Prosecutors weigh reforms to state sex offender registry

12-31-2009 Michigan:

Michigan's overly broad sex offender list includes some kids younger than 13

LANSING — Anthony Flores doesn’t fit the profile of the card-carrying ACLU member agitating for reform of Michigan’s broadly inclusive sex offender registry, because he isn’t.

He was a prosecutor for a dozen years through the summer of 2005, holding a variety of front-line criminal-pursuing positions in both Mecosta and Ingham counties.

More recently, he’s worn a different hat. At this month’s meeting of the Coalition for a Useful Registry in one of the committee rooms of the state Capitol on Dec. 2, Flores, chairman of the group’s professional advisory board, announced he’ll be leaving his position at the end of the year.

But that doesn’t mean that his determination for reforming the state’s sex offender registry is relaxing — or that his time as a prosecutor doesn’t continue to inform his views.

“I was a career prosecutor, I loved prosecution,” he said in a recent interview.

When he worked in the Ingham County prosecutor’s office, Flores said he handled just about every kind of criminal case that came through the courtroom doors — “everything except appeals and child support cases.” In 2001, he was made chief of the unit responsible for prosecuting the state’s criminal sexual conduct laws, the division responsible for child molestation cases. “I zealously prosecuted child molesters. I make no bones about it,” he said.

“It was one of the things that gave me longevity in my career,” he added. And he explained that the experience gave him a unique perspective on all sorts of criminal behavior, the victims of crimes and perpetrators both. “I could understand somebody caught in the cycle of drug addiction. I could understand being angry because you caught your wife cheating and you strike out in violence, I understood the behavior,” he said. But there was some behavior he couldn’t understand.

“I could never understand why anyone would beat or molest a child,” he said.

Over the past four years, Flores has taught full-time at Thomas M. Cooley Law School, leading courses on trial skills among others. But reflecting on his time as a prosecutor in the CSC unit in Lansing convinced him that state laws are forcing too many people on to Michigan’s Sex Offender Registry — especially those convicted of having consensual but underage sex — and not allowing the public to use the online registry to actually identify predatory child molesters nearby.

“When I started looking at it, I got offended,” he said. “At some level, it really insulted the victims of these really heinous offenders when you lump them all in.”

With more than 45,100 names and faces on it, Michigan’s public sex offender registry has the third-highest percentage of its citizens on it of any state registry, and the second largest number of offenders overall. It went online in 1999, and has been amended several times since then, usually to add more requirements for registrants to follow such as housing restrictions or mandatory quarterly address updates, which are then listed on each offender’s unwanted webpage.

Flores would like to see it amended again, but this time to add new requirements that all juveniles accused of committing criminal sexual conduct — from severe first-degree cases to less serious fourth-degree charges — be professionally evaluated prior to sentencing them to, on top of other penalties, a minimum 25-years on the online registry. Currently, all CSC convictions include 25-years on the registry.

“The juvenile system has always been meant for rehabilitation,” he said. “We shouldn’t just knee jerk put them on the registration.”

Flores notes that most people would be surprised to learn that there are registrants as young as 13, and a few even younger than that. Flores said that he’d also like to see judges given “the discretion and tools to put the right people on” after receiving thorough pre-sentencing evaluations.

In an interview with Michigan Messenger, Wayne County Prosecutor Kym Worthy disagreed with Flores’ give-judges-more-discretion view. “No, I don’t think that judges should be making that call,” she said. But Worthy did suggest she’s open to other reforms that people like Flores’ also support.

She noted that a 2004 amendment to the state’s Sex Offender Registration Act does allow some juvenile offenders age 17 to 21 stay clear of the registry and have their convictions expunged if they complete the terms of their probation. “That’s a good thing,” Worthy said. But she points out that there’s a three-year time limit on offenders’ ability to petition to have their name removed from the registry — a limit she’d like to see lifted.

Referring to a legislative proposal from her office this year, the prosecutor with the state’s busiest office sought an “indefinite” time limit. “In other words, there would be no time period,” she said.

While that would-be reform has yet to find a sponsor, the earlier 2004 reform wasn’t retroactive — although a recent appeals court decision may open the door to revisiting hundreds of cases adjudicated before the new petitioning process was established.

Worthy, a former Wayne County judge as well as an assistant prosecutor for a dozen years before that, cites what she calls a “fairness issue” in so-called Romeo and Juliet criminal sexual conduct cases.

“I don’t think it’s fair to have them be on the sexual offender registry forever because of that. If it’s a non consensual situation, of course that’s a different story,” she said. “But that shouldn’t be something that people are settled with especially when an awful lot of people did it when they were that age and there was no such law.”

She added: “Let me just say we’re not condoning teenage sex at all. We’re just saying it shouldn’t be criminalized and you shouldn’t have a permanent record because of it.”

Flores agreed with that but went further by suggesting that too often prosecutors don’t really have the discretion to decide against prosecuting underage, consensual sex crimes, citing the intense pressure that can come from parents — or even political pressure to avoid appearing too lenient. “Sometimes we don’t have prosecutorial discretion. Sometimes the parents demand prosecution.”

Worthy, however, disagreed. “The prosecutors absolutely have discretion, and it may be a hard decision to make, just because the parents are yelling for the boy to be charged because their previously quote-unquote innocent daughter has been violated by this boy. [But] it doesn’t mean that we don’t have discretion. We still have the absolute discretion not to charge it.”

Flores’ fellow agitator for comprehensive reform of the state’s sex offender laws, Van Buren County Circuit Judge William C. Buhl, noted that while prosecutors may technically have the discretion not to prosecute a Romeo and Juliet relationship, the political reality usually demands such prosecutions.

“Kym Worthy is right,” Buhl said in an interview. “The prosecutor can do that. But she knows full well that politically it’s not a popular thing, and somebody’s gonna come out and beat you over the head with it. They’re gonna accuse you of being soft on sex crimes or favoring child molesters, and of course under the law, if they’re under 16, they’re children and they can’t consent.”

In the end, there’s probably an age-old philosophical debate over different ideas on reforming the state’s sex offender laws — or not. On that count, Worthy very much fits the profile of the tough crime-fighter.

“I have to say as a prosecutor, I have more compassion for the victims. We have parents of defendants and defendants themselves who certainly feel that they’ve been violated,” she said. But turning to what she called “the hell that some of these victims have to live with for the rest of their life because they were victims,” she added: “The defendant chose to be a defendant. The victim did not choose to be a victim. Their lives are sometimes ruined and changed forever. So I have to say that my compassion is really for the victims of these crimes.”

Flores, asked to respond to Worthy’s view, snapped back at even the suggestion that he has any less compassion for victims of crime.

“No. I have compassion for the scars that are left and the victimization,” he said. “I have so much compassion that I don’t want to insult them by putting their case next to something that’s not like it. I don’t want to put them in a sex offender registration that doesn’t mean anything.

Flores added: “I don’t disagree with her. I just think we’ve done it the wrong way.” ..Source.. David Alire Garcia