In 2006, the Michigan Legislature added the lifetime electronic monitoring requirement for convictions of criminal sexual conduct, among other revisions, to Michigan law. According to the Michigan Senate Fiscal Agency, the rationale for the amendments were a result of nationwide efforts to increase penalties and post incarceration supervision of sex offenders convicted of crimes involving children in order to protect children better, following the abduction and murder of nine-year-old Jessica Lundsford in Florida in 2005.

In Michigan, under MCL 750.520n, lifetime electronic monitoring only applies to persons convicted of first degree criminal sexual conduct or second degree criminal sexual conduct, when the victim is 13-years-old or less and the defendant is 17-years-old or older. Anyone convicted of first or second degree criminal sexual conduct, even if the offense was non-violent or a first offense, is subject to lifetime electronic monitoring.

Once released from prison, or granted parole, a tether like device electronically monitors the individual. The statute itself does not outline any relief from the required monitoring and states that the offender bears the entire financial burden of electronic monitoring, despite the individual’s ability to pay. Additionally, the Michigan Supreme Court has held that the imposition of electronic monitoring is part of the sentence of the individual, and thus constitutes punishment.

The electronic monitoring statute in Michigan also does not mention anything about an assessment of risk of an individual or any findings regarding an individual’s likelihood to reoffend. The decision to impose electronic monitoring is also not subject to review. This alone makes Michigan’s statute on electronic monitoring stricter than those in many other jurisdictions. For example, in Georgia, the lifetime electronic monitoring statutes provide for a review board to classify sexual offenders and also include provisions for notification of its determination of risk assessment classification, for reevaluation and judicial review of the board’s classification.

GA Code Ann § 42-1-14. Louisiana’s statutes require a finding by a Sex Offender Assessment Panel that the individual is a “sexually violent predator” or “child sexual predator” to impose electronic monitoring, but also provide for notice and judicial review of the panel’s recommendation. LA RS § 15.560.2-15.560.4. Other jurisdictions, though, have electronic monitoring statutes that are similar to Michigan’s, including Florida and California. Risk assessment and other reviewing factors would reduce the burden on the state and allow the authorities to monitor only the violent offenders and those repeat offenders.

Electronic monitoring statutes, including the one in Michigan, also have other flaws, and some have been taken to the United States Supreme Court. In Grady North v Carolina, __ US __; 135 S Ct 1368; __ L Ed 2d __ (2015), the United States Supreme Court held that attaching a device to a person’s body, without consent, for the purpose of tracking that individual’s movements, constitutes a search under the Fourth Amendment.

The Grady Court stated that a Fourth Amendment search occurred through operation of a North Carolina law that required recidivist sex offenders to wear a satellite monitoring device. Id. at 1369-1370. However, the Grady Court also noted that the conclusion does not end the Fourth Amendment inquiry, as the Fourth Amendment only precludes unreasonable searches. Id. at 1371. The Court in Grady declined to address the reasonableness of the search in that case, as the North Carolina courts did not examine whether the State’s monitoring program was reasonable when properly viewed as a search. Id.

Electronic monitoring of those convicted of criminal sexual conduct is an issue that should be subject to review in Michigan. The Law Offices of Shannon M. Smith recognizes that not every individual convicted of first or second degree criminal sexual conduct should be subjected to electronic monitoring, and is fighting to amend the laws.

Our office is dedicated to defending those charged with criminal sexual conduct and other sex crimes. Our office also focuses on post-conviction relief and appeals for those who have already been convicted of criminal sexual conduct. If you or a loved one has been convicted of criminal sexual conduct and are looking for post conviction relief, or are currently facing criminal sexual conduct charges, call our office to set up a consultation.

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