Last month, a federal court in Michigan reviewed Michigan’s Sex Offender Registration Act (“SORA”), which prohibits sex offenders from “residing” within 1000 feet of a school. The Grand Rapids police had been notifying sex offenders that the law barred them from staying at the city’s homeless shelters, as they were both within 1000 feet of a school. This application has no policy rationale: Both shelters only permit the homeless to stay from seven in the evening to seven in the morning, so the shelters’ hours do not overlap with the schools’.

In January 2009, Thomas Pauli attempted to stay at Grand Rapids’s two homeless shelters, Guiding Light Mission and Mel Trotter Ministries. They turned him away, as they were aware that he had been convicted of a sexual crime eighteen years earlier. Pauli lay down on the sidewalk, went to sleep, and froze to death.

In response, the ACLU brought two constitutional challenges to the statute, arguing that the law violated the prohibition on cruel and unusual punishment and on ex post facto punishment. The State of Michigan, in defense, claimed that SORA did not constitute “punishment” at all, and thus was not subject to either challenge. In Smith v. Doe, the Supreme Court articulated the two-step inquiry the court would evaluate in determining “punishment:” The law is punishment if punitive in either intent or effect. Pauli was convicted in 1991; the Michigan legislature passed SORA in 2005. If relegating Pauli to freeze to death is “punishment,” it would have been applied retroactively and thus unconstitutionally. The ACLU also argued that, if punishment, the restriction was cruel and unusual. Given the location of Grand Rapids’ homeless shelters and its climate, the restriction almost ensured the outcome. A post-release death by freezing is grossly disproportionate to Pauli’s crime and thus constituted cruel and unusual punishment.

The court refused to evaluate either constitutional claim, despite their strength, instead deciding the case on grounds of statutory interpretation. The opinion argued that SORA simply did not apply in this case, as the police officers had misunderstood the term “reside.” The court revised “reside,” but as narrowly as possible: “A registrant does not violate SORA’s residency restrictions by using an emergency overnight shelter under the following conditions: (1) users are admitted to the shelter in the evening and required to leave in the morning; and (2) users have no expectation of obtaining a place in the shelter on any given night.” Instead of facing the troubling constitutional questions, or broadly revising the meaning of the statute to avoid them, the court altered the meaning of the statute just enough to prevent a precise duplicate of Pauli’s death.

We may have two broad concerns with burgeoning sex offender registries and their consequences. First, overly broad statutes may rope in offenders who do not belong there: Men guilty of urinating in public or seventeen-year-olds having consensual sex with their slightly younger girlfriends. On the rare occasion that a mainstream publication argues that sex offender registries are abusive, it usually finds this story, where a (mostly) innocent party gets caught in the dragnet.

Our second concern is that restrictions that come with sex offender registries may be too harsh even for offenders guilty of serious crimes. Although public disgust makes this case difficult to make, the death of Pauli was a rare opportunity, with facts compelling enough to force the court to acknowledge the brutality of which the registries are capable. Instead of evaluating the challenges, the court modified the statute to avoid them. By ignoring the constitutional concerns, the court missed the opportunity to honestly confront them.

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1 Comment

  1. Noah Kaplan says:

    Unfortunately, the response to a decreased reliance on sex offender registrations would probably be an increased reliance on civil commitment of sex offenders, also deemed not a “punishment.” Since the Supreme Court upheld civil commitment statutes in Hendricks, any judicial limitations now placed on registration would probably just lead states to choose to lock up sex offenders indefinitely. There is no voting constituency that represents their interests, nor any political benefit for standing up for their rights. So as long as courts continue to abdicate their minority protection function the long-term punitive consequences of a sex crimes conviction can only ratchet in one direction.

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