bemoaning the lack of legal action against them.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 20 Feb 2020 @ 3:38pm

    But the headlines they got for making it more expansive were so helpful. You label them a sex offender & people KNOW how horrible a person they are:
    sexting
    peeing in an alley
    Romeo & Juliet star crossed lovers separated in age by a year
    and a host of things most people don't consider sex.

    Sex Offender Registries are a tool, the problem is there are not that many actual hard core sex offenders. So they expand & expand the 'rules' of who goes on the list to they can tout their wins.
    See Also:
    "OMG A MAN IN A WHITE VAN LOOKED AT ME AT TARGET!"
    "OMG 10 Trillion teens are trafficked to fsck everyone at the 'Big Game' 14 times over."
    "OMG a 12 yr old walked to the corner store... ALONE!!!!!!!!!!!"

    Fear & Panic create shitty laws & make society shittier.

    Yes there are those we should keep tabs on, but if they are actually that dangerous why are they not still locked up?
    Who would balk at life behind bars for someone who raped a baby?

    Who would cheer forcing a guy to register for life for the drunken mistake of peeing in an alley?
    Does having him on a list make us safer?
    Does the list not explaining the actual crime make us safer?
    Does encouraging everyone to just see SORA & treat him like Typhoid Mary make us safer?
    Does this make us safer as we keep destroying his life over 1 minor non-event making breaking the law the only way he can survive?

    We need attention spans & to give up the keep stuffing things into the definition of a label until it truly is pointless & harms more than it helps.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 20 Feb 2020 @ 4:08pm

    Romeo & Juliet laws

    Interestingly, many state Romeo and Juliet laws don't allow for Romeo and Romano or Juliet and Julia.

    I'd argue in any society with the western world's hallmark squeamishness about human sexuality, if a sex offender registry can be made constitutional, it's time to reconsider the constitution.

    Note that we don't have state-mandated hate crime registries. Or violent offender registries, or even homicide registries.

    reply to this | link to this | view in chronology ]

    • identicon
      spodula, 21 Feb 2020 @ 1:10am

      Re: Romeo & Juliet laws

      You say western worlds sqeamishness, I think you mean the US's sqeamishness.
      Most European countries use their discression about that and it takes a special kind of pearl-clutching to declare someone having a drunken wazz in an alley a sex offender.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 21 Feb 2020 @ 1:34am

        US Squeamishness

        It is totally true that the US has a special kind of hang-up when it comes to sex. And truth be told, I don't know what countries have sex-offender registries and which don't. But when it comes to squeamishness, fifteen hundred years of Christianity has assured there's a lot of prudishness to spread around.

        New revelations come to me all the time about the stuff European institutions continue to do to mess with the sex lives of their folks, from the UK's extended efforts to lock down internet porn to the Vatican's child sex abuse epidemic, cover-up and refusal to address. And still it's not willing to consider letting clergy be married, allowing gays or women in the seminary or even cutting women some slack regarding reproductive responsibility.

        So yeah, while I'm most concerned about the US mellowing out a bit, and ceasing to mess up its kids, it seems that we're far, far from alone.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 21 Feb 2020 @ 4:24pm

          Re: US Squeamishness

          The most enjoyable thing about the sex is icky crowd who think everything is a porn sin.... always seem to get caught doing the most fscked up kinky things.

          reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 20 Feb 2020 @ 5:18pm

    Note that we don't have state-mandated hate crime registries. Or violent offender registries, or even homicide registries.

    Yet.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Feb 2020 @ 10:19pm

      Re:

      That's because you can basically tell by looking.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Feb 2020 @ 12:17am

        Re: Re:

        That's...really not true.

        reply to this | link to this | view in chronology ]

        • icon
          Ben (profile), 21 Feb 2020 @ 7:25am

          Re: Re: Re:

          Tell that to the cops who think that anyone with non-white skin is suspicious.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 21 Feb 2020 @ 7:29am

            Re: Re: Re: Re:

            Cops default assumption is that everyone is a crook.
            This is the consensus among the general population which implies some level of accuracy, it does not mean all cops are like that.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Feb 2020 @ 7:26am

        Re: Re:

        "That's because you can basically tell by looking."
        Can tell what?
        By looking at what?
        You can tell whether a person has violent tendencies just by looking at them? Quite the talent you've got there, how does one utilize such a super power?

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 20 Feb 2020 @ 6:13pm

    "Tells Legislators To Try Writing A Constitutional One"

    Well, that's really inconvenient.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Feb 2020 @ 8:01am

      Re:

      Thankfully, although Legislators can change the Constitution the bar for doing so is quite high.

      Unfortunately, the second one of them clears the bar, we can expect 6 more unrelated changes to come in via paper clip or the bandwagon and most of those changes will be very decisive and discriminating if the current political climate is any indication.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Feb 2020 @ 6:49pm

    How about a registry of people who've made laws that were later found to be unconstitutional?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Feb 2020 @ 10:21pm

    When arrests of undocumented immigrant prostitutes are made, the police don't do dental exams to verify their age. So, obviously, the prostitutes choose to be put in juvie

    reply to this | link to this | view in chronology ]

  • icon
    JoeDetroit (profile), 21 Feb 2020 @ 4:38am

    Term Limits

    Michigan Legislature. What should be a poster child for how fucked up term limits are. These people couldn't govern (or write a decent piece of legislation) to save their own lives. Just a bunch of zealots that could care less what the voters want. Why would they?

    Term limits sound great. "Throw the bums out!" But the reality is either you elect people that are clueless or elect people that are directly from a massive corporation & work diligently for that corporation until they get term limited & return to their job.

    It's doubtful these clowns will be able to write a Constitutional sex registry law. Maybe now I will stop getting alerts from my credit protection service about another offender moving into the homeless shelter a mile away. One of the rare locations these people can live. A lot of these people really need to be tracked. How to do that I do not know. But then I don't write laws for a living.

    reply to this | link to this | view in chronology ]

  • identicon
    JimmyZ, 21 Feb 2020 @ 9:13am

    >If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. I would, but I can't stand to read Greenfield anymore, he's an absolute sh*thead on any subject that isn't the law. I refuse to even give him clicks. Hamilton-Smith should make better friends.

    reply to this | link to this | view in chronology ]

  • identicon
    Johnny, 4 Apr 2020 @ 11:32pm

    S.o.r

    I caught my csc 4 the wen I was 17 in 98 charged in Michigan. If the judge ruled 10 year's ago that it was unconstitutional, can I use the starter if Michigan for the pain and rough life I been forever to live especially since I got couple violation and charged because I forgot to change something and other things also lmk thx

    reply to this | link to this | view in chronology ]


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