Saturday, June 3, 2017

Still waiting on the Michigan Supreme Court decision on SORA punitive grandfathering

UPDATE on the Constitutionality of Michigan's Sex Offender Registry Act.
 
On 12/07/2016, the Michigan Supreme Court heard oral arguments on the case of 
People v Boban Temelkoski.  As of this writing (June 3rd, 2017) we have not seen a decision out of the Michigan Supreme Court on this matter.  If you are interested, you can listen to the actual oral arguments at this link: 
http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2015-2016/150643/150643%20Audio.mp3
 
 
As a review, you can read my prior blogpost (reposted below).
 
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Court Decisions may overturn parts of Michigan's Sex Offender Registry
 
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.

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