Michigan Sex-Offender Law Denied Retroactivity

     (CN) — Michigan’s sex offender registration requirements are so stigmatizing and burdensome that they must be considered an ongoing punishment and cannot be applied retroactively, the Sixth Circuit ruled.
     Michigan’s Sex Offender Registration Act began by establishing a nonpublic registry only accessible by law enforcement.
     Now the SORA registry is available to the world online, providing the public with a list of all registered sex offenders’ names, addresses and photographs.
     The law was amended in 2006 to prohibit sex offenders from living, working or loitering with 1,000 feet of a school, and again in 2011 to require sex offenders to appear in person to immediately update new vehicle information or Internet identifiers, such as a new email address.
     The loitering element of the law was struck down by a federal judge, but that judge upheld the other portions of the law that were the focus on appeal.
     The plaintiffs in the case before the Sixth Circuit — five men and one woman — are low-level sex offenders whose lives are dictated by the retroactive application of the 2006 and 2011 SORA amendments.
     Two of them were 18 and 19 when they had sexual relationships with 14-year-olds. Another man was 23 when he had sex with a girl under 16 that he met at a nightclub restricted to people 18 or older – and the two are now married, according to his lawyer.
     All have children or grandchildren whom they cannot pick up from school, watch play school sports, or accompany to a public park for fear of violating SORA, which can lead to immediate imprisonment.
     They also have great difficulty finding a home and job where they can legally live and work, according to court records.
     The Sixth Circuit panel ruled Thursday that SORA requirements can only be understood as punitive.
     “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,” Judge Alice Batchelder said, writing for the three-judge panel.
     For years, sex offender requirements have been applied retroactively because judges found the requirements were primarily meant to protect society, not to punish the offender.
     The Cincinnati-based appeals court ruled that “retroactive application of SORA’s 2006 and 2011 amendments to plaintiffs is unconstitutional, and it must therefore cease.”
     The Sixth Circuit’s decision will affect the lives of thousands of sex offenders residing in Michigan, as well as the circuit area including Kentucky, Ohio, and Tennessee.
     “While SORA is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, employs geographical restrictions similar to those employed by punitive sun-down laws, and has a number of similarities to parole/probation,” Batchelder said.
     Michigan has the country’s fourth-largest sex offender list, with 42,700 registrants.
     “While many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the ex post facto clause,” Batchelder wrote. “As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.”

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