District Court Judge Robert Cleland for the Eastern District of Michigan recently issued his Doe v. Snyder opinion finding the Michigan Sex Offender Registry Act (SORA) unconstitutional. It wasn’t because the registry was an unjust punishment or was ruining registrants lives with all of its requirements. It was because the law was too vague – registrants and even police didn’t know what they had to do under the law.
SORA prohibits registrants from living, working or “loitering” within 1,000 feet of school property. But is that measured from the front door or the fence post? And what does loitering mean, exactly?
According to Cleland, registrants cannot constitutionally be punished if they aren’t knowingly violating the law. It is up to law enforcement, probation officers, and the courts to make clear what the SORA requirements are. Without clear definitions of “loitering” and “school zones,” the law can’t be enforced.
Internet Reporting Requirements
SORA also requires registrants to make in-person reports of any vehicles, phone numbers, and email addresses that they “regularly” or “routinely” use. Again, police officers didn’t now just how frequently the things had to be used before they had to be reported.
Because these reports must be made in person, the judge also determined that SORA violated the registrants’ First Amendment freedom of speech. The judge encouraged the legislature to reexamine whether in person reporting could be waived in case of injury, illness, or emergency. He said:
“SORA was not enacted as a trap for individuals who have committed sex offenses in the past (and who already have served their sentences). Rather, the goal is public safety, and public safety would only be enhanced by the government ensuring that registrants are aware of their obligations.”
The judge also questioned, but didn’t decide whether SORA violated registrants’ parental rights. Was the government allowed to cut off a parent’s ability to interact with his or her child’s school? He did not decide the question, but sent it back to the legislature along with the School Zone exclusions.
What Needs to Change
The ACLU of Michigan (which brought the case) is encouraging legislators to:
- Re-examine the cost and need for the registry;
- Allow for individualized threat assessments to decide who should go on the registry;
- Repeal the school zone exclusions;
- Repeal the loitering exclusions;
- Add that registrants must “knowingly” violate SORA to be punished; and
- Eliminate the in person reporting requirement.
For registrants, SORA can feel like a life sentence. This new opinion gives legislators another chance to balance privacy and public safety, and maybe take some of the burden off of the nonviolent people who made bad choices in their past.
Lisa J. Schmidt is a criminal attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents defendants charged with sexual offenses. If you or someone you know has been charged with a sexual crime, contact Schmidt Law Services today for a free consultation.