Federal judge rules on ACLU lawsuit over Michigan's sex offender registry

A federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional, ACLU officials of Michigan said Monday.

It said the decision will affect tens of thousands of people and follows two recent rulings by the Michigan Supreme Court, as well as numerous federal court decisions dating back to 2013.

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.

"This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement. "Michiganders and their families deserve a system that works by prioritizing public safety and prevention, not a failed, counter-productive approach that makes all of us less safe because it sabotages the ability of people with past convictions to find housing, employment and family support, which are key to successful reentry."

Aukerman has led the ACLU’s registry litigation for more than a decade, the group said.

A spokeswoman for Gov. Whitmer referred questions to the Michigan State Police.

“In consultation with the Attorney General’s Office, we’re still reviewing the ruling and working to determine next steps,” Shanon Banner, spokesperson for the Michigan State Police, said in an email to The News.

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.

It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

—Retroactively extending registration terms from 25 years to life violates the Constitution;

—People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

—Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

—The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

—Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.

Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.

Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

"After more than a decade of litigation and court decision after court decision finding SORA unconstitutional, it is time to focus our reform efforts on what works, not cling to an unconstitutional system that doesn’t," Aukerman said. "Our goal must be to end sexual offending. And if we want to achieve that goal, we need to invest in prevention, support survivors and ensure that people with past convictions can reenter society successfully."

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