Michigan: Court goofed and should reopen sex offender case

9-14-16 Michigan:

LANSING, Mich. (AP) — The attorney general's office is asking a federal appeals court to reopen a dispute over Michigan's sex-offender registry.

The court recently said Michigan is illegally treating many sex offenders as "moral lepers" by putting additional restrictions on them long after their convictions. But in a new filing, the state says the court overlooked a key decision from 2007 that should have led to a different result.

Before saying the 2007 TN case would change the court's decision, one has to compare the 2007 TN registry requirements with the MI amendments (made in 2006 and harsher ones in 2011).

It's a case about electronic monitoring of sex offenders in Tennessee, a retroactive policy that was upheld by the court. The state admits that its lawyers also overlooked that decision.

In 2006, Michigan lawmakers restricted people from being near schools. More restrictions followed.

Miriam Aukerman of the American Civil Liberties Union says the appeals court rightly found Michigan's registry is "ineffective and unconstitutional." ..Source.. by Staff

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Michigan asks federal court to revise opinion on sex offender registry rules

The state of Michigan wants a federal appeals court to take a second look at an opinion on the state's sex offender registry.

The U.S. Court of Appeals issued an opinion Aug. 25 saying Michigan's sex offender registry rules cannot be applied retroactively to thousands of sex offenders. The state Attorney General and Solicitor General offices filed a Sept. 8 request with the federal appeals court for a second opinion.

The original opinion said it's unconstitutional to impose new restrictions on people convicted before the state's registry law was updated in 2006 and in 2011.

Michigan began prohibiting registrants from living, working or loitering within 1,000 feet of a school in 2006. Five years later, lawmakers added requirements that offenders be divided into three tiers based on the seriousness of their crimes.

"The State seeks a panel rehearing to correct an error of law and to bring to this Court's attention a prior published and on-point opinion by this Court," the Sept. 8 filing states, claiming the court's opinion is in conflict with the 2007 case, Doe v. Bredesen.

The court held in that case that "continuous GPS monitoring and retroactive reclassification of an offender as a 'violent sexual offender' were not punitive and thus did not violate the Ex Post Facto Clause, using reasoning that is in strong tension with and in places contradicts this Court's August 25 opinion," the Sept. 8 filing reads.

A court battle on the issue began in 2015 in Michigan when the Michigan American Civil Liberties Union filed a lawsuit against Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue in U.S. District Court in the Eastern District of Michigan.

The suit lists plaintiffs "John Does #1-5" and "Mary Doe" and claims the Sex Offender Registry rules had a significant impact on them.

U.S. District Court Judge Robert Cleland ruled last year that the changes made in 2006 and 2011 could be imposed retroactively. He ruled other portions of the law unconstitutional, but the 6th Circuit didn't rule on those provisions.

The August opinion sided with the ACLU.

"(Sex Offender Registry Act) brands registrants as moral lepers solely on the basis of a prior conviction," the panel's August opinion reads.

"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."

For example, the August opinion states, some of the plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work, and the rules keep them from watching their children or grandchildren participate in school sports or other events, and from visiting playgrounds with them for fear of loitering.

The plaintiffs in the case, all of whom must register for life and some of whose offenses are decades old, include several convicted as teens of consensual sex with younger teens, the ACLU said.

"As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice," the Aug. 25 opinion reads.

The case was argued in the 6th U.S. Circuit Court of Appeals in January and the August ruling reversed that of the lower court.

Miriam Aukerman, an attorney for the ACLU of Michigan, described the court's August ruling as confirmation that the state's registry system is a failure.

"It turns out that an ineffective registry and an unconstitutional registry are the same thing," she said. "Both squander resources on those who aren't dangerous."

According to the ACLU, Michigan has more than 42,000 registrants, making it the fourth largest registry in the country, with the second highest registration rate per capita of any state. by Brad Devereaux | bdeverea@mlive.com