Ed. Note: In light of a significant ruling out of Michigan, Guy Hamilton-Smith has been kind enough to do a guest post.
Today marks the end–at least of a chapter–of a nearly decade-long legal saga over Michigan’s sex offender registry. Judge Robert Cleland, federal District Judge for the Eastern District of Michigan, granted that which the Michigan ACLU sought: a permanent injunction prohibiting a number of things, including the enforcement in toto of Michigan’s sex offense registration scheme to anyone who had committed an offense prior to 2011.
A bit of background. Four years ago, the Sixth Circuit Court of Appeals in Does v. Snyder (Does I) issued a stinging opinion striking down several aspects of Michigan’s registry as unconstitutional, capping litigation that originally began in 2012. Judge Alice Batchelder, one of the more conservative judges on the Sixth Circuit, offered the following in concluding that the registry was unconstitutional on Due Process and Ex Post Facto grounds:
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.
Despite this opinion, Michigan’s registry more or less hummed right along unperturbed, as the decision was technically limited to only those plaintiffs who brought the case. In the days after the Sixth Circuit decision, the ACLU brought another federal lawsuit: this time, a federal class action seeking to permanently enjoin the enforcement Michigan’s registry — which is the lawsuit at hand, Does II.
Does II was filed four years ago. Obviously, these things tend to move slowly. In the interim, the parties have tried to reach a legislative compromise. Much to her credit as an elected official, Attorney General Dana Nessel weighed in by way of amicus briefs, and forcefully argued that Michigan’s sex offense registry was not only punitive, but also ineffective at its stated goals.
Despite all of this, the legislature remained unwilling to amend the law to comport with the holding of Does I, and thus the ACLU moved to enjoin the enforcement of the law. The question in Does II was not so much whether the law was unconstitutional: the Sixth Circuit had already settled that question. The central unanswered question was one of severability. Michigan’s SORA had been amended numerous times, as have most state registration laws. Many of the most burdensome provisions were added in 2011, and so if the statute was severable, it would be possible to just remove those provisions and allow the rest of the law to continue on.
Judge Cleland answered the severabilty question in the negative: that, insofar as the Ex Post Facto clause was concerned, the law stands (or it falls) as a whole:
The highlighted version of SORA attached as an exhibit to Plaintiffs’ motion shows that the 2011 amendments permeate nearly every section of the statute, most problematically the definition section of the act related to the tier classification system. It is fair to say that the 2011 amendments almost entirely rewrote the statute. Removing the deeply ingrained 2011 amendments renders the statute, as Plaintiffs’ aptly describe, a “nonsensical alphabet soup” of sentence fragments. The 2011 amendments “are not like a collection of bricks, some of which may be taken away without disturbing the [provisions that existed before], but rather are like the interwoven threads constituting the warp and woof of a fabric, one set of which cannot be removed without fatal consequences to the whole.” Without the 2011 amendments, SORA registrants and law enforcement officials have no guidance for who must register, what events must be reported, where registrants must report, how often registrants must report, or when registrants become eligible for removal from the registry. Michigan law makes clear that SORA cannot be enforced given such glaring omissions.
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 short, Does II means that Michigan is the first state in the nation without a sex offense registry (at least for the bulk of those that the state mandated to be on it) — and along the lines of what their AG Dana Nessel had argued previously — Michigan will get along just fine without one, just as one gets along fine without a pebble in their shoe.
The only thing that public conviction registries are good for is punishing unpopular people and their families. The only people whom registries protect are the politicians who continue to propose and enhance them as lazy and ineffective solutions to complex problems.
While that may be more of a popular sentiment in 2020, it was not that way in the early 2010’s when Michigan ACLU’s Miriam Aukerman and Paul Reingold of the University of Michigan brought these claims to court. To the extent that the cracks have begun to show in the model of registries-as-public-safety, it is in no small part due to their efforts.
Now, we’ll see what’s next. The Michigan legislature can always try to pass a law that is constitutional, or perhaps the state will appeal Cleland’s permanent injunction to the Sixth Circuit. Regardless, Michigan now has an opportunity here to demonstrate what leadership looks like when it comes to creating real and meaningful public safety.
Let’s hope they make the most of it.