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Court Strikes Parts of Mich. Sex Offender Law for Vagueness

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By Mark Wilson, Esq. on April 08, 2015 4:46 PM

Courts are continuing the trend toward striking down Draconian laws targeting sex offenders. Last year, the Ninth Circuit Court of Appeal disapproved of California's requirement that sex offenders hand over all their Internet usernames to the state attorney general. Last month, the California Supreme Court overturned a state law categorically banning sex offenders from living in certain areas.

At the end of March, a federal district judge in Michigan similarly struck parts of that state's Sex Offender Registration Act (SORA).

A Journey of 1,000 Feet Begins ... Where, Exactly?

Five plaintiffs, convicted sex offenders all, claimed SORA violated their constitutional rights due to its "retroactive nature," as well as its "extensive reporting requirements and prohibition, and broad application."

The law, they argued, was "improperly vague, impossible to comply with, and/or wrongly impose[d] strict liability." In particular, the plaintiffs challenged SORA's prohibition on working, loitering, or residing "within a student safety zone," as well as some reporting requirements.

The court found that, even though the statute proscribes sex offenders from living 1,000 feet from designated school zones, the law is unclear as to how that 1,000 should be measured. Does the measurement start at the school's property line? The buildings? The law doesn't say, and even if there's a general understanding that property lines are where the boundary starts, "Michigan has not provided registrants with a map of exclusion zones or a list of all school properties." Instead, the state suggests that they rely on Google Maps and phone books -- neither of which is clearer, and neither of which is official.

The court applied this vagueness challenge to all the geographic limitations, finding the statute "over-polices" and forces registrants to refrain from working, living, or even hanging out in places that they might actually be allowed to.

A Lack of Specificity

The court also called into question some of the reporting requirements. SORA requires registrants to provide the state with information about vehicles they "regularly operate," phone numbers and email addresses "routinely used" and locations where their vehicles are "habitually stored or kept."

None of these words are sufficiently specific to put the plaintiffs on notice when they're violating the law, the court said. While the state claimed the same "everyone knows" argument as it did with the geographic limitation, plaintiffs produced evidence that not even law enforcement officials and prosecutors agreed "how often a registrant could use a vehicle before triggering SORA's reporting requirements."

While the court upheld some of the Internet reporting requirements, it did find that the requirement to report "designations used in internet communications or postings" was fairly vague. Did it include a World of Warcraft alias? An online banking ID? An eBay user name? The court didn't strike this provision, but limited its enforcement "to apply to Internet designations that are primarily used in Internet communications or postings," which would exclude websites primarily used for commerce, like online banking or eBay.

Perhaps recognizing that jurisdictions may craft intentionally Byzantine and hard-to-comply-with statutes in order to arrest sex offenders on highly technical violations, the court cautioned, "SORA was not enacted to serve 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."

This is only half of the 73-page order, though. The court voided other parts of the statute for vagueness, but sustained the rest.

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