The following is a guest post, at my “request,” from Guy Hamilton-Smith.
Michigan’s Attorney General has entered the cultural and legal conflagration of how we reckon with sexual violence in our society with a remarkable (and compelling) argument: Michigan’s sex offender registries are not effective at stopping sexual violence.
It’s a remarkable argument. Safety and accountability have been the ostensible watchwords in our ongoing collective discussion of sexual violence, but strong (and understandable) emotion has tended to override those concerns and diverted discourse into negative-feedback loops of ever more brutal consequences for anyone who would even be perceived to stand in the way of that punitive impulse. Just ask Aaron Perksy.
For politicians, then, few bets have been as safe as wanting to punish sex criminals harsher than the last person who spoke. Statehouse legislation proposing new and harsher restrictions for the nearly million people now on America’s sex offense registries have been as perennial as the grass in a nationwide race-to-the-bottom, regardless of whether or not those proposals were grounded in any sort of evidence. Court decisions have favored a brand of results-oriented intellectual dishonesty to conclude that registration is non-punitive and designed to enhance public safety (though with some notable exceptions), even as they turn people into permanent nomadic pariahs wholly incapable of redemption.
And so, it is indeed remarkable that Michigan Attorney General Dana Nessel made the argument that sex offender registries are exquisite punishments that undermine safety in important ways. The cases the briefs filed in People v. Betts, and People v. Snyder involve state constitutional challenges to Michigan’s sex offense registry in the context of a pair of people who were convicted of sex offenses in the mid-90’s, well before modern registration schemes were born.
The AG’s briefs make the case that Michigan’s SORA scheme is punishment, and therefore can’t be applied retroactively. That alone, that an AG would be making the argument that these laws are punishment, is remarkable enough. But these arguments go much, much further than that.
Nessel’s arguments forcefully and passionately highlight how modern registries are objectively bad public safety policy.
Modern social science research has shown that SORA’s extensive burdens are excessive in relation to SORA’s purported public safety goals. There are two salient points: 1) research refutes common assumptions about recidivism rates that supposedly justify SORA’s extreme burdens; and 2) regardless of what one believes about recidivism rates, registries are not good tools to protect the public.
The briefs essentially examine every feature of Michigan’s registration scheme and adroitly eviscerate the neutral public safety rationales they hide behind, laying bare an animosity that–even in America, the world leader in punishment–is unmatched.
For example, with respect to laws that banish those convicted of sex offenses from living or even being present in certain areas:
SORA’s geographic exclusion zones are affirmative disabilities and restraints, are excessive in relation to the expressed purpose of public health and safety, can lead to banishment of both the registrant and his or her family, and are contrary to the desired goals of rehabilitation, stability, and re-integration into community life.
On frequent and technical in-person reporting requirements:
The registry’s in-person reporting requirements are affirmative disabilities, and restraints, are comparable to the duties imposed on other convicted criminals while they are under supervised release or on parole, and are excessive in relation to the expressed purpose of public health and safety.
Pointedly, the briefs take pains to illustrate how the ways in which the Internet and technology have evolved have profoundly changed what registration means:
This dramatic growth in the Internet and the dissemination of its information has several consequences for a registrant. First, the registry’s reach is now widespread in the registrant’s community. And that widespread message is that all sex offenders are dangerous and should be shunned (“not in our town”). Second, registrants are no longer simply shamed in the public square of one’s own community; they are shamed in the eyes of their county, their state, their nation— and in our global economy, the world.
In the midst of these rapid developments, the context of the registry is hardly neutral and strictly factual. The inaccurate message is that all registrants are dangerous—because they have been singled out from other types of offenders. Indeed, by including individuals on a list of registered sex offenders, the registry “does more than merely disseminate information.”
On the ways in which the registry can undermine public safety:
Finally, there can be unintended consequences to offender registries. Registries may create incentives for judges and prosecutors to alter charges, and for victims to underreport. For example, a study of South Carolina’s registry law found that, after implementation of the state registry law, defendants were more likely to have charges reduced from sex to non-sex crimes over time, with greater predicted probability corresponding to the implementation of Internet notification. The same study found that an increased number of defendants were allowed to plead to non-sex-offense charges.
Inadequately supported and narrow views of recidivism, along with the possibility that registration might discourage rehabilitation and encourage future crimes, show that SORA’s burdens are an affirmative disability or restraint, promote retribution not rehabilitation, are not rationally connected to the Legislature’s asserted nonpunitive purpose, and potentially endanger the safety of the community.
The briefs both end with a request to the Michigan Supreme Court to find that Michigan’s 2006 and 2011 amendments to its sex offense registration scheme are punitive.
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. While risk assessments would certainly be an improvement over the system we have now, as the briefs note, it’s worth observing we used to be certain we could map one’s future criminality onto the contours of their skull. Skepticism as to our ability to tell the future seems warranted, and whether these educated guesses are a sufficient basis to burn someone at the digital stake a seems worthwhile question to ask.
Whatever the outcome, Dana Nessel’s arguments are not just well-researched, articulate and forceful. They are courageous. For an elected official to make these arguments, even as solidly grounded in reality and research as they are, evinces a courage and a commitment to justice and public safety that is as rare as it is needed amongst the political establishment.
And so, credit where credit is due. Kudos to Dana Nessel.