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Michigan's sex offender law is unfair and probably unconstitutional

Aug 26, 2016

When I was three years old, a little girl in my neighborhood was snatched off the street, raped and murdered. Her body was found a week later in a garbage dump, and the crime never solved.

This traumatized my mother, who instilled in me a lifelong fear of child molesters. It took about half a century before I stopped being frightened whenever a car pulled up next to me.

Sex crimes, especially violent ones, are indeed among the most traumatic ones imaginable.

But nothing legally or morally justifies taking away anyone’s constitutional rights, publicly shaming them and their families forever, and making their rehabilitation impossible.

But that’s precisely what Michigan has done with its notorious sex offender registry, which now includes nearly 43,000 people.

Politically, there's no downside to beating up on sex offenders, so our Legislature keeps adding provisions.

This is not, by the way, merely a list of paroled child molesters or serial rapists. It includes a man who had sex with a girl who was only 16 and was apparently pretending to be older.

The couple is married now – but he, and their home, is still on the registry. So are thousands of other long-ago and sometimes fairly petty offenders. Politically, there’s no downside to beating up on sex offenders, so our Legislature keeps adding provisions.

Ten years ago, they made it unlawful for anyone on the list to live, work, or even be within a thousand feet of a school. Five years ago, they required that everyone on the list be placed into one of three tiers based on the seriousness of their offenses.

All this totally ignores whether an individual has been rehabilitated. It is meant to be a lifelong stigma.

Well, some justice finally happened yesterday. A three-judge panel of the U.S. Sixth Circuit Court of Appeals unanimously ruled that the restrictions dividing people into tiers and preventing them from being near a school can’t be applied retroactively.

That’s because the U.S. Constitution has always rightly prohibited so-called ex post facto laws. In other words, you can’t make a law and punish someone for having done something in the past that was then perfectly legal.

Judge Alice Batchelder ... hinted that much more of the registry may also be unconstitutional ...

Judge Alice Batchelder, who wrote the majority opinion, hinted that much more of the registry may also be unconstitutional, but indicated the judges couldn’t rule on those portions because they weren’t challenged in this particular lawsuit.

Judge Batchelder, who was appointed by the first President Bush, was scathing in her criticism of the registry law, which, she noted, “brands registrants as moral lepers solely on the basis of a prior conviction,” and consigns them “to years, if not a lifetime, of existence on the margins of society.”

Essentially, she said this was a Byzantine system that resembles the medieval punishments of banning and shaming.

The judge is right, and her ruling overdue.

If Michigan lawmakers really wanted to strike a blow for human rights, they’d come back in the lame-duck session and repeal the entire sex offender list. Or replace it with a smaller list of only the most potentially dangerous and violent offenders.

It’s often said we need to lock up only those we are afraid of, not those we are mad at. That’s a matter of simple justice, and may apply even more to those who have served their sentences, and who we would, nevertheless, publicly stigmatize.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.