The XX Factor

Appeals Court Issues Scathing Ruling Against Michigan Sex Offender Penalties

A map of “safety school zones” in Grand Rapids, Michigan. Sex offenders can neither live nor work within these zones.

U.S. Court of Appeals for the 6th Circuit

Like so many states, Michigan is addicted to punishing sex offenders—not just once, but over and over again, through a series of measures designed to shame, stigmatize, and ostracize even those offenders who have been fully rehabilitated. On Thursday, the application of these laws to a large group of offenders was invalidated by the U.S. Court of Appeals for the 6th Circuit in a vitally important ruling that suggests the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.

Over the last decade, Michigan has amended its sex offender registry law to ensure that sex offenders are continually penalized for years after they complete their sentences. Offenders are required to inform law enforcement in person when they wish to move, change jobs, enroll or unenroll as a student, change their name, register a new email address or “internet identifier,” travel for longer than a week, or buy or sell a car. They are also barred from living, working, or “loitering” in a “school safety zone.” (These “zones” sprawl across most cities, driving sex offenders to the fringes of society.) Their names, addresses, photographs, and biometric data are provided to the public in an easily searchable database. Some purportedly “serious” offenders must update law enforcement (again in person) with the most minute updates of their life every three months.

These laws present serious constitutional problems under the Due Process Clause. But even more obviously, they run afoul of the Constitution’s Ex Post Facto Clause, which prevents the government from enacting retroactive punishments. The aforementioned requirements were only passed in 2006 and 2011, yet they are purported to apply to all sex offenders, even those who committed their crime before the laws were enacted. A group of offenders challenged the constitutionality of this retroactive penalization, arguing that, by burdening them with these new requirements, Michigan had violated the Ex Post Facto Clause.

In a unanimous ruling, a panel of judges for the 6th Circuit emphatically agreed. The Supreme Court has held that a law contravenes the Ex Post Facto clause when it is a “criminal punishment,” not a “civil regulation.” A 2003 ruling also found that retroactive registration rules are civil and thus constitutional. But, the 6th Circuit explained, Michigan’s laws go far beyond that, constituting “a byzantine code governing in minute detail the lives of the state’s sex offenders.” The Michigan requirements instead “resemble traditional shaming punishments,” publicly ascribing to offenders an “estimation of present dangerousness without providing for any individualized assessment” or opportunity for appeal. Michigan’s rules also have “much in common with banishment,” essentially exiling sex offenders from urban centers.

Because Michigan’s laws are “onerous” and “retributive,” two hallmarks of a criminal penalty, the court invalidated their application to any offender convicted before their enactment. But the court also went further, casting doubt on their constitutional legitimacy as applied to any offender. “The punitive effects of these blanket restrictions,” the court explained, “far exceed even a generous assessment of their salutary effects.” They are “supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe.” Indeed, empirical studies have demonstrated that sex offender registration laws have, “at best, no impact on recidivism”:

In fact, one statistical analysis in the record concluded that laws [like Michigan’s] actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities. Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates.

Michigan also labels a broad array of criminals “sex offenders,” including those convicted of statutory rape for having consensual sex as a teenager. This draconian regime, the court suggested, is both excessive and irrational, and quite possibly a transgression of offenders’ Due Process rights. As the court explained in one scathing passage, the Michigan system:

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. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Because the plaintiffs in this case won easily under an Ex Post Facto challenge, however, the court left these broader constitutional questions for another day. Still, the ruling should give other offenders a great deal of hope that the judiciary is finally pushing back against these unfair, unjust, and ineffective laws.