The Perverse Penalties of Leper Lists

By Jacob Sullum

August 31, 2016 5 min read

Officially, the restrictions imposed by Michigan's Sex Offender Registration Act aim to keep former convicts on the straight and narrow after they're released from prison. But in practice, a federal appeals court said last week, the rules are so tenuously related to that goal and so burdensome that their main effect is inflicting additional punishment on sex offenders who have already completed their sentences.

The question addressed by the U.S. Court of Appeals for the 6th Circuit was relatively narrow: whether SORA is so punitive that applying it retroactively violates the Constitution's ban on ex post facto laws. But in resolving that issue, the court brought some long overdue skepticism to bear on laws that purport to protect the public from sex offenders, suggesting they make little sense even when they're constitutional.

The 6th Circuit was responding to a challenge brought by five men and one woman who committed sex offenses before the state legislature expanded SORA's requirements. "What began in 1994 as a non-public registry maintained solely for law enforcement use," the appeals court observed, "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders."

That code, like similar laws in many other states, is based on the premise that sex offenders pose a special threat because they have especially high recidivism rates. But the appeals court noted that "Michigan has never analyzed recidivism rates despite having the data to do so," and research by the Justice Department indicates that sex offenders "are actually less likely to recidivate than other sorts of criminals."

SORA also was shaped by the misconception that sex crimes against children are typically committed by strangers, although the Justice Department estimates that 90 percent involve perpetrators who already know their victims. A provision added in 2006 bars registrants from living, working, or "loitering" within 1,000 feet of a school, regardless of whether their crimes involved children.

That rule makes it hard for sex offenders to find housing, disqualifies them from work with multiple locations, separates them from their families, and prevents them from attending school events involving their children and grandchildren. Since those conditions are not exactly conducive to rehabilitation, it's not surprising that a 2013 study funded by the Justice Department found Michigan's residence restrictions were associated with an increase in recidivism. A 2011 analysis in the Journal of Law and Economics likewise found evidence that publicly accessible registries have a perverse effect on recidivism.

In 2011 legislators compounded the Michigan registry's stigma by dividing sex offenders into three tiers that supposedly correspond to the danger they pose. Those classifications, which are based entirely on the crime of conviction and do not involve any individual assessment, can be very misleading.

All of the plaintiffs in this case qualified for Tier III, supposedly the most dangerous category. Yet one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend, while another was convicted of "a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald's." Although neither is a rapist or child molester, the appeals court noted, they face the same requirements, including lifetime registration that brands them as "moral lepers."

Another SORA provision added in 2011 requires that registrants notify police "immediately" and in person when they move, change their names, buy or borrow a car, enroll in school, start a new job, switch to a new email address, or plan to travel for more than seven days. "The requirement that registrants make frequent, in-person appearances before law enforcement," the 6th Circuit said, "appears to have no relationship to public safety at all."

The court concluded that "the punitive effects of these blanket restrictions...exceed even a generous assessment of their salutary effects." The implications of that assessment go far beyond the constitutional issue of retroactive penalties, calling into question the fairness and rationality of sex offender laws that endanger public safety by imposing gratuitous punishment.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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