SUMMARY of SORA:
When SORA was enacted in 1994, it was a private database for law
enforcement use only that had no regular reporting requirements. This served
the state’s purposes adequately for more than a decade. The registry became
public in 2004, geographic exclusion zones (1,000 foot rule) were added in 2006; sweeping
additional restrictions, reporting requirements, and tier classifications took
effect in 2011.
There have been numerous challenges to SORA
since the 2006 and 2011 amendments, culminating most recently with a 6th
Circuit Court of Appeals decision and an ongoing case that will be heard early
in 2017 before the Michigan Supreme Court.
The
Michigan Supreme Court has granted leave to determine whether (1) SORA
requirements constitute punishment, (2) whether SORA is punishment as applied
to an individual who successfully completes HYTA, (3) whether sufficient due process
is afforded by the SORA statutory definition of “conviction” to include HYTA
matters, (4) if SORA is not punishment, does the Act nevertheless violate due
process, (5) is there an ex post facto violation where subsequent requirements
such as the public registry are applied to individuals already on the registry,
and (6) is there cruel and/or unusual punishment under SORA? People v
Temelkoski, 498 Mich 942; 872 NW2d 219 (12/18/15).
In
August of 2016, the 6th Circuit Court of Appeals held that the changes to the
SORA (Sex Offenders Registration Act) imposed primarily in the 2006 and 2011 amendments were indeed
"punishment" and therefore violated the ex-post facto clause of our
U.S. Constitution. This means that
enforcement of those additional restrictions on those who were already
convicted of their "crimes" prior to the amendments, is
unconstitutional.
However, not to be outdone, the Michigan Attorney General has filed an appeal.
6 SEPT, filing by the State of MICHIGAN:
"The State seeks a panel rehearing to correct an error of law and to bring to this Court's attention a prior published and on-point opinion by this Court," the Sept. 8 filing states, claiming the court's opinion is in conflict with the 2007 case, Doe v. Bredesen.
The court held in that case that "continuous GPS monitoring and retroactive reclassification of an offender as a 'violent sexual offender' were not punitive and thus did not violate the Ex Post Facto Clause, using reasoning that is in strong tension with and in places contradicts this Court's August 25 opinion," the Sept. 8 filing reads.
So,
the big question is: what to do next? Michigan cannot
enforce a law that it knows to be unconstitutional. The court's decision theoretically
applies to all registrants who were convicted before SORA was amended to become
more restrictive. If you are subject to
a locally enforced restriction, such as the 1,000 foot rule, get a written memo
from your local city attorney stating that they will not enforce that rule
against your client. Could one succeed
with a 6.500 motion for relief in state court?
A Federal Habeas Petition? Or do
we wait for a pending case in Michigan?
We may not have to wait too long.
The Michigan Supreme court has granted leave in People v. Temelkoski* (docket # 150643) with one of the issues
whether the SORA violates Ex-Post Facto prohibitions of the Michigan
Constitution. I believe, ultimately, we
will languish until the Michigan Supreme Court decides Temelkoski and hopefully declares the retroactive provisions of
Michigan's Sex Offenders Registration Act unconstitutional and therefore
unenforceable. Although Temelkoski is
not yet on the court's calendar for oral arguments, the parties' briefs and an
amicus brief by CDAM can be found at http://courts.mi.gov/courts/michigansupremecourt/clerks/pages/cases-awaiting-argument.aspx
CHANGES
WITH 2006 AMENDMENT TO SORA
• criminalized
working, living, or loitering within 1000 feet of school
CHANGES
WITH 2011 AMENDMENT TO SORA
•
created SORA 3-tier system
•
retroactively extended registration to life for Tier III registrants
•
offense pre-dating registry results in registration if convicted of any new
felony
(“recapture”
provision)
•
in-person reporting for vast amount of information like internet identifiers
•
“immediate” reporting for minor changes like travel plans & changes to email
accounts
As the law stood prior to the amendment
in July, 2011, any person convicted of a listed offense was required to
register as a sex offender for 25 years as a first offender and for life as a
repeat offender.
There were no "tiers".
OLD LAW:
"LISTED OFFENSES" FOR SORA:
Listed Offenses range from a conviction for disorderly person with
indecent or obscene conduct up to and including Criminal Sexual Conduct in the
first degree (rape), Kidnapping a minor, and Creating Child Abusive Material
(child pornography). While the Offender Detail on the website indicates the
particular offense the individual was convicted of, all offenders are treated the
same and listed together in the same list. When observing a list of offenders
in a particular geographic area, there is no differentiation between a repeat
child molester and a person who was convicted of indecent exposure (streaking).
NEW TIERS established by the July, 2011
amendment to SORA:
A Tier 1 Offender is a person who
commits one of the following offenses (including attempts and conspiracy to
commit the offense):
•Possession
of Child Abusive Material (child pornography)
•Aggravated
Indecent Exposure toward a minor
•Unlawful
Imprisonment of a minor
•Criminal
Sexual Conduct 4th Degree and Criminal Sexual Assault of an adult
•Stalking
of a minor
Tier 1 Offenders must register 1
time per year for 15 years following their conviction or release from jail or
prison.
A Tier 2 Offender is a person who
commits a second Tier 1 Offense, or a person who commits one of the following
offenses (including attempts and conspiracy to commit the offense):
•Accosting
or Soliciting a minor (1st or 2nd offense)
•Creation
or Distribution of Child Abusive Material (child pornography)
•Use
of a Computer in a Sexual Felony
•Sodomy
unless •The victim was between 13 and 16 years of age and consented to the act
with an individual not 4 years older than the victim; or
•The
victim was 16 or 17 years of age and consented to the act with an individual
who was not in his or her household or a position of custodial authority at the
time.
•Gross
Indecency unless one of the above exceptions applies
•Solicitation
of Prostitution or Immoral Act of a minor
•Pandering
•Criminal
Sexual Conduct 2nd Degree or 4th Degree, or Criminal Sexual Assault of a minor
over 13 years of age
•Criminal
Sexual Conduct 2nd Degree of an adult
Tier 2 Offenders must register 2
times per year for 25 years following their conviction or release from jail or
prison.
Tier 3 Offender is a person who
commits another listed offense after being required to register as a Tier 2
Offender, or a person who commits one of the following offenses (including
attempts and conspiracy to commit the offense):
•Gross
Indecency with a minor under 13
•Kidnapping
of a minor
•Parental
Kidnapping
•Criminal
Sexual Conduct 1st Degree or 3rd Degree, or Aggravated Criminal Sexual Assault
unless the victim was between 13 and 16 years of age and consented to the act
with an individual not 4 years older than the victim
•Criminal
Sexual Conduct 2nd Degree or Criminal Sexual Assault against a minor less than
13 years of age
•Criminal
Sexual Conduct 4th Degree committed by a person age 17 or older against a minor
less than 13 years of age
Tier 3 Offenders must register 4 times
per year for life.
Since
July 2011, Sex Offenders have been Required to Provide More Information
Prior
to July 2011 sex offenders were required to report their:
Name,
Social security number, Birth date, Address, Their Physical description; A Photograph,
and their Fingerprints.
However,
since July 1, 2011, individuals who are
required to register have to provide additional information and reporting:
• Any
residence where they will be for more than 7 days;
• Employers;
• Schools
where they are enrolled;
• Telephone
number;
• Email
address and instant message IDs;
• License
plate, registration, and description of any motor vehicle they "regularly
use";
• Drivers
License Number (or state identification card number);
•
Copies of any passports or immigration documents;
• Professional
licenses; and
• Palm
prints.
Prior to July 2011, a sex offender must register changes in
residence within 10 days of changing that residence. However with the new changes in July 2011, that
individual must report within 3 days a change of most of the required reporting
information.
