Still Punitive After All These Years

It was 2016 when the 6th Circuit uttered the magic word that was never to be said. Sex offender registration was “punitive.” To be sure, this came as no epiphany to anyone remotely familiar with SORA, whether because they were on it, dealt with it or read anything modestly thoughtful about it. But that a federal circuit court said it? That was huge.

So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. (Emphasis added.)

Yet, two years after this decision, holding Michigan’s retroactive inclusion on the registry an unconstitutional ex post facto law, the problem is solved? Not quite.

“What is very clear is that Michigan cannot enforce the current (Sex Offender Registry) statute,” says Miriam Aukerman, a senior staff attorney with the ACLU of Michigan. “It was found unconstitutional, and the practical reality is that the state hasn’t come into compliance with the court’s decision.”

MIchigan, like other states, is suddenly interested in criminal law reforms. That’s nice. But given that it’s already been told that its sex offender registry is punitive, is unconstitutional, one would think that would be on the reform agenda. They have to, yet haven’t yet, “fixed”it, but more importantly, this is the opportunity to scrap this misbegotten notion altogether.

The ACLU argues that sex offender registries are an ineffective approach to protecting the public, and that they divert police attention and resources from monitoring the most serious offenders.

In many cases, those who land on the list for life were convicted decades ago, and remain branded as a sex offender regardless of whether they are an actual threat. Others were teens who were convicted of consensual sex with younger teens.

Michigan’s offender registry is open to the public, and that kind of widespread shaming hampers these individuals from getting jobs and rebuilding their lives. Aukerman says it’s a form of lifetime parole, because those on the registry are required to alert police even when they get a new email address or phone number.

The list of people on the registry runs the gamut of sublime to ridiculous, but goes particularly heavy on ridiculous. Get caught peeing outside? Sex offender. Teens sexting each other? Sex offender. Young love? Don’t even go there.

But even those who people assume to be “serious” problems aren’t what people think, or to be more accurate, fear.

Clearly, the state has an interest in protecting the public from potentially dangerous individuals.

There they are, the words of assumption that so many people accept because it just makes sense to them. “Potentially dangerous individuals”? If they committed a sex offense once, aren’t they likely to do it again? Putting aside the fact of the exceptionally low recidivism rate (Sorry, Justice Kennedy), this “common sense” belief has driven people to blindly accept the premise that these “potentially dangerous individuals” need to be exiled to the netherworld of the registry.

But it’s punitive. Do we put “potentially dangerous individuals” in prison before they do something terrible just to make sure? Some people wouldn’t have much of a problem with that, at least when it comes to their image of the sick perv in the white van offering candy to little girls, but not only is that not the reality of the Sex Offender Registry, but not the reality of sex offenses.

If you want to protect your child from sexual molestation, don’t let Uncle Ernie babysit. The “bad” offense that people think about when it comes to sex offenses are almost invariably committed to relative, people inside the family. The “stranger danger” perception is popular and false. Yet, this is what drives people to believe that the Sex Offender Registry will somehow protect their beloved kids from rape.

What it does is create an underclass of people who did something wrong, even if its either trivial or not remotely close to what you have in your head when it comes to a sex offense, and makes it impossible to move forward and lead productive lives. The burdens of compliance with the registry are so absurd and, in many instances, impossible to comply with that people end up violating them for lack of any alternative. If people who have “paid their debt to society” can’t go forward to leading productive lives, can’t find a lawful place to live, what are they supposed to do with themselves?

Of course Michigan has to address the unconstitutionality of its piling on retroactive demands for people on the Sex Offender Registry, and the court should have shut the damn thing down immediately if they’ve failed to conform to the Constitution. But it’s punitive. Punitive. And it’s a worthless exercise in ignorant assumption that serves no end other than to destroy lives and give people who assume too much and think too little the false comfort of thinking they’ve somehow protect their kids.

No one is saved. Many are harmed. End the sex offender registry. It may have seemed like a good idea at the time, but it wasn’t. We know better now. End it.

Still Punitive After All These Years curated from Simple Justice