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ACLU files new complaint over Michigan's sex offender registry, says 2021 changes not enough

The Detroit News - 2/2/2022

Feb. 3—Michigan's sex offender registry is being challenged in federal court again, nearly a year after the Legislature and Gov. Gretchen Whitmer approved court-ordered changes they hoped would bring the law in line with the state and U.S. constitutions.

The changes made by the Legislature failed to address "core constitutional defects" in the law that imposed "extensive burdens" on all offenders without assessing their individual risk, the lawsuit filed by the American Civil Liberties Union of Michigan said.

The new law, the filing said, "continues to treat all registrants — regardless of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities — as if they pose a high and irremediable risk to public safety.

"...For the vast majority of registrants, there is no path off the registry; the only way to come off the registry is to die," the filing said.

The lawsuit filed Wednesday in Michigan's federal Eastern District court by several Michigan sex offenders names Whitmer and Michigan State Police Col. Joseph Gasper as defendants.

The suit's allegations include arguments that elements of the registry are being unconstitutionally applied retroactively, that reporting requirements compel speech in violation of the First Amendment, and that the system lacks individual risk assessments in violation of due process and equal protection.

A decade in court

The filing follows roughly a decade of litigation over Michigan's registry that has resulted in many provisions of the law being overturned, including student safety zone bans and "onerous" in-person reporting requirements of personal information to police.

Decisions overturning parts of the law — especially changes made in 2006 and 2011 — have stemmed from judges in the Michigan Supreme Court, U.S. District Court and the Sixth Circuit Court of Appeals.

In 2015, Detroit U.S. District Judge Robert Cleland said portions of the law were unconstitutional because they violated due process and the First Amendment. The U.S. Sixth Circuit Court of Appeals likewise ruled that school zone bans and reporting requirements enacted after the initial law was passed amounted to unconstitutionally retroactive penalties and resembled "the ancient punishment of banishment."

In 2019, when the rulings led to no changes in Michigan law, Cleland ordered the Legislature to change the law or lose it altogether since the state essentially would be maintaining a legally unenforceable law.

Enforcement of several elements of the law were suspended altogether during the pandemic and, during the 2020 lame-duck session, the Michigan Legislature passed changes taking effect in March 2021 that largely brought the law in line with the federal Sex Offender Registration and Notification Act.

The 2021 law eliminated school safety zone bans and certain appearance requirements mandating offenders show up in person to make immediate changes to email addresses, street addresses or vehicle information.

The law also required offenders to be removed from the registry if their crime was expunged or if the offender was sentenced under the Holmes Youthful Trainee Act.

In August, Cleland issued an amended final judgment in the lawsuits over the 2006 and 2011 changes, but noted the complaint he heard did not involve the 2021 law and so he could not decide its merits.

2021 changes not enough

Several of the sex offenders who filed Wednesday's suit were also involved in the prior litigation and argued the Legislature's "tinkering" did little to address the issues flagged in the law.

Lawmakers ignored the advice of a workgroup when they developed the 2021 law and left in the law portions of the 2011 changes found to be unconstitutional — including some reporting requirements and lifetime registration mandates, Wednesday's lawsuit said.

"Broad conviction-based registries like Michigan's are completely ineffective at reducing recidivism, and indeed may increase offending by sabotaging the ability of people to obtain housing, employment and family support that are critically important for them to lead productive lives," the lawsuit said.

The realities of an online sex offender registry easily accessible to the public have changed in the last two decades, the lawsuit said, exposing past offenders at every turn to employment, housing and education consequences as well as vigilantism.

"The consequences of digital labeling through the format of the Michigan registry and the attendant dissemination of registry information on private web-sites ultimately undermines public safety by making pariahs of registrants, effectively cutting them out of social, institutional, and technological life," the suit said.

eleblanc@detroitnews.com

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