In early 2012, more than eight years ago, five people challenged Michigan’s Sex Offenders Registration Act (SORA) in court, arguing that the registry branded them as dangerous “sex offenders” without any individual review.
One was a man — we’ll call him John — who met a woman at a club open only to those 18 and older. They slept together and only later did he learn that she was actually 15. They fell in love, eventually married, and now have three kids. But due to her age, John was prosecuted and put on the sex offender registry. As a result, he has lost countless jobs, was often homeless and unable to live with his family, and couldn’t even attend his own kids’ basketball games.
Another man in the lawsuit — we’ll call him Paul — never even committed a sex offense. In 1990 when he was 20, he tried to rob a McDonald’s. But because he threatened the manager’s teenage son — an offense charged as “child kidnapping” even though it had no sexual component whatever — he was placed on the sex offender registry for life.
John and Paul won their case in 2016, when the Sixth Circuit U.S. Court of Appeals ruled that SORA is unconstitutional. The court not only found that Michigan treats registrants as “moral lepers,” but it also concluded, based on a mountain of evidence, that registries don’t make people or communities safer.
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Four years and another lawsuit later, the House has now passed a bill to revise SORA. But that bill ignores the judicial rulings, rejects the science, and would put John and Paul right back on the public registry.
BM:
I am more than familiar with the Willman decision. It was a facial challenge to the federal SORNA. There have been several decisions stating that registrants have a federal duty to register even if they don’t have a state duty. Law enforcement is a traditional state duty in this country. I am not aware of any state requiring someone to register under federal SORNA if they are not required to register under state SORA and Willman is no different. So, for the most part, these decisions aren’t affecting registrants at the moment.
When you think of the number of former registrants affected by these decisions, it is quite large. Here in Michigan most registrants placed on the registry are tier I or tier II. But when you look at the registry, more than 50% are tier III. This is because Michigan has removed more than 20,000 tier I and II registrants from the registry. There is no accurate number as to the number of registrants removed from the registry across the country, but 500,000 would be a conservative estimate. Probably closer to 1,000,000 have been removed.
The U.S. Attorney General can go after these 500,000 to 1,000,000 persons to force them to register. There are 250,000 federal prison beds. Is the U.S. government going to release 250,000 murderers, rapists, robbers, drug traffickers, terrorists and others so it can enforce federal SORNA. I think not. Chapo Guzman’s bed in the federal system is pretty secure.
Just because the U.S. government prevails in these cases doesn’t mean that the person is on the registry. In this case Willman “lost” when the federal court ruled that he has a federal duty to register in Michigan. However, if you check MIPSOR, Willman is not on the public registry. The federal courts cannot force Michigan to register Willman or any other person. These are hollow victories for the U.S. government and not a threat to persons covered under the Does litigation.
Willman does not conflict with Does. It is consistent with Does. Willman settled the narrow issue if someone has a federal duty to register even though he has no state duty. The federal courts in Does have ruled that placing many sex offenders on the Michigan registry is unconstitutional. The federal court told Willman that he has a federal duty to register. Michigan cannot force him to register because his registration is unconstitutional. The federal attorneys who pushed this case are asses that wasted an incredible amount of money and court time to get a decision that can’t be enforced.
As long as Willman stays in Michigan, he won’t be on the registry. As long as the Does registrants stay in Michigan after they are removed, they won’t be on the registry. If they head south for the winter, they most likely will have to register where ever they go. I would bet most will stay indoors for January and February rather than head south.
I am aware of Willman and the other decisions. These decisions don’t affect anyone covered by the Does litigation. I don’t mention them because they only serve to confuse registrants.
In re: Willman
Look on MIPSOR. The bottom line is that Willman is not on the Michigan registry even though the court ruled he has a federal duty to register.
BM:
Cleland liked to play the role of hard assed prosecutor when he was prosecutor for St. Clair County. He has been no different as a judge. He is most famous for engaging in dirty underhanded conduct as prosecutor in sending Frederick Freeman to prison, who many, like former Michigan Supreme Court Justice Brennan, FBI and other federal agents and former agents, news anchors, etc., believe is innocent.
If the ACLU had drawn a different judge most pre-2012 registrants would be off of the registry today. He only agreed to the portion he found unconstitutional which he absolutely had to. The ACLU and the state appealed and the 6th Circuit made clear to him that he didn’t go far enough in finding the registry unconstitutional. Once Does I became final he refused to apply Does I to all similar situated registrants forcing the ACLU to file Does II in order to enforce Does I which doesn’t make any sense. This is why the ACLU opposes the current legislation and want Whitmer to veto it. They don’t want to be forced into any more needless litigation.
People forget Bill Schutte’s role in the Does I fiasco. He appealed to the U.S. Supreme Court which pissed off every other attorney general in the U.S. If the U.S. Supreme Court heard Does I they would have found every registry in the U.S. unconstitutional. Every other attorney general requested that the Supreme Court not hear the case so the damage will be limited to Michigan. Even the U.S. Solicitor General jumped in trying to keep the Supreme Court from hearing the case. This shows that most attorney generals agree that the registry is unconstitutional and afraid of the U.S. Supreme Court hearing Does or any other registry case on the merits. People don’t realize how the Does litigation changed the entire legal landscape in relation to the registry. People in other states keep whining and refusing to support litigation in Michigan. They are only concerned about getting off the registry in their own state. They don’t realize that the quickest way to get off the registry in their own state is by supporting the effort that can deliver the knock out blow.
Read my posts on this website and others. When people say they are ready to jump in and join the fight, I post my personal email so they can contact me. Hundreds, if not thousands, have read my posts and saw my email but I have never recieved one single response to all of the times I have posted my email address. These jerk offs are quick to tell me that I am wrong but refuse to contribute to this discussion in any productive way. I am not on the registry and never have been. I am quite content to leave the 99% who are idiots on the registry. I am only helping the 1% who deserve to be off of the registry.
As for Cleland. He has no choice in the matter. He has to sign and enforce a final order. I expect him to do so as slowly as possible. That’s why I wouldn’t be surprised if he didn’t sign the final order until 2022 even though 2021 is more likely. The wheels won’t start to turn until Cleland signs the final order. There’s a good chance it will take more than 20,000 people off the registry. I expect the state will ask for months and Cleland will give them years to make individual determinations. Of course, people with money to pay attorneys get to go to the front of the line. Registrants without money have to wait until the state gets to their case. There are currently no go to attorneys in Michigan concerning the registry. The only ones, such as Miriam Aukerman, can’t represent individual registrants. That’s because there is no money in the registry. Wait until Does II becomes final and all of these attorneys who “specialize” in SORA are going to be knocking on registrant’s doors looking for registrants willing to part with a few thousand dollars to get off of the registry earlier than others. Miriam Aukerman, Professor Riengold and other fine attorneys have done all of the heavy lifting. Low life dirtball attorneys who don’t care about registrants are waiting for Does II to become final. Rest assured, when Does II becomes final, registrants will be hiding from attorneys who “specialize” in SORA. When these low life greedy attorneys start to contact you, ask them, “where were you before Does II became final?”. Registrants have to be careful which of these attorneys they give their money to.
BM:
You have to remember that we are in uncharted territory. 5679 contains many provisions that are in direct conflict with various court decisions. Even though Does I wasn’t a class action, those affected by Does I should have been taken off of the registry. Bill Schuette took the position that registrants must sue individually in order to be removed from the registry. Does II was filed as a class action so will lead to those affected by Does I to be removed from the registry. Once Does II becomes final you have to remember that Michigan has to review 45,000 cases one by one. Michigan cases will present challenges because in many cases some records have been destroyed. Out of state cases will present many unique challenges because many courts and police departments cull old records. Then there are other challenges like the recapture provision. If a person is convicted of an out of state felony that is a misdemeanor in Michigan, they can raise that as an argument to be removed. Some conduct in other states is not even criminal in Michigan. If someone had sex with a 16 year-old in California they are on the California registry. The age of consent in Michigan is 16 so if they move to Michigan, how can Michigan put them on the registry for conduct that it doesn’t even view as criminal let alone a registerable offense?
Registrants are not going to go away until the registry is abolished. They are becoming more organized, aware of their rights and raising funds to challenge these laws, i.e., FAC and ilvoices. It’s only a matter of time until registrants in Michigan become organized and start raising funds to fight these laws. Registrants in Michigan have had the incredible luck that Miriam Aukerman and Professor Reingold coordinated in their attack on the Michigan registry and were very successful without registrants ponying up a dime. Professor Reingold has since retired so I am unsure if he is still in the fight but Miriam Aukerman is still standing front and center. Someday Miriam Aukerman will retire. Michigan registrants must organize and get behind Miriam Aukerman and the ACLU and continue the fight.
And if it weren’t enough that Michigan registrants are lucky, in 2018, Michigan voters elected Dana Nessel as attorney general, who agrees with the ACLU on the registry. So Michigan registrants had the incredible good fortune that Does I occurred in their state but now have the only attorney general in the country on their side. This wasn’t through organization or fundraising. This was just the dumb luck of having happen to live in Michigan as all of this was occurring.
Registrants in Michigan will be the first in the country to be removed in large numbers from the registry. Thank Miriam Aukerman, Professor Reingold and every one else who made this happen.
The die is already cast. Either registrants are affected by the Does litigation or they’re not. Any legislation that passes is only relevant to the affected registrants because it may cause a delay in their removal. The delay probably won’t be more than a few months. My concern is monetary damages. There is case law to support monetary damages after the courts have decided that the registry is unconstitutional. I don’t know if the Oliver Law Group is seeking monetary damages or not.
It does no good to be sitting on pins and needles because you finally may be getting off the registry. If you have funds for an attorney, he can review your case and give you an idea if you will be eligible for removal after Does II becomes final. He can even get your case moved to the front of the line. For registrants without money for an attorney, you just have to wait. I don’t believe they will begin removing registrants until at least 2022 and they may not get finished until 2026. You have to remember they have to review 45,000 case files. This will take years.
Interesting stuff Detroit. What I don’t quite understand is why are pre-2011 registrants getting off the registry? Is it because of the constitutional issues raised by the appeals court, and that they aren’t satisfied by this new legislation? Thus, there remains, for pre-2011 registrants, only an unconstitutional law on the books requiring them to register, and thus they will be removed from the requirement to register (albeit slowly)?
But what if Cleland says the new legislation satisfies the appeals court concerns? Can it be re-appealed to the appeals court? That doesn’t sound like a pre-ordained win to me.
Confused man:
The bill contradicts the court decisions so Cleland can’t rule that it is constitutional in it’s entirety. There is no need to appeal. The ACLU will hash it all out in the trial court. Pre July 1, 2011 registrants will just have to wait until the dust settles.