An ‘ornery’ judicial view of Mich. sex offender laws

1-7-2010 Michigan:

Retiring judge says 'root problem is that our registry includes so many more people than it needs to include'

Retiring Van Buren County Circuit Judge William C. Buhl is a rarity among Michigan’s mostly reserved black robe set.

“When things bother me, I get tired of people talking and saying this is horrible and not doing anything about it,” he said near the beginning of an in-depth interview covering his frustrations with the state’s sex offender laws.

In his southwest Michigan county, after nine elections — and never even drawing an opponent in any of them — you might think Buhl is mostly immune to the political considerations of taking on an unpopular cause. And you’d be right. But that immunity to the raw political consequences of his views has also convinced him that he has no choice but to speak his mind.

“I figure after all these years on the bench, people actually sometimes listen to you,” he mused. “I’ve got a voice and I can speak out when others can’t.”

It’s not that his fellow jurists are mute, Buhl added, just that when it comes to criticizing how Michigan handles sex crimes and especially the state’s burgeoning sex offender registry, most other elected judges legitimately worry about losing their jobs if they do likewise.

That same temerity goes for elected lawmakers, Buhl said. He cites an educational event for legislators in Lansing sponsored by the Coalition for a Useful Registry last spring. Buhl sits on the coalition’s professional advisory board. The March event featured several different information stations, each one aiming to give state senators, representatives and their staff a better understanding of how the current system works — and its shortcomings.

“I heard repeatedly, ‘Oh, we’ve got to go slow on this. We can’t do very much. Oh, it’s poison. We just don’t dare,’” Buhl said in a mocking tone. “They’re all just scared to death of it.”

Raw politics

It’s that fear that has pushed lawmakers to include anyone convicted of any of the state’s criminal sexual conduct laws on the online registry, as well as many other enhancements since the registry was created in 1994. Today, the state’s registry stands as one of the country’s broadest and most inclusive.

He said he’d like to narrow the scope of offenses that currently land individuals on the registry for a minimum of 25 years — and he said he’s not alone.

“I think that I speak for a majority, the vast majority of the judiciary,” Buhl asserted.

The reason Buhl speaks for a mostly silent majority of elected judges in Michigan — if you believe his assertion — can be summed up in one word: politics.

“It’s just scary stuff when it comes to people going to the polls and opponents will happily exploit any position you take on it that can be twisted to look like you kinda like pedophiles,” he said.

In fact, that’s what he says happened to former State Rep. Alexander Lipsey. In 2002, Lipsey, a Democrat, was defeated in an election for a Kalamazoo-based seat in the Michigan Senate by Republican Tom George, now a candidate for governor.

“George’s supporters were beating up Lipsey because he voted against going public with the registry,” Buhl recalled, noting that George himself refrained from the attack. Buhl said Lipsey was right to vote against the catch-all registry, but that didn’t matter in the end. “They unfairly accused him of being on the side of child molesters and he was defeated.”

Five years later, Lipsey was appointed to a vacant circuit judge position in Kalamazoo by Gov. Jennifer Granholm, but that Senate race became part of what Buhl calls his personal “growth process” on the flaws with the current law.

A view from the bench

The cases that regularly came to his courtroom were also part of that process. He describes one that he said made the biggest impression on him.

“I had a 17-year-old who was socially immature with a 15-year-old girlfriend that was just in love with him. And she pursued him. And the parents on both sides didn’t want them together. But despite their wishes — and this girl was far more mature than he was — they got together, and then, of course, had sex,” Buhl said.

The boy was given probation for violating the state’s criminal sexual conduct law, but was still required to be placed on the housing- and employment-denying online sex offender registry for a quarter century. “I thought, what a travesty. This kid can’t even get a job at McDonalds.”

Since then, he’s seen many similar cases. “When we have people married to their victims, with children that are a product of their crime, and they have to worry about whether they can go watch their kids’ soccer games at school, it just struck me as just wrong,” he said. “And the more I saw it, the angrier I got about it.”

Fast forward to a current case on the judge’s docket — one that also makes him angry but for a different reason.

“I have a guy right now pending sentence on his seventh failure to register,” he said, noting that registered offenders must check-in quarterly with law enforcement or face further penalties. “I finally said, ‘I want to know what he did to get on the registry.’ Well, it turns out he was a 13-year-old sexually abused child that asked a six-year-old to touch his penis. And he went through the juvenile system, was treated and has never had a sex-related offense since.”

He added that “there’s no indication that he’s a sexual predator or anybody to worry about but he is a blithering idiot that will fail to register again.”

It’s cases that that one, Buhl said, that clutter his courtroom and many others across the state.

Like other advocates for reform, Buhl said part of his efforts are geared toward playing defense, stopping what they consider to be bad legislation. He pointed to two examples from 2009.

The first was a proposal to redefine “school safety zones” to include all bus stops. Registered sex offenders are currently barred from living or working within 1,000 feet of such a zone. “That would have been a nightmare first to figure out,” he said, “because they change every year.”

The second example was a proposal to include all day cares as off-limits school safety zones to offenders.

“The way they defined day care would include almost every church that I’ve ever known,” he said. “If they include churches, they would basically render most communities, most municipalities off-limits for the registered sex offender.”

The current state-of-affairs gets worse, Buhl said, because “nobody goes back to the root problem here and the root problem is that our registry includes so many more people than it needs to include.”

Reforming the system

As for the judge’s wish-list of reforms, he pointed to three main ideas.

The first would institute a new process for evaluating — and treating — underage sex offenders.

“I think we ought to treat them like we do juvenile offenders,” he said. “Have them petition into a court that takes jurisdiction over them like we petition juveniles … and put them through an educational course as to the legal and the life affecting consequences of sex, of child rearing, of child support, of sexually transmitted diseases, and just force them to endure that. Then graduate them and that’s the end of it,” he said. “Because they’re gonna do it, they’re gonna be doing it.”

The “it” Buel is referring to is, of course, underage sex.

For other accused sex offenders, Buhl suggests a new screening process and “have people put on the registry only if they’re people we need to worry about” such as violent rapists or child predators. In other words, Buhl says, “narrow the sex offender registry to people who truly are people we fear.”

Beyond a better process, Buhl said Michigan should junk the school safety zones altogether.

“They’re silly little artificial rings that make it impossible to work with people,” he said. “We have all these people who can’t live here and they can’t work there.”

He said the employment and housing restrictions that go along with the school safety zones often make near impossible to make offenders employable, paying taxes and restitution.

Lastly, Buhl thinks lawmakers should reconsider the uncomfortable but legally significant differences between criminal sexual conduct and “penetration” — an automatic felony.

“I would treat sexual penetration the same way we treat sexual contact, and that is we don’t make it a crime when two 15-year-olds fornicate, we don’t make it a crime two 15-year-olds are all over each other sexually except for penetration,” he said. “The minute there’s any kind of penetration whatsoever, finger, doesn’t matter, bang, you’re into a 15-year felony. Whether it’s contact or penetration, when they’re under 16 it ought not be criminalized.”

Entering the last year of his judicial career, this self-described “ornery cuss” is crystal clear about the problems he sees, and the reforms he’d like to see. But that doesn’t mean he’s unaware of the long-shot odds reformers like him face.

In fact, he almost seems resigned to losing.

“We all know that it’s terrible and yet it won’t be changed,” he said with a sigh. “I figure, OK, I’m jousting with windmills. I know that the odds of getting anything done are so slim. But I can’t sit and do nothing,” he added. “I just can’t.” ..Source.. David Alire Garcia