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MI: AG files Amicus Brief Stating that SORA is Punitive and Unconstitutional

Michigan Attorney General Dana Nessel filed an Amicus Brief on Jan 30 in People vs. Betts, Supreme Court No. 148981 .

Introduction: There are dangerous sexual predators, to be sure, and the public needs to be protected from them. But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety. Indeed, it provides little differentiation between a violent rapist or reoffender and an individual who has committed a single, non-aggravated offense. And it provides no way for most registrants to lessen their registration period based on their circumstances and rehabilitation. Taken as a whole, SORA’s onerous requirements are punishment and their retroactive application violates both federal and state Ex Post Facto Clauses.

Conclusion: Michigan’s Sex Offender Registry Act, taken as a whole, imposes burdens that are so punitive in their effect that they negate the State’s public safety justifications. Accordingly, Amicus Curiae Attorney General Dana Nessel asks this Court to hold that SORA is punishment and its retroactive application violates the Ex Post Facto Clauses of the Michigan and United States constitutions. The unconstitutional 2011 amendments cannot be severed without leaving an Act that is inoperable without remedial efforts that are quintessentially legislative. Protecting the children and families of Michigan from sexual offending is critical, but it is the Legislature’s task to determine how best to do so within constitutional constraints.

Full Brief from FAC


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  1. Agamemnon

    This seems too good to be true. I feel like I’m either missing something or waiting for the other shoe to drop.

    • ab

      What will happen is in Michigan only the state laws are going to be deemed punishment and invalid at the state supreme court. Others will be required to get the laws in each of the other forty nine states invalidated. It probably won’t take 49 individual cases to do this, but there are going to have a significant number of them. The real hurdle comes once the right court battle or battles make their way into federal district courts, appeals courts, and eventually the United States Supreme Court. Unfortunately it’s likely going to be an awkward patchwork where in some instances federal fights help win state fights and in other instances state fights help win federal fights.

      • TS


        Millard v Rankin in the Tenth Circuit does this in CO. PA is similar with their rulings. Patchwork is good term to use.

        • JohnDoeUtah

          Aren’t we still waiting for a decision in Rankin from the 10th?

        • TS


          Yes, we are STILL waiting. It is unusual for them to take this long was told to me when I inquired about the time we were at last month in waiting.

        • JohnDoeUtah


          When I took Doe v. Shurtleff to the Tenth, it took them nearly 14 months to render a decision. The longer it took, the more I felt they were trying to find a unique way around precedent to screw me out of my First Amendment rights – and that they did.

        • TS


          I can believe it, sadly. Sorry to hear it. Let’s hope for the opposite here.

        • AJ

          I absolutely believe the long delay re: Rankin is because the judges are struggling to find a way to slap it down. Even SCOTUS does this now and again (see: CO baker and OK Indian country cases) as they twist and turn trying to find an answer–rather than letting the law speak for itself.

          I see the long delay as in our favor. I feel it means there’s a gaping hole in CO’s arguments the 10th is trying to fill–and for now cannot. That means there’s also a gaping hole to appeal to SCOTUS if/when it comes out. To me, the extensive delay also means CO’s arguments against Judge Matsch’s use of the 8th aren’t holding water at the 10th. I feel that even if the 10th rules it was not C&U punishment, they’ll still be stuck trying to say it’s not punishment at all.

          P.S. So much for the “soon” statement of someone on here many months back who claimed to have an inside track on it.

        • Tuna

          Another thing that may be playing into this: I think Gorsuch’s dissent in Nichols when he was a circuit judge was also a positive for registrants, and I believe it resonated with other judges.

        • TS


          If that’s true what you say then they’re being possibly political (No!). However, we know they don’t do that, especially since SCOTUS CJ Roberts once claimed that judges should stay out of politics. His take: Their job is to be an unbiased umpire, and “nobody ever went to a ballgame to see the umpire.”.


          There were two “soon” statements made by a TXSO….

      • Agamemnon

        It would seem to me like AG Nessel is petitioning for a tiered registry (like what CA is going to implement next year) so more serious crimes can be focused on and minor offenses can be disregarded.

    • CM

      Well before the legislature will do anything, they need the courts to require the changes. If they do it this way, it avoids the political suicide that goes along with any legislation that lightens the requirements of SORNA. So that could be one thought. It takes the political pressure off of the elective body.

      • Josh

        @CM….that is EXACTLY what is going to have to happen! The plaintiff response last week and now the Nessel brief both said as much. The legislature will tailor the new laws according to the judge’s order. Unfortunately, there is language in both documents that speak of 60 day deferrals and 90 day deadlines(gee, wonder where we heard that before?)to enact new laws. My hope is that the judge at the very least starts the clock on Wednesday

        • Josh

          @Michigan….for those who think that whatever new laws are enacted are going to be worse then before please re-read the language in the plaintiff response last week. What I read was that there wasn’t much left to dispute and there was a lot of concession on the state’s part. It sounds like almost all of the 2006 amendments will be undone…and the 2011 amendments just have to be completely scrapped and rewritten to pass constitutional muster at least according to AG Nessel’s brief. The absolutely worst thing that could happen to us would be for Cleland to punt this MSC but that is looking more unlikely. I’m thinking better days are ahead…..

        • Dennis

          I definitely agree, but what would make you think the judge will not punt this to the Michigan Supreme Court?

        • Dennis

          I Agree. Only problem is that the AG’s brief was for the Betts Case, and not this case. Since it was not for this case unfortunately, the judge most likely didn’t read it. Its too bad she didn’t submit that brief to this case, because in that brief, she clearly stated the 2011 amendments are not severable which is what the last issue is in this particular case

      • TS


        If that truly is what is happening, then the masses need to get involved once that step is gaveled by the justice system. Make it work for them as it should be.

        • Josh

          @Dennis….reasonable arguments and solutions were offered up in the plaintiff brief last week to hopefully avoid having Cleland punt. The state of Michigan’s own AG made her position clear in her brief. Her own opinion was to just get rid of the whole thing and rewrite it instead of trying to untangle it all….that has to carry some weight. The great unknown here is the judge and how he really feels about our “type” or “class” of people. He can really stick it to us tomorrow if he so chooses. I know that I’ll be praying tomorrow that we at least come to the start of the end of all this

  2. David

    Great news!! Thank you, MI AG Nessel, for your honesty and courage!

  3. Tp

    Good news, but I wish it went further in arguing for the sheer pointlessness of the registry all together as we know individual risk assessments are massively flawed themselves.

  4. TS

    This outweighs the AG filing from all the AGs in the Tenth Circuit who filed against Millard v Rankin IMO.

    • TS

      BTW, I did send this brief to the Millard team for submitting to the Tenth, if they will accept it, to add more info to the decision process since no opinion has been published WRT Millard v Rankin as of this morning.

      I will add that Rep Smith ought to get his eyes on this because his passport text is similar in vein. I can see this argument here in this doc being used against his labeling. Then again, it would ruin his narrative and the optics of him understanding this doc’s contents would be bad.

  5. Jack

    Gotta make a note of this quote here should Megan’s law, either version ever make it to the Supreme Court. “Public registration, the Smith majority said, is “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Not anymore.

    • New Person

      “Public registration, the Smith majority said, is “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.”

      With ever increasing laws, they chip away at the privacy that was once afforded to registrants. With colleges, background checks are implemented and the you being on the registry will pop up. The odd part is in CA when your case is dismissed, it states “the court shall thereupon dismiss the accusations or information against the defendant”. Some colleges will accept you as a worker and some won’t because the registry implies current high level of dangerousness to the institution.

      Also, if you didn’t know, all military bases will deny you access inside the base if you’re still on the registry. The base commander will provide you with a waiver form, but you have to disclose everything from your past, which is essentially forcing you to wear your past as a badge. I didn’t know about this until I was called up for an interview for a job on a military base by a third party employer on the base. Went to the visitor’s office to check-in before you can be allowed onto the base. Got denied and had to call my potential employer I was denied access to the base and couldn’t get to the interview. There’s no way that employer would hire me if I applied for the waiver b/c they can find someone who doesn’t carry that much baggage.

      My case has been dismissed and isn’t a part of any public record, but the registry makes known of my past criminality to be deemed of current and present danger. It’s as if I can’t escape this badge while I’m trying to make myself better and become a part of society again. The registry has created a barrier to keep me from becoming a part of society again, essentially clarifying I’m a second-class citizen.

      Then tack on the IML and the fact that you’re forced to get a passport or Real ID to travel domestically is another badge of dishonor to carry. (I do know the IML will mark you, but I dunno about Real IDs.)

      • Benny

        New person, been awhile since I’ve posted anything on here and having read your post I see you’ve mentioned something about the “real ID’s” having a mark. About a month ago my wife and I went to the DMV to obtain one and it was rather interesting I must say. My index offense was felony sexual battery reduced via 17b along with dismissal 1203.4 stemming from a 94 plea deal. Anyhow my wife had no troubles at all but when I came up to plate, the clerk said I had to wait as she had to speak to the manager. I notice the manager making a phone call which took about 10 mins. I’m not sure what came up on my record or what bells or whistles went off but it was rather obvious something was up. Long story short the clerk finally came back and apologized 4 the wait and said my bday was identical to someone else and there was some confusion which I knew was bs. I was giving a temp real ID, paid the fee, took a pick and print which is normal. My wife received hers in the mail 7 working days and mysteriously enough mine came in at 3 weeks. We compared both IDs very closely and I see no mark on mine whatsoever, but than again who knows what big brother sees when this new ID of mine gets swiped. I appreciate this site and all those who contribute in a positive way to rid of this wretched registry, God bless

        • New Person


          Thanks for the info and sharing of your experience with the “Real ID”. I presume the Real ID are necessary if you’re travelling through the air domestically. With that presumption, is the Real ID supposed to replace the California ID?

          Thanks in advance for the answer!

        • Benny

          @New Person, As far as we understand we needed it specifically for domestic traveling which we do on occasion, other than that I believe it’s optional. We opt 4 the combo new ID which one ID serves as both DL and ID. Btw, do you have a COR? Just wondering bc I’m leaning towards that and as we know the clock is ticking. I’m not sure if I qualify or not.

        • Gary

          I have a RealID/Enhanced License and am on SOR with no issues whatsoever getting my license. Didn’t take any longer or shorter at the Secretary of State in Michigan. A Enhanced License allows entry into foreign countries by land or sea just the same as a passport. Ive used several times with no issues.

        • Bo

          Buy a $10 card reader and swipe it for yourself and see…

  6. Jack

    Seems to stress not all registrants are that dangerous…my my my we’re getting radical here. I like it. I like it a lot.

    • Josh

      @Gary….I also have the enhanced license and like you my experience at the Secretary of State was completely normal. I believe that either this year or next it will be MANDATORY for everybody. I do know for a fact that you’ll need it to step foot on a airplane….

      • David

        @ Gary: I believe the mandatory “Real ID” will be required for all domestic air travel. However, I am not aware of it functioning in lieu of a Passport. Maybe it would work for entry to Mexico*, Canada* or the Bahamas, but a passport is certainly needed for Europe, Asia, etc.
        *(Of course, as Registrants, we would not be allowed entry to Mexico or Canada anyway.).

        (Probably a better conversation for the “International Travel” thread.)

        • Gary

          In most border states we have a license called a enhanced id which doubles as a passport for land and sea crossings. They aren’t available in non border states. But for example when I cross over to Canada, I only need my license and no passport.

        • Happy, Joyous and Free

          Real ID will be required for all domestic air travel in October 2020, unless you use your passport in place of it. Real ID is issued by each state and looks like your regular drivers license, except for a star surrounded by a circle. All Real IDs in the entire US are processed through a data center in Northern Virginia. I have mine, no issues in obtaining it.
          It will also be necessary for access to Federal government buildings.

        • TS


          To further @Gary’s post from Wikipedia:

          “An enhanced driver’s licence in Canadian English, enhanced driver’s license (EDL) in U.S. English, or enhanced ID in other common usage, is a card which functions both as driving licence and ID card with limited passport features issued in some provinces in Canada,[1] in some states in the United States,[2] and for the people who are both citizens of the country and residents in the relevant region, compliant with the Western Hemisphere Travel Initiative.

          An EDL is allowed to be used as an alternative to a passport for international land and sea travel, but not air travel, to countries that recognize it. The card includes machine-readable RFID and barcode for automated identification of the card and its holder.

          As a Western Hemisphere Travel Initiative-compliant travel document, an EDL may be used for “official purposes” (such as boarding a domestic flight) covered by the U.S. REAL ID Act.[3] However, a U.S. state that issues only EDLs, but does not issue any other REAL ID-compliant driver’s license, is not deemed compliant with the REAL ID Act unless granted an extension.[4] Likewise, REAL ID-compliant licenses alone are not sufficient to cross international borders, even if a state gives its REAL ID-compliant licenses a similar name.[5]

          EDLs are available to U.S. citizens who reside in the states of Michigan,[3][6] Minnesota,[3][7] New York,[3][8] Vermont,[3][9] and Washington.[3][10]”

        • David

          Thanks all for the additional RealID information! 👍

  7. Worried in Wisconsin

    This seems big. Any chance that the court will strike it down?

  8. Bay Area Resident

    Death by a thousand cuts! I’m going to use this moment and put that energy into writing for lobby day!

  9. Bobby S.

    I have read this twice, and this sounds like great news for everyone in Michigan. Now maybe I am just an idiot, but for those of us that are both pre-sorna 2006 and 2011 and those of us that were convicted in the the early 1990’s before the registry even existed should be removed automatically even when or if the Legislature revises the registry is that correct?. I still don’t see them revising it when this is an election year.

    • CR

      SCOTUS said in Smith v Does (Alaska) in 2003 that laws requiring registration of people who have committed sexual offenses is not punitive. Until that is overturned, don’t expect complete relief. The MI legislature could pass a new law that would require you to register. So long as it doesn’t include requirements and restrictions that are deemed punitive, you could fall under its ambit.

      That’s not to say that a new MI SORA would definitely require you to register; only that it could do so in a way that would pass constitutional muster.

  10. Harry

    This is a major crack in the dam.

  11. Eric

    The tipping point may very well come from Michigan.

  12. Tim in WI

    A.G. Nessel,
    Given there never was a close case at all I’d hope some accountability results for those who decided to render citizens subservient to database machine ,as sound policy, in defense of a free republic. Slavery it seems can take many forms and registries are property. Now the citizen data is fodder for profiteers on every level, for exploitation or affirmative , can we go back?. They used child rape to sell! Scapegoats for domestic surveillance saints & profiteers. It was the sex offender who paved the way for unfettered and unrestrained use by all parties.

  13. G4Change

    Um, someone please pinch me!!!

  14. Joe

    “There are dangerous sexual predators, to be sure, and the public needs to be protected from them.” and “Protecting the children and families of Michigan from sexual offending is critical”

    Why only sexual predators? Why only sexual offending? Why not all dangerous criminals and offending? Or at least the dangerous violent ones? Why? Is the government saying that protecting the public, my family and my children, from murderers, wife beaters, drug dealers, drunk drivers, etc is not critical? How is that even possible?

    • Eric

      @Joe…Yeah, I think the dichotomy here is that for essentially every other crime on the books you have category levels and risk assessment for those convicted. DOJ doesn’t sentence a shop lifter and an armed robber the same, nor do they give the same probation to the person convicted of drug possession as the gang member with a fire arm who was distributing, however; when the word sex is added to the title of the conviction everyone trembles and shakes and without consideration all are put on the registry for life without consideration of offense or the person’s past history in society.

      • David

        @ Eric: In a number of states, those convicted of arson are also included on the SOR. But arson is not included in IML. I would think that a destination country would be especially concerned about arsonists more than individuals convicted of a sex offenses. 🤔

    • Gralphr

      You have to remember, to many Americans, they consider sexual crimes worse than murder itself (yes, its extremely stupid). I wonder what were Michigan’s laws before 2006? Did they have lifetime registration before that? It would also be interesting if they try to make a clause to state if anyone moves there, somehow people would still have to follow sorna.

    • TS


      Take the conclusion paragraph along with other data you feel is pertinent to create a coherent argument that can be applied to the others you mention which can then be provided to every legislator who should be thinking in the same lane as you here. Get them to see one, maybe you can get them to see more.

    • M Kasart

      @Joe, and watch how these lying Ass legislators start determining what is a sexual predator and what not. They will label all contact crimes regardless of age of the victim, offender, and their relationship. Re: Romeo and Juliet types, CP cases, all predators and probably just ramp off park pissers!

  15. Jack Lancaster

    If this is a new brief compared to the one Nassel filed last year, then I’m jumping up and down for joy. The veil is being pulled back and the law torn down. Whether or not it happens this year or in the years to come, the groundwork is being built on for its eventual removal.

  16. David

    Case to be heard by Federal judge on Wednesday, Feb. 5th, 2020:

    Michigan Radio: Federal judge to hear latest arguments in case of sex offender registry ruled unconstitutional.

  17. AJ

    This could get quite interesting. If MI determines SORA to be punishment, MI will not be able to apply it to those convicted outside MI, regardless of when convicted. A State can only impose punishment for violation of ITS laws.

    MI’s only recourse would be to re-write SORA to match what SCOTUS said was okay in Smith. Sadly for us, that would then probably preclude any federal suits because Smith would be cited as dispositive.

  18. TnT

    Punitive and Unconstitutional .….. Enough Said ! No More Stalling !

  19. Austin

    Could someone help me understand what the impact would be if the amendments are invalidated? Specifically if 2011 and 2006 are overturned what would happen to people who are convicted of an offense that predates those laws?

  20. The Vampire

    Got to wait and see @Austin

    • David

      I fear it will continue to mean nothing …. unless there is injuctive relief from the court.
      Otherwise, same sh1t, ‘nother year. 😵

  21. Tom

    From regarding today’s motion hearing

    From ACLU:

    “Since the unconstitutional laws remain in place and are still being applied to sex offenders, Aukerman asked Cleland to impose a deadline on the Legislature to correct the law. She recommended lawmakers be given 60 days but said the time frame is flexible.”

    The time frame is flexible?????? Its 4 years already!!!! NO! 60 DAYS AND THATS IT!!!!! STOP KICKING THE CAN DOWN THE ROAD LETTING THE LEGISLATURES TAKE THEIR SWEET TIME!!!!!

  22. TawasGirl93

    I was at the hearing on Wednesday. And frankly, it didn’t look to me like Cleland was gonna kick this to MSC. In fact, he looked to be quite fed up with the State. The State even went so far as to suggest that the judge could just take a red marker and cross out everything that’s unconstitutional. The judge told them that’s NOT his job.

    • David

      @ TawasGirl93: From your lips to God’s grace ears!! 👍😁 Wow, you have to have – or lack! – something notable to recommend the judge just cross out what he doesn’t like!!! The judge SHOULD be pissed!

  23. The Vampire

    People should really check out the fools! They/We vote in office! Most of the fools in office don’t even know what is constitutional and what is unconstitutional 99% of them just pass feel good laws. Just like this useless registers list! Those fool law makers use kids as THEIR shields! Too make out right useless laws! Bet you all dollars to doughnuts not one fool law maker even checks too see if a law is constitutional!! Most laws that are passed is too shut up a woman’s nagging. I would love a law passed too keep woman from nagging you too death!!!! Most or all laws are passed do to parent’s failing!!! Like John Walsh who wife was more interested with shopping than her 6 year old son. But it is now your problem and society for letting this happen! No holding the parents to the fire! Or any other parents who failed and let evil take their child. The Santa claws list of who is naughty and nice does not work!!! It comes down to the parents to make sure little johnny and suzie are safe!!! And if the parents fail they should pay too! NOT cause the kid is dead! But for neglect. Which should have not happen if the parent was watching there child. But the parents don’t want too get in trouble. So let’s make up stranger danger. Like i said this crap boils down to the parents who failed the child and they want YOU to be the scrap goat!!#

    • Scooter

      So amazing how John walsh was a college srudent his now wife was a high schooler had the nerve to force unlaw full laws to Congress and here it is that he was messing around with under age girl my question is why is he not on a registry pluss he made a comment about sex offenders should die hes garbage he made money iff his dead child i feel bad on that aspect for the child but as for Mr Walsh i got no respect for the state ran with his idea and made alot of money its not about keeping your child safe its about money think about it this way if you all were so dangerous why would they let you out its just bs murders drunk drivers drug dealers no registry for them but hey it’s bs and they will continue with this bs probably only way out of this registry is in a pine box the state is dirty politician’s do not follow the constitution the founding fathers didn’t design this system this way if your a politician reading are comments hope you are listening and do whats right by the constitution not by what others say you know and we know its illegal what your doing!!!!

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