Parts of the SORA were declared unconstitutional in 2016, and on Feb. 14, 2020 U.S. District Judge Robert Cleland gave the legislature 60 days to rewrite the law. Offenders were still required to report through mid-May. But on Monday, Cleland issued an interim, temporary order prohibiting officials from “enforcing registration, verification, school zone, and fee violations” of the sex offender registry law that happened or possibly happened from Feb. 14 “until the current crisis has ended.”

Read the entire story by clicking here. 

The case challenges the federal SORNA law that requires individuals who had been released from their registering duties in one state to resume registering upon relocating to another state. Currently, in cases where an individual has completed his/her registering period or where the courts have ruled that state’s registry law to be unconstitutional, the individual can be placed back on the sex offender registry in a different state after moving or visiting and could face severe retributions if they fail to report the change.

On October 1st, 2019, United States District Judge Gershwin A. Drain granted the U.S. Attorney General’s motion to dismiss the case, citing the plaintiff’s failure to identify the specific statutory language he is challenging and several arguments that were undercut in previous court rulings. An appeal was promptly filed to the 6th Circuit Court in November 2019.

This story is a reprint from the NARSOL website

Hour 1:  We will be discussing the recent decision in Michigan which will soon bar that state from enforcing SORA on those whose conduct occurred prior to 2011. In addition, the court’s final order will severely limit enforcement of various provisions of SORA on the remaining registrants. Paul Reingold from the University of Michigan School of Law will be with us to explain the ramifications and potential legislative action.

Hour 2:  Attorney Mark Yurachek will be with us to discuss the Butts County Sheriff’s appeal of the favorable ruling we won last October regarding the placement of signs at Halloween. As Sheriff Long had vowed, he appealed and the case is now pending in the Eleventh Circuit Court of Appeals. NARSOL and the Alliance for Constitutional Sex Offense Laws (ACSOL) will be joining forces in support of Judge Treadwell’s decision. See press release.

Hour 3:  Attorney Ashley Cloud from New Mexico’s Liberty & Justice Coalition will be discussing LJC’s pending lawsuit for those with out of state convictions and other challenges which will be initiated in 2020.

Although it is not mandatory, we ask that you sign up here so that we have an idea how many will be attending the call. The phone number is 605 313-5169, followed by 957605#. You may call in directly with a telephone or, if you have a speaker and microphone or a headset with a mic, you may access the call through your computer by going to https://www.freeconferencecallhd.com/dialer and following the on-screen directions for inputting the number and the code.

Live Stream Option

We also are going to live stream the call on You Tube. There won’t be any video, just an audio stream, so you can try this if you’d rather not call in. You can use your Roku or ChromeCast and have the call played over your TV.

Disclaimer

Keep in mind, responses provided on the program are merely intended to offer guidance and should not be construed as legal advice. We cannot cover the specifics of any individual’s situation sufficiently to know what the most prudent course of action is, so NARSOL advises all participants to consult with an attorney in their jurisdictions to determine the best course of action.

It’s a remarkable argument. Safety and accountability have been the ostensible watchwords in our ongoing collective discussion of sexual violence, but strong (and understandable) emotion has tended to override those concerns and diverted discourse into negative-feedback loops of ever more brutal consequences for anyone who would even be perceived to stand in the way of that punitive impulse. Just ask Aaron Perksy.

For politicians, then, few bets have been as safe as wanting to punish sex criminals harsher than the last person who spoke. Statehouse legislation proposing new and harsher restrictions for the nearly million people now on America’s sex offense registries have been as perennial as the grass in a nationwide race-to-the-bottom, regardless of whether or not those proposals were grounded in any sort of evidence. Court decisions have favored a brand of results-oriented intellectual dishonesty to conclude that registration is non-punitive and designed to enhance public safety (though with some notable exceptions), even as they turn people into permanent nomadic pariahs wholly incapable of redemption.

And so, it is indeed remarkable that Michigan Attorney General Dana Nessel made the argument that sex offender registries are exquisite punishments that undermine safety in important ways. The cases the briefs filed in People v. Betts, and People v. Snyder involve state constitutional challenges to Michigan’s sex offense registry in the context of a pair of people who were convicted of sex offenses in the mid-90’s, well before modern registration schemes were born.

The AG’s briefs make the case that Michigan’s SORA scheme is punishment, and therefore can’t be applied retroactively. That alone, that an AG would be making the argument that these laws are punishment, is remarkable enough. But these arguments go much, much further than that.

Nessel’s arguments forcefully and passionately highlight how modern registries are objectively bad public safety policy.

Modern social science research has shown that SORA’s extensive burdens are excessive in relation to SORA’s purported public safety goals. There are two salient points: 1) research refutes common assumptions about recidivism rates that supposedly justify SORA’s extreme burdens; and 2) regardless of what one believes about recidivism rates, registries are not good tools to protect the public.

Read Guy’s complete piece here at Simple Justice.

The decision is an especially important one, possibly signaling, in Mark Stern’s words over on Slate, that “the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”

Here’s the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-’90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a “sex offense” — typically defined, as in the federal statute (42 USC 16911), as “a criminal offense that has an element involving a sexual act or sexual contact with another”** — to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases.

** Definitions of the “sex offenses” that require registration vary state by state. While a number of truly heinous and deplorable crimes — rape, assault, child molestation — are included, so too, as detailed in a survey by Human Rights Watch, are many lesser crimes, such as soliciting or providing adult prostitution services (five states), public urination (13 states), consensual sex between teenagers (29 states) and exposing genitals in public (32 states).

Several of these early SORAs were challenged on ex post facto grounds, on the theory that the registration and public notification schemes imposed additional punishment retroactively, i.e., on individuals whose crimes had been committed, and who had been convicted, before the SORA legislation had taken effect (and, indeed, on individuals who had completed serving whatever period of punishment and probation or parole had been imposed upon them, and who therefore, at least in theory, possessed the same constitutional rights as you or me).

The Supreme Court, however, disagreed. In Smith v. Doe, 538 US 84 (1999), the Court held that the registration and public notification provisions of Alaska’s SORA didn’t constitute ex post facto imposition of punishment because they were not “punitive,” but rather “regulatory”: “clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public.” The “stigma and adverse community reactions” that could result from registration did not render the Act punitive because “the dissemination of the registration information, which was largely a matter of public record, did not constitute the imposition of any significant affirmative disability or restraint.”

Please see David’s full analysis at The Volokh Conspiracy in the Washington Post.

Judge Alice M. Batchelder wrote for the court, joined by Judges Gilbert S. Merritt and Bernice B. Donald. Her opinion for the court begins.

Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use . . . has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders . . . Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addresses, biometric data, and, since 2004, photographs. . . . Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions . . .) from living, working, or “loitering”1 within 1,000 feet of a school. . . . In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. . . . The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). . . . Violations carry heavy criminal penalties.

The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).

Read full story in the Washington Post blog Volokh Conspiracy

You may also be interested in the AP story published in The Detroit News