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The Michigan Sex Offender Registry Act Is Largely Unconstitutional And Unenforceable – What Happens Now?

 

After years of court battles and legislative inaction, the United States District Court ruled on February 20, 2020 that much of Michigan’s Sex Offender Registry will be unenforceable throughout the state absent the Michigan Legislature taking action to amend the laws.  U.S. District Judge Robert Cleland directed that the final judgment would go into effect within 60 days unless the legislature enacts a new statute that comports with constitutional principles.  As the deadline of April 20, 2020 approaches, it will appear that many people subject to the requires of the registration are going to catch a break.

The original Sex Offender Registry Act (SORA) was passed in 1994 by the Michigan Legislature requiring individuals convicted of certain sex crimes to be listed on a public database.  However, SORA was amended in 2006 and 2011 adding several controversial provisions.  Significantly, the amendments imposed geographic exclusion zones around places frequented by children (e.g. schools, parks, playgrounds, etc.) barring registrants from living, working or spending time within.  In addition, the amendments AUTOMATICALLY extended the registration period to life to many registrants that were already on the list under the old law.  Finally, the reporting requirements became much more extensive and burdensome, which sets the registrant up for failure.

Assisted by the ACLU and the University of Michigan, six registrants first filed suit in 2012 against the State of Michigan asking the federal court to declare SORA unconstitutional (Doe v. Snyder I, No 12-11194 (E.D. Mich 2012).  Specifically, they claimed that the application of the amendments retroactively to people whose offenses occurred long ago violated the U.S. Constitution’s ban on ex post facto laws.  In addition, they claim the exclusion zones violate the U.S. Constitution’s requirement for due process by not providing notice of which conduct is illegal.  Finally, they argue that many of the reporting requirements are too vague for enforcement and the restrictions interfere with the registrant’s ability to parent.  The lawsuit had a significant procedural history through the U.S. District Court, the Sixth Circuit Court of Appeals and even certiorari considered by the U.S. Supreme Court (although they never accepted the case).  Parts of SORA were declared unconstitutional in 2015 and 2016 by the federal courts with a directive to the legislature to amend the laws consistent with their opinion.  To date, the Michigan Legislature has not taken action.

A class action lawsuit was brought in 2016 asking that the decisions regarding the six plaintiffs in Doe v. Snyder I be applied to all registrants (Doe v. Snyder II, No 16-13137 (E.D. Mich 2016)).  The U.S. District Court once again in Doe v. Snyder II that several sections of SORA were unconstitutional and that the retroactive application of the amendments to individuals convicted of sex crimes was an impermissible ex post facto law.  The Sixth Circuit Court of Appeals agreed in 2019 and directed the Michigan Legislature to amend the SORA registry consistent with their opinion.  However, the legislature once again declined to take action and the constitutional violations continued.

The plaintiffs moved the U.S. District Court to enter a declaratory judgment and permanent injunction order stopping the State of Michigan from enforcing SORA in violation of the orders of the federal court.  After considering all written and oral arguments, Judge Cleland granted the motions for declaratory and injunctive relief on February 20, 2020.  With respect to registrants whose offenses occurred prior to the enactment of the 2011 amendments to SORA, the State of Michigan is enjoined from enforcing THE ENTIRETY of the Michigan Sex Offender Registration Act against them.  With respect to ALL OTHER registrants, the following provisions of SORA are declared unconstitutional and unenforceable by the State of Michigan:

 

  • Provisions Void for Vagueness:
      • (1) The prohibition on working within a student safety zone (MCL 28.733–734);
      • (2) The prohibition on loitering within a student safety zone, (MCL 28.733–734);
      • (3) The prohibition on residing within a student safety zone, (MCL 28.733, 28.735);
      • (4) The requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” (MCL 28.727(1)(h));
      • (5) The requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” (MCL 28.727(1)(j)).
  • Provisions Void for Strict Liability:
      • (1) Under the Due Process Clause of the U.S. Constitution, SORA must be interpreted as incorporating a knowledge requirement.
  • Provisions Void under the First Amendment:
      • (1) The requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” (MCL 28.725(1)(f));
      • (2) The requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” (MCL 28.727(1)(h));
      • (3) The requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual, (MCL 28.727(1)(l));
      • (4) The retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” (MCL 28.727(1)(i)).
  • For registrants whose offenses subjected them to registration after the enactment of the 2011 amendments, the remaining provisions of SORA are still in full force and effect.

 

Unless the Michigan Legislature takes any action by April 20, 2020, the provisions of this judgment go into full force and effect.  Upon passage of the deadline, prosecutors are precluded from charging or enforcing any SORA violations inconsistent with the ruling of the court.  In addition, registrants subject to the act whose criminal offenses predate the 2011 amendments do not have to comply with ANY of the SORA requirements.  Although the pre-2011 registrants may still be listed by the Michigan State Police on the public database, they cannot be punished or prosecuted for failing to register, failing to update their information or notifying law enforcement of a change of address.  However, if a prosecutor does wrongfully charge a registrant with a violation of SORA inconsistent with the federal court order, you need a skilled criminal defense attorney on your side to aggressively protect your rights.

If you or a loved one have questions regarding the Michigan Sex Offender Registry or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.

 

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