From the Detroit Free Press
WASHINGTON — Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan’s sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they’d be off the registry by now, or facing less severe restrictions, have seen no changes.
The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost. The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact. Last October, the U.S. Supreme Court declined to hear the state’s challenge to that ruling, effectively upholding it.
The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes. The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.
Because the appeals court decision came in civil cases and not class-action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them.
And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court. Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.
The disparities can be wide.
One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional. Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.
But it’s different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since. Last September, as a “Tier 2” offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on “Tier 3” — for life. To this day, under Michigan law, he’s subject to all those restrictions from which the first man has been freed.
The only difference is that one went to court.
“I understand it’s my fault that I’m in this situation,” said the second man, who is 60, lives in central Michigan and didn’t want his name used for fear of retribution. “But it feels like I’m continually being punished for something I’ve already done my time for. I just want it to be over with.”
The debate over sex offender registries is going on not just in Michigan. In several states, civil rights advocates and others are challenging the registries — and the retroactive application of their provisions — in court, often successfully, amid a national debate over whether they are worth their cost and with some studies suggesting they do little to improve public safety.
Meanwhile, efforts to change the law have failed — with accusations that legislators won’t broach the topic in an election year and even some members of the Legislature flummoxed by the level of inaction.
“I’d like to sit down and do a rewrite of the entire sex offender registry but in order to do this I have to have pretty much everybody on board or it’s not going to get done,” said state Sen. Rick Jones, R-Grand Ledge, who is chairman of the Senate Judiciary Committee. “At this point, I think it’s going to be left up to the courts to fix.”
Jones said he believes the registry should be very tough on violent rapists and offenders who attack children but there are other cases — especially those involving people who were juveniles at the time of their offenses or who have received treatment and shown through years that they are not a danger to society — where people should come off the list, perhaps after some sort of risk assessment. He says he’s realistic about such changes passing the Legislature, though.
Officials who work with sexual abuse survivors or those in the U.S. Department of Justice Office that coordinates national and state sex offender registry laws say the registries themselves serve an important purpose. What was once a diverse patchwork of state laws that allowed sex offenders in some cases to move to states where there were no registries the public could search has become a more robust system, where every state has some kind of registry. Police are able to locate former sex offenders more quickly if needed. And registries help the public — especially sex abuse survivors — feel safer, said Staca Shehan, with the National Center for Missing & Exploited Children.
As for the concerns of offenders, she said, “It’s their behavior, their criminal behavior, that put them in that position.”
But while sex offenders know their troubles generate little if any sympathy, they still wonder: Do they have rights? Or do they have to go to court — individually — to force the state to comply, knowing that, if they lived in some other states that have balked at accepting the entire menu of rules encouraged by the federal government — New York, for example, or Wisconsin or Minnesota, among others — they’d be off those state’s registries by now and possibly would have been for years.
In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.
While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it’s far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press’ questions about whether they are still enforcing those restrictions. And State Police — which oversees the registry — says, legally, all the restrictions remain in place.
The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.
One former offender, Mason Carrick, 40, of Montcalm County in mid-Michigan, said he’s often left not knowing what’s expected of him legally.
“I’m terrified that I forgot to make a change (to information on the registry) or something, every time I see a cop, I freeze up, I start panicking,” said Carrick, who, about a decade ago, finished a prison term of more than 12 years for sexual conduct involving a child, and reports to the sheriff every three months. He said he told a woman working at the sheriff’s office about the 6th Circuit’s decision, how maybe he didn’t have to do this anymore. “She just looked at me like I was stupid.”
Dealing with predators
Despite myriad cases against the registry being brought over the years, including many by the American Civil Liberties Union, no one disagrees about the need to weed out sexual predators, repeat offenders, and keep them under scrutiny. But the registry doesn’t do that: Based on a federal law enacted in 2006 and tying funding to states on its provisions being substantially followed, it categorizes former offenders into three “tiers” based on the crime they were convicted of, without reviewing what threat they might really pose.
Officials at the federal office that oversees implementation of the federal law — and monitors whether states are in compliance or not — say there’s good reason for that, since it standardizes treatment of offenders and doesn’t require the resources that individual risk assessments would. States that want to implement risk assessments — and can pay for them — are free to do so.
Many states, including Michigan, don’t. But then, to date, only 18 states have substantially implemented the federal rules — despite the threat of losing funding — deciding instead they’d rather keep their own systems in place. Michigan, on the other hand, is not only in compliance with federal rules, it has created one of the toughest registries in the country, including having the 1,000-foot geographic restriction that is not called for by federal law and extending registration requirements for even some low-level fourth-degree sexual conduct convictions.
Michigan’s laws have also resulted in nearly three-quarters — more than 31,500 people — of its registered sex offenders being placed in tier 3, with a lifetime registration requirement.
And there are those who are or have been on the registry that may not fit the bill of hardened predators.
People who have gone decades without committing any crime. People who got swept up at 18 or 19 and agreed to plea deals that were intended to seal their records, provided they met the terms of their release, but who later were put on the registry anyway. People who, as young men or women, say they never knew that the person with whom they’d had contact — in some cases, consensual — was a minor.
It even includes some people never accused of any sexual crime, like a man who, at the age of 20, tried to rob a McDonald’s and, in doing so, had threatened to take the manager and the manager’s 12-year-old son hostage, though both escaped. That threat was enough, once the registry was eventually created in 1994, to land him on it — and after changes in 2006 and 2011, potentially for life.
He was one of the plaintiffs who successfully brought the case to the 6th Circuit.
Then there are people who have turned around their lives, like a woman who, in 2002, when she was 19 and a drug addict, had consensual sex with a boy who was 14 or 15. After serving 2½ years in prison, she went on to become the clinical director of a drug treatment center. She’d held that job for eight years when, in 2016, a Royal Oak officer confronted her, telling her the center was within 1,000 feet of a school safety zone and she’d have to quit, or risk prosecution. Armed with the 6th Circuit’s decision, she sued in federal court and, eventually, extracted guarantees she wouldn’t be prosecuted. She also got the state to remove her from the public registry.
According to State Police, 39 people who had been “tiered” under the Sex Offender Registry Act are no longer because of court orders. Not being on a tier means that restrictions such as a reporting schedule or geographic bans don’t apply to you.
“We get them daily,” said Shelli Weisberg, political director of the American Civil Liberties Union of Michigan, which brought the case decided by the 6th Circuit and is now working on a class action suit with attorney Alyson Oliver to try to force the state to change the law. “Someone (a registrant) has gone to the (police) post to register and, for instance, they don’t have their email information or their car information and the post says, ‘You need it,’ and the (registrant) says, ‘I don’t have to give you that.’ And the post marks them noncompliant.”
Does the registry work?
For a federal statute that was intended to create consistency around the country, it has — in some cases — done the opposite.
In New Hampshire and Oklahoma, for instance, retroactive application of the law was successfully challenged. In Rhode Island, a lawsuit filed over a regulation that prohibited a Level 3 sex offender from living within 1,000 feet of a school — and would have put 64% of the city of Providence off-limits — resulted in an order prohibiting its enforcement, creating a situation in which lower-level offenders faced tougher limits than Level 3 ones did.
In Maryland, the state Court of Appeals ruled in 2013 that, despite arguments from survivors’ rights groups that it was warranted, the state Constitution limited retroactively applying tougher standards to offenders who had previously been convicted.
And in North Carolina, the National Association for Rational Sexual Offense Laws — a group that argues that registries are ineffective at reducing crime and make it far more difficult for offenders who have served their sentences to find work or homes — has filed a federal lawsuit challenging recent changes to that state’s registry law.
Meanwhile, in Michigan, dozens of lawsuits have been brought, especially after the 6th Circuit made its ruling in August 2016, with offenders arguing that the rules were vague and unconstitutional, and noting that, in some cities, like Grand Rapids, the number of “school safety zones” puts much of the city off-limits, albeit without any clear indication to registrants where those geographic limits begin and end.
In lawsuits, some former offenders said they were made homeless when police showed up at their doors, told them they lived too close to a school and had to leave or face prosecution. Others complained of harassment by law enforcement, with police appearing late at night at their homes for no reason. One offender — whose crimes were committed in the 1980s — was warned to stay away from trick-or-treaters on Halloween in 2010 or 2011 when he said he had done nothing to warrant the admonishment.
After the 6th Circuit decision, the Prosecuting Attorneys Coordinating Council — an independent group under the state Attorney General’s Office — sent a letter to prosecutors saying that enforcement of the 2006 and 2011 changes “should be made with care and independent examination.” But as U.S. District Judge Mark Goldsmith noted in a decision in May 2017 — a decision in favor of that clinical director in Royal Oak — “at bottom, the memorandum functions as a ‘yellow light’ to prosecuting authorities, when only a ‘red light’ will do.”
In a decision last November involving William Sim Spencer of Thompsonville against the Benzie County prosecutor in northwest Michigan, a state Court of Appeals panel ruled likewise against his prosecution for violating rules for tier 3 offenders, finding that “the harm to (Spencer) is not merely the instant criminal prosecution (for potentially violating the 2006 and 2011 rules), but the danger of arrest and prosecution at a future time or place.”
“In other words, (he) must adhere to a substantial limitation on his freedom based upon statutory provisions that do not apply to him, and live under the specter of arrest and prosecution for a 15-year offense should he fail to do so. That is an ongoing harm and is irreparable,” the court said.
Last year, on Nov. 20, more than a dozen cases brought in the Michigan Court of Claims, all challenging retroactive application of the registry law, were closed, the court finding for the registrants, noting the Supreme Court’s declining to hear a challenge to the 6th Circuit’s ruling.
And all of those cases cost money: In one case in which Oakland County didn’t even bring a prosecution — the case involving the clinical director — it still paid a settlement to her to end the case and its involvement, agreeing not to prosecute her retroactively.
Meanwhile, the State Police won’t talk about it, citing litigation. It has sent circulars out to local police, saying officers could face civil liability for any retroactive application of the laws. But it’s not within its power to scrub the registry, or move people off it, or order law enforcement not to arrest people, lacking a judge specifically telling them to do so or the Legislature agreeing to rewrite the law.
And there is nothing saying police can’t still charge people they perceive as violators.
In Oakland County, Chief Assistant Prosecutor Paul Walton said police still bring in some cases that are questionable under the courts’ rulings, but the county — after reviewing each one carefully — doesn’t prosecute.
“People think we’re in charge of the SORA (the Sex Offender Registry Act), that we’re in charge of the registry. We’re not in charge of the registry. We can just review the charges as they’re brought to us,” Walton said. “I wish the state would come out and clarify the position of the State Police because I don’t know what it is. All I can tell you is, when (charges are) presented to our office, we review each case individually.”
Do offenders still pose a risk?
Meanwhile, it is far from clear just how effective sex offender registries are at reducing sex offenses: In the ACLU case that led to the 6th Circuit’s decision, experts testified that while some sex offenders pose a significant risk, most do not — nor do most commit sex offenses again after their convictions.
As one expert, Janet Fay-Dumaine, a psychologist at Michigan’s Center for Forensic Psychiatry, put it in that case, “It’s extremely contrary to our cultural assumptions. … Yes, there is a group of sex offenders that are at high risk of recidivating, but that’s a very small number of sex offenders. Most sex offenders do not.”
As cases like that engulfing Michigan State University and USA Gymnastics involving former sports doctor Larry Nassar seem to indicate, sex offenses are often about opportunity, involving not a stranger but someone close to the survivor.
Several years ago, the Justice Department reported that only about 5% of sex offenders were re-arrested for another sex crime within three years of their release — and that the percentage went down from there as former offenders got older. In a 2015 assessment of adult sex offender management, the Justice Department said when it comes to sex offender registration and notification and the impact on rates of sex crimes, the evidence is “mixed … with several studies showing no change.”
And while studies have found that law enforcement sees value in the registries in terms of knowing the location of past offenders and sharing information with other police, in a 2016 study published in Criminal Justice Policy Review, even they raised concerns, with a majority surveyed expressing concerns that registries could create “a false sense of security.” Nearly three-quarters of those surveyed also said challenges related to transience and homelessness among offenders potentially caused by residence restrictions like Michigan’s — which are not part of federal law — were a concern.
“People who have never been on the registry, that’s who commits the crimes,” said Sandy Rozek, communications director for the National Association for Rational Sexual Offense Laws (NARSOL), an organization that argues in favor of limiting access to sex offender information to police and the length of time a registrant must remain on the list, as well as other reforms to laws that have sprung up in recent decades, believing they do more harm than good. “We’re spending millions watching and monitoring, putting restrictions on this massive group of people.”
According to the Michigan ACLU, state taxpayers pay more than $1 million a year to maintain the sex offender registration database. And presumably much more — at the state and local levels — to review potential violations and to fight lawsuits over a principle already decided by federal and state courts.
Said Miriam Aukerman, senior staff attorney for the ACLU in Michigan, “The state, despite a clear ruling that it is unconstitutional to apply these provisions retroactively, continues to apply them retroactively to thousands of people.”
And it leaves many not knowing what to do.
Carrick, in Montcalm County, said he has had officers come to his home, “just to make sure I’m living there.” From time to time, he has had to take a quick job close to a school, knowing it will only be for a day or two, hoping he won’t get stopped, knowing he has to work.
Sometimes he wonders if it’s worth the effort.
“I watch my p’s and q’s,” he said. But he added, sometimes, he thinks, “I’d rather go back (to prison). I’m tired of dealing with the stress.”
From the Detroit Free Press