Michigan’s SORA is punishment, says MI Attorney General in amicus briefs
February 8, 2019
LANSING, MI – Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court today in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.
“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel. “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”
Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families. Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.
“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”
Amendments to the Act in 2006 and 2011 – especially geographic exclusionary zones and in-person reporting requirements –are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively. A number of state supreme courts have struck down their state registry laws on similar grounds.
“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”
SOURCE: LANSING, MI
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Guy Hamilton Smith: MI AG Dana Nessel “Argues the truth about SORA”
By 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.