By L.L. Brasier, Detroit Free Press
Michigan’s Sex Offender Registry law is so vague that parts of it are unconstitutional, including the requirement that offenders stay at least 1,000 feet from schools, a federal judge has ruled.
U.S. District Judge Robert Cleland, in a 72-page ruling, struck down several reporting requirements of the 1994 law, which has been amended several times by state lawmakers to make requirements stricter.
Regarding the 1,000-foot school safety zone, he said offenders are left to guess where the zones were and are not provided with enough information from the state to abide by the restriction.
And he struck down several other requirements, including a mandate that offenders report in person new e-mail and instant messaging addresses and notify authorities of all telephone numbers “routinely used by the individual.”
The vagueness of the law “leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered,” Cleland wrote in his ruling.
The lawsuit was filed in 2012 by the American Civil Liberties Union of Michigan against Gov. Rick Snyder and Michigan State Police Director Kriste Etue, on behalf of six Michigan residents who are convicted sex offenders required to register. The University of Michigan Clinical Law Program also participated.
The residents argued that the law, and its many amendments, are impossible to follow. Regarding the 1,000-foot rule, they said, “the zones are not physically marked and registrants are not provided with maps demarking the boundaries.”
“Is it point to point or property line to property line … as the crow files or as people actually travel?” the suit asked.
Some of those suing are parents and grandparents and say the rule, including the restriction that they not loiter near a school, prevents them from participating in their children’s education. They are afraid to attend parent-teacher conferences or school plays.
The judge found that part of the law unclear as well, noting that the law’s “present definition of ‘loiter’ is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether plaintiffs are, in fact, prohibited from engaging in the conduct from which plaintiffs have refrained.”
Law enforcement officials were reviewing the order.
“We are aware of the ruling,” said Shanon Banner, a spokesperson for the Michigan State Police, in an e-mail. “We have reviewed it with the Attorney General’s office to determine its immediate impact on our practices, and we are currently working to make necessary changes to come into compliance. We will also be working with the Legislature to clarify portions of the Act that need addressing.”
Andrea Bitely, spokeswoman for Michigan Attorney General Bill Schuette, said the office was also studying the ruling.
It’s not clear what, if any, immediate impact the judge’s ruling will have on the 41,600 Michigan residents on the state’s registry.
The judge limited some of his rulings, including the school safety zone, to the specific plaintiffs in the lawsuit, although as a practical matter others on the registry could point to the ruling for relief from the safety zone requirement.
ACLU attorney Miriam Aukerman, who worked on the case, said the judge was sending a strong message that the law was not working properly and the Legislature needs to consider an overhaul. Most have to follow dozens of restrictions regarding reporting and where they live and work.
“The law is so confusing that even a well-intentioned registrant can’t follow it,” Aukerman said. “We found that even the police don’t know what the law is.”
Many of those on the registry are not considered dangerous. One of the plaintiffs in the suit, identified only as John Doe #4, was 23 when he met a woman at an adult nightclub in 2006. She was under 16 and became pregnant. He was prosecuted and placed on the offender registry. He completed probation, and now the couple have two children.
In another case, from 1996, a man was 18 when he had sex with his girlfriend, age 14. He was prosecuted and sentenced under the state’s Holmes Youthful Training Act, which seals his file and eventually clears his record. He completed probation and has committed no new crimes, but still is required to register as a sex offender.
“We need to look at this as a public safety issue,” Aukerman said. “This law is not keeping us safe. We need to take a hard look at the sex offender registry and base it on facts, not fear. Are these the people we want to monitor? We should do what other states have done, by identifying the offenders who are dangerous, rather than take this broad brush approach.”
In addition to the safety zones, the judge also ruled as unconstitutional the requirement that offenders report the license plate, registration and description of any motor vehicle, aircraft or vessel “regularly operated by the individual,” and a requirement that offenders report “all electronic mail addresses routinely used by the individual.”