Federal Court Rules Once Again That Michigan’s Sex Offenders Registration Act Is Unconstitutional

ACLU calls on legislature to fix registry law to end constitutional violations.

FOR IMMEDIATE RELEASE

DETROIT – In the latest in a long string of judicial decisions holding Michigan’s Sex Offenders Registration Act (SORA) unconstitutional, U.S. District Judge Mark A. Goldsmith struck down significant portions of the law in a decision released late last week. The court’s decision in the class action lawsuit, Does III v. Whitmer, will affect tens of thousands of people and follows two recent rulings by the Michigan Supreme Court, as well as numerous federal court decisions dating back to 2013, finding constitutional problems with Michigan’s registry.

In a 115-page opinion the court upheld some aspects of the registry, but – as in the prior decisions – again found multiple constitutional violations including:

• The registration of people who did not commit sex offenses;
• The retroactive extension of registration terms to life;
• Harsher treatment of people with non-Michigan convictions; and
• Violations of registrants’ First Amendment rights.

“This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers,” said Miriam Aukerman, ACLU of Michigan senior staff attorney, who has been leading the ACLU’s registry litigation for more than a decade. “Michiganders and their families deserve a system that works by prioritizing public safety and prevention, not a failed, counter-productive approach that makes all of us less safe because it sabotages the ability of people with past convictions to find housing, employment and family support, which are key to successful reentry.”

The class action lawsuit brought eleven constitutional challenges on behalf of the more than 45,000 people on Michigan’s registry.

The court ruled in favor of the plaintiffs on six claims, including rulings that:

• Retroactively extending registration terms from 25 years to life violates the Constitution.
• In-person reporting requirements imposed in 2011 cannot be applied to pre-2011 registrants.
• People who were not convicted of a sexual offense cannot be subjected to SORA without a judicial hearing.
• Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with Michigan convictions. Such individuals must receive a judicial hearing to determine their registration requirements.
• SORA’s requirements to report internet identifiers like email and social media accounts violate registrants’ First Amendment rights.
• Forcing registrants to attest that they understand SORA, even if they do not, is unconstitutional compelled speech.

Under the court’s decision:

• About 17,000 people will be removed after they complete 25 years on the registry without another registrable offense.
• More than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.
• A judicial hearing will be required if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses.
• The in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people.

The court ruled against the plaintiffs on three claims involving individualized review, opportunities to petition for removal, and reporting requirements. The court also found that one claim was moot, and another might require additional briefing.

Under SORA, the vast majority of Michigan registrants must register for life without any opportunity for a judge to consider whether registration is appropriate. Experts in the case explained that lifetime registration serves no purpose because recidivism rates go down dramatically the longer a person lives offense-free in the community.

People who have had to register for life without any individualized review include many of the plaintiffs in the case, including:

• A man who had a relationship with a 15-year-old girl, who had used a fake ID to get into an over-18 club where they met. They are now married and have three children.
• A woman, who as a 19-year-old homeless and addicted teen, had sex with a 14-year-old boy. She went on to overcome her addiction, earned a master’s in counseling, became the clinical director of a drug treatment facility, and now has a private clinical practice.
• A disabled man, born with Fetal Alcohol Syndrome, who has the developmental age of a 9- or 10-year-old. He was convicted three decades ago of sexually touching his nephew, who is now an adult and supports his uncle’s removal from the registry.

“After more than a decade of litigation and court decision after court decision finding SORA unconstitutional, it is time to focus our reform efforts on what works, not cling to an unconstitutional system that doesn’t,” added Aukerman. “Our goal must be to end sexual offending. And if we want to achieve that goal, we need to invest in prevention, support survivors and ensure that people with past convictions can reenter society successfully.”

In 2018-2019, a work group of stakeholders—which included prosecutors, the Michigan State Police, and advocates for survivors—met for about 18 months to develop legislation to address the constitutional flaws with SORA identified by courts and revise the law to reflect evidence-based practices. The group looked at shorter registration terms, individual review, paths off the registry for rehabilitated people, reduction in the number of registrable offenses, simplification of reporting, ending registration of children, and provisions for people with disabilities. Instead of adopting those proposals, in 2020 the legislature passed a law that largely mirrored the prior unconstitutional law. Friday’s decision held that the revised 2020 law is likewise unconstitutional in multiple ways.

In addition to attorneys from the ACLU, the plaintiffs are represented by retired University of Michigan law professor Paul Reingold and the law firm of Loevy & Loevy.

For additional information see:

Michigan’s Registry: Know the Facts

Background on the Does III v. Whitmer litigation

Does III v. Whitmer decision

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