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  • Kevin Elliott

Sex offender registry questions

If knowledge is power, then it would seem that knowing the names, addresses and other identifying information of some 38,521 state-registered sex ­offenders in Michigan, including more than 1,800 in Oakland County, would help give the public the ability to keep themselves and their children safe. "Certainly it takes resources, but when given a list of convicted sex offenders, it's a great resource for people to know where they are living," said Oakland County Sheriff Michael Bouchard who helped draft Michigan's initial Sex Offender Registry Act established in 1994, as a state senator. Since the law drafted by Bouchard was enacted, the state's sex offender registry has undergone several changes beyond who has access to the database. Based on their offense, offenders must register for 15 years, 25 years or for life. Registrants must provide physical addresses and phone numbers of where they live and work, the vehicles they drive and Internet identifiers, such as e-mail addresses or online identities. Those required to register are also prohibited from living, working or loitering within a "school safety zone," or within 1,000 feet of a school, and must adhere to a list of other requirements. "I knew when we wrote it there would be constant monitoring of the system to make it more effective and productive for the public because information is power," Bouchard said. "If you have a convicted pedophile on your block, the public has a right to know that, the same way they should know if there's a toxic waste dump at a playground." Bouchard said the registry empowers the public, and has even helped law enforcement agencies locate missing children. However, a growing number of scholarly researchers, attorneys and public officials, as well as a federal court ruling earlier this year, are spurring changes to the state's registry. Critics of Michigan's sex offender registry law say it gives the public a false sense of safety; forces people to register who logically shouldn't be required; does little to reduce rates of re-offense, or recidivism; and puts the general public in more danger. Further, a federal court in March of this year found that some parts of the law are unconstitutional, and are so complicated that it is impossible for some offenders to comply. "We have the fourth largest registry in the country, and that is because we have a lot of people that don't belong there," said Miriam Aukerman, an attorney for the American Civil Liberties Union of Michigan. Aukerman cited an example of one man on the registry who has two children with his victim, whom he has since married. However, she said the couple was unable to live together because of the residency restriction placed on Michigan's registered sex offenders. "One individual (victim) is married to the individual," Aukerman said. "She testified that she wasn't so much a victim of him, but a victim of the registry. She snuck into an adults-only club and had sex. They had a child, and now they are unable to live together because of the exclusion zones." The couple's situation was one of six people represented by Aukerman on behalf of the ACLU in a federal lawsuit filed in 2012 that challenged Michigan's Sex Offenders Registration Act in United States District Court for the Eastern District of Michigan Southern Division. Aukerman said the husband, identified in court documents as "John Doe #4," was 23-years-old in the summer of 2005 when he met the victim at an adults-only nightclub. The girl, then 15-years-old, had used a fake ID to enter the club. The couple met and had sex. It wasn't until the girl became pregnant and he was arrested that he learned of her actual age. In 2006, the man pleaded guilty to attempted criminal sexual conduct. Under the terms of that plea agreement, the case was to be dismissed if the baby's DNA didn't match his, as it was revealed that she had had other sexual partners, and it was unclear with whom she had become pregnant. When it turned out that Mr. Doe #4 had fathered the child, the case went forward. He served five years probation, and completed sex offender counseling. At the time of his conviction, he was required to register on the state's sex offender registry for 25 years. A change in the law in 2011 retroactively re-classified him as a Tier III offender, requiring him to register for the rest of his life. Today, "Doe #4" and the victim are married and have two children together. Under the state's sex offender registry laws, the father can't live or work within 1,000 feet of a school. The lawsuit states that because a school is at the end of the family's street, the father can't legally live at the home with his wife and children. "When people think about the registry, they don't conceptualize that," Aukerman said. "They don't conceptualize a dad who is married to the mother of his children. This is a family that can't be together because of the registry." Looking to the original version of the state's sex offender registry act, Bouchard said he anticipated the law would need to be looked at in the future. "I expected after I wrote the original act that it would take a constant process to stay on top of it," Bouchard said. "When originally written, it was just available to local police departments. As technology evolved, it made that information more accessible." In its original form, the act established a database that contains the names, addresses and listed offense information of all people in Michigan convicted of certain sexual offenses. The complete database was, and still remains, only accessible to law enforcement officials. Michigan's registry was created in response to the passage of the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994. That act required states to implement sex offender and crimes against children registries. Under the original federal law, all states must verify the addresses of sex offenders annually for at least 10 years, and those classified as a "sexually violent predator" must register for life. The law allowed states the discretion to share registration information with the public, but wasn't required. Michigan's original law set registration requirements of 25 years, and a lifetime registration for second or subsequent offenses. Information in the database, at the time, was only available to law enforcement and was exempt from Freedom of Information Act requests. In 1996, the names on the registry were made available to the public via local law enforcement agencies. The public sex offender registry ( was made available on the Internet in 1999, when at the same time, offenses requiring registration were expanded. In 2002, the law was changed to require registrants to provide information to local law enforcement if they were working, volunteering or attending an institution of higher learning. Several changes to the the state's registry law were made in 2004 and 2005, including the requirement of photographs of each registrant, as well as the creation of "student safety zones," which prohibits convicted offenders from working or loitering or living within 1,000 feet or less from school property. In 2011, the state's registry law was again updated to conform with requirements of the federal Adam Walsh Child Protection and Safety Act of 2006. Changes that year also allowed for some offenders to be removed from the registry, including the exclusion of some so-called Romeo and Juliet and juvenile offenders, or those having consensual sex with partners between the ages of 13 and 16, provided the offender wasn't more than four years older than the victim. However, it is still illegal for anyone under 16 to have sex in Michigan. The 2011 changes also implemented a three-tier offender system, where offenders are classified into tiers based on the severity of their offense, and required to register for 15 years, 25 years, or for life. Prison and jail time aren't included when calculating the end registration date. The changes were tied to federal mandates requiring states to make the changes or risk losing federal funds for law enforcement. After registering, offenders must report to the law enforcement agency where they live to verify their address. Tier I offenders must verify once a year; Tier II offenders verify twice a year; and Tier III offenders register three times per year. According to the Michigan State Police, individuals can be found out of compliance if they: fail to register; fail to change their address when they move; fail to verify their address; fail to provide or update campus information; fail to update vehicle information; fail to provide or update employment information; fail to provide a name change; fail to report e-mail addresses or Internet identifiers; fail to maintain a valid Michigan driver's license or personal identification card; reside, work or loiter within 1,000 feet of a school. Those who don't follow the rules of the registry can face anywhere from a misdemeanor to a 10-year felony. For instance, the penalty for failing to verify an address is a misdemeanor, as is failure to pay for the registration fee, sign a registration card, registration notification, or verification form. All other violations carry a graduated penalty, ranging from a four-year felony to a 10-year felony. The state sex offender registry law allows an arrest warrant to be authorized by a prosecutor for a non-compliant offender. After a warrant is entered into the Law Enforcement Information Network (LEIN), the offender can be apprehended during a traffic stop or any other contact with law enforcement. In addition, law enforcement agencies may conduct periodic offender sweeps, during which offenders' addresses are confirmed, and non-complaint offenders are actively sought. Enforcing the rules and checking up on registrants can take resources from law enforcement agencies, some of which conduct community checks to see whether offenders are providing accurate information. However, those checks aren't required under the law. Bouchard said sheriff's substations in the county do check on offenders that may be non-complaint when addresses are in question. "It's not required for agencies to go out and physically check – that would be unconstitutional under the Headlee Amendment," Bouchard said. "But we suggested it." Statewide, there are about 30,877 offenders that must verify their address either yearly, semi-annually or quarterly, while some 11,123 incarcerated offenders don't have to verify their information. According to the Michigan State Police, 28,372 offenders were in compliance, while 2,507 offenders failed to comply, following the state's September 2015 verification period. The Michigan State Police Department's Public Sex Offender Registry is constantly being updated by the department's Sex Offender Registry Unit, which receives updated offender information from local law enforcement agencies electronically, by fax and by mail. Department spokeswoman Tiffany Brown said the public registry is updated in real time as the new information is added. "Generally, the unit updates the registry within five business days after receiving a record change," she said. "The information received by the unit typically includes court orders for removals or tier changes." Law enforcement agencies also rely on the public to help identify non-compliant offenders as well. Such was the case with a 29-year-old offender allegedly working within the 1,000 foot restriction of a school in September. Walled Lake police said an off-duty officer was bowling at Langan's All Star Lanes, 257 Ladd Road, on September 27, 2015 when he was informed an employee at the bowling alley was a registered offender in the city, and was non-compliant by working at the location. Police confirmed the complaint on October 1 when the man registered a different work address, and the detective caught the mismatched information. The case was forwarded to the Oakland County Prosecutor's Office. On March 31, 2015, U.S. District Court Robert Cleland issued a ruling on the case filed in 2012 by the ACLU, John Does #1-5 and Mary Doe v Governor Richard Snyder and Col. Kristie Etue of the Michigan State Police Department. In his ruling, Cleland held that ambiguity in the act, combined with the number of and length of the act's provisions, make it difficult for a well-intentioned registrant to understand all of his or her obligations. "SORA (Sex Offender Registry Act) was not enacted as a trap for individuals who have committed sex offenses in the past (and who have already served their sentences)," he stated in his ruling. "Rather, the goal is public safety, and the public safety would only be enhanced by the government ensuring registrants are aware of their obligations." Specifically, the court found that the act's geographic exclusion zones are unconstitutional because registrants have no way to know where these zones are, and even law enforcement doesn't know where these zones are. The court also found the prohibition on "loitering" within those zones is unconstitutional because an ordinary registrant can't know whether his or her conduct is "loitering." Further, the court found that registrants can't be penalized unless they knowingly violate the registry law; and that because the registry law's Internet reporting requirements are vague and because the registrants must report changes in person, the majority of those requirements violate the First Amendment's protection for free speech. The federal court also found that certain reporting requirements pertaining to vehicles, phones or other items "regularly" or "routinely used" are unconstitutional, as neither registrants or law enforcement know exactly how often the item must be used to be reportable. While the court questioned whether geographic exclusion zones and "loitering" bans also violate the parental rights of registrants who have children, it held off on deciding the question because the statute is so vague the court couldn't determine its impact. "We actually had volunteers call police departments and prosecutors to get information, and all of them were different," the ACLU’s Aukerman said. "If the people enforcing the law don't know what the law means and give different information to different people, how can you expect the folks registering to understand this incredibly complicated law?" Bloomfield Hills defense attorney Shannon Smith, who specializes in criminal sexual offense cases, said some portions of the state's sex offender registry law are so confusing that they can't consistently be answered. "One of the major issues with the law is that it is very vague and unclear," she said. "We have calls to my office that we literally can't answer. The law is inconsistently applied. One answer that works in one county may not work in another. It makes it a mess. "Sometimes I call the Michigan State Police, and they say that they don't know what the answer is. The problem is that the law is very unclear, it's difficult to read, and it doesn't take into account every circumstance." Even in some instances where registrants have taken measures to ensure they are following the law, they receive conflicting information from law enforcement agencies. A federal court case recently filed on behalf of a Grand Rapids man claims that a registrant checked with police there whether he could move into a specific address and was told he could, only to be told when registering the address that he would have to move within 30 days. Aukerman said the federal ruling means that Doe #4 will still be required to register on the state sex offender registry, but that he isn't subject to the geographic exclusion zones. The ruling also clarifies and provides relief to other plaintiffs in the case, however, the ruling doesn't have immediate effect for all offenders on the state's registry. "The ruling is limited specifically to that case. It has no binding effect on the state, but it's a persuasive argument," said Paul Walton, chief assistant prosecutor for Oakland County. While Walton said the case doesn't relieve all offenders of their duties under the law, it does provide a persuasive defense for some defendants. Ultimately, he said, prosecutors and state courts are bound by the state's law. "I know both sides of the argument, and there is a lot of pressure to look at the sex offender registry," he said. "Some of the provisions become difficult to enforce. What is 1,000 feet of a school? Where does that start? How is it marked? There are pragmatic issues there." While the court ruling suggests the state must take action to address some issues with the state's sex offender registry, relaxing some of the state's existing requirements could be viewed as a politically risky move where the public is less than sympathetic to the plight of sex offenders on a whole. Since the court ruling, only one bill has been introduced in the state legislature to address the federal court's findings. "I think it's politically risky not to do anything. Right now, the offenders can go back to the school yards," said state Sen. Rick Jones (R-Eaton), who introduced Senate Bill 581, which would amend the state's Sex Offender Registry Act. "I was a law enforcement officer for 30 years, and I have opinions of a sex offender. Whether they are a flasher or a pedophile, I don't think they belong around schools. We've had these laws for 30 years, and I think they are helpful, but a federal judge said it wasn't very clear." The bill, which was introduced on October 27, 2015 would make five key changes to the state's sex offender registry law, including: revising the definition of "loitering," "student safety zone," and "school property"; revise the information that must be reported immediately and in person; revise the prohibition against a sex offender registrant's loitering near a school; revise information that must be included n the law enforcement database of registrations and the publicly available website, which are maintained by the Michigan Department of State Police; and revise provisions dealing with a waiver of initial and annual registration fees for a registrant who is indigent. "We had to redefine 'loitering,'" Jones said. "Also, because of the judge's ruling, we had to deal with sex offenders who are parents. If a sex offender is a parent, and they have a child in school, they can go to a parent teacher conference, drop them off and pick them up at school, or go to an event or something at the school." Under the current act, "loiter" means to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors. Under the bill, "loiter" instead would mean to remain for a period of time, whether or not in a vehicle, with the intent to engage or solicit another person to engage in an act prohibited by a listed offense involving a minor for which registration is required under the act. Also under the bill, a "school safety zone" would mean school property and the area that lies 1,000 feet or less from the property line of a school property. The bill also further clarifies the definition of school property. The bill would also eliminate immediate reporting and notification of e-mail or instant messaging addresses, or other Internet identifiers; or buying or beginning to regularly operate any vehicle, and discounting ownership or operation of the vehicle. However, such information would still be required to be reported. "In my opinion, and those of the great legal minds that helped me, it brings us into compliance with the federal judge's wishes," Jones said. While the bill addresses some of the issues brought up by the federal court, Aukerman with the ACLU said it doesn't address all of the issues with the geographic restrictions placed on registrants. "It addresses a number of problems, but there are a lot still out there in terms of what the court said is unconstitutional, and the larger issue of who needs to be on the list," she said. While court battles are fighting over specifics of the current state sex offender registry law, mounting research and legal experts are calling for a change in determining who should be on the list, and for how long. According to results from several national and state studies, the recidivism rate of sex offenders is lower than criminals convicted of non-sexual related crimes. Further, research has shown that offender-based registries, such as Michigan's, which requires offenders to register based on specific offenses, have a negative effect on recidivism. Dating back to 2003, a study conducted by the federal Bureau of Justice Statistics found that about 5.3 percent of sex offenders released from prison in 1994 were rearrested for another sex crime within three years. The study found that 43 percent of sex offenders were rearrested for any crime, while 68 percent of all offenders in the study were rearrested for any crime. However, sex offenders were about four times more likely than non-sex offenders to be arrested for a sex crime after their discharge from prison, or 5.3 percent of sex offenders versus 1.3 percent of non-sex offenders. Of the almost 9,700 sex offenders released in 1994, nearly 4,300 were identified as child molesters. An estimated 3.3 percent of the child molesters were rearrested for another sex crime against a child within three years. In almost half of child victim cases, the child was the prisoner's own son or daughter or other relative. Attorney Smith said the connection to the victim is one reason why the state's registry tends to provide a false sense of safety. "It happens around Halloween. Everyone looks up all the sex offenders on their streets and says they won't go to those houses. They really need to be worried about family and others who spend a lot of time with their children," she said. "I've never had a case where I've defended someone who lost their mind on Halloween and went out and molested a kid. It's the family member, the day care worker or teacher." J.J. Prescott, a law professor at the University of Michigan and nationally recognized expert on sex offender registry laws, said offense-based registries, such as the registry in Michigan that lists registrants based on their specific offense, don't take into account the actual risk of that individual reoffending. "What we do know, I think, is that we passed these laws without any evidence to indicate that they work. And there are some good reasons to show that they do more harm than good." In a report to the federal court in the John Doe case, Prescott stated that while the threat of becoming subjected to a notification regime – and the shame of collateral consequences that accompany being publicly identified as a sex criminal – had a measurable deterrent effect, i.e., reducing offenses by non-registrants. But, he said, "once we take into account the number of individuals subjected to public notification, we find that the more people a state subjects to notification, the higher the relative frequency of sex offenses in that state. "These results are highly statistically significant. Our estimates indicate that it is very unlikely that these laws are reducing recidivism by registrants, and that it is likely that these laws are actually increasing recidivism." In Michigan specifically, a 2013 study titled "An Evaluation of Sex Offender Residency Restrictions in Michigan and Missouri", stated that research hasn't substantiated a link between residency restrictions and reduced crime. "Overall, the findings suggest that if residency restrictions have an effect on recidivism, the relationship is small," the study states. "In Michigan, trends indicate that this effect would lead to a slight increase in recidivism among the sex offender groups, while in Missouri this effect would lead to a slight decrease in recidivism." In its summary, researchers cautioned the expansion of residency restriction legislation. "The findings suggest that residency restrictions are unlikely to mitigate or reduce the risk of recidivism among sex offenders." Prescott said "risk-based registries take into account lots of additional details, such as the age of the offender and victim, the type of victim and other information.” Risk is then calculated based on evidence beyond the type of conviction, and only those at high risk or at least medium risk would be publicly registered. In other words, the actual statute violated only plays a role in the risk calculation, not the sole determining factor. Under offense based registries, he said, some minor offenders who pose little realistic threat are likely to become more dangerous – either with respect to sex crimes or other crimes – because these individuals will be harassed, made pariahs, have great difficulty finding employment and housing and other problems. "In other words, if you're not already destined to be a life-time criminal, being publicly listed as a sex offender is going to make you more likely to lead a life of crime, or at least make few or only negative contributions to society,” Prescott said. "There is little doubt in my mind that there are a very small group of sex offenders who need to be very carefully regulated and monitored. Probably identifying these people using a risk-based approach would make the most sense. If we focus our resources on these people, we can do a better job at reducing the threat." ­

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