Michigan Supreme Court: Registry Unconstitutional Punishment

  • Michigan’s highest court rules against retroactive application.
  • Provisions at issue are similar to changes enacted in Nebraska in 2009.
  • Ruling cites state and federal prohibitions on ex-post-facto laws.

The Michigan Supreme Court ruled on Tuesday, July 27, 2021, that requirements of the state’s Sex Offender Registration Act are an unconstitutional punishment for a man convicted years before the registry took effect.

The man’s attorney said the ruling in the Muskegon County case would impact others who were convicted before registry rules were amended in 2011.

The Supreme Court found that the 2011 statute was an unconstitutional “ex post facto” law that retroactively punished conduct, rather than an effort to promote public safety.

“We are asked to decide whether the retroactive application of Michigan’s Sex Offenders Act (as amended in 2011) … violates state and federal constitutional prohibitions on ex post facto laws,” the Supreme Court wrote.

“We hold that it does.”

Legislators enacted the state registry in 1994 as a confidential database for police. Certain offenders had to register and report address changes. The registry underwent changes and in 1997 became accessible to the public at police stations. It later went online.

The 2011 law required offenders to provide additional personal information, with changes in address or email, purchase of vehicles or travel, reported within three days, in-person.

The 2011 changes to Michigan law are similar to changes that were enacted in 2009 and put into effect under LB 285 in Nebraska.

A significant finding in the Michigan ruling:

“Defendant—as well as his similarly situated counterparts throughout the nation— endeavors to demonstrate that the dangerousness of sex offenders has been historically overblown and that, in fact, sex offenders are actually less likely to recidivate than other offenders. Further, he argues that sex-offender registries have dubious efficacy in achieving their professed goals of decreasing recidivism. A growing body of research supports these propositions. . . . For our limited purpose in examining the potential excessiveness of the 2011 SORA in regard to its public-safety purpose, these studies demonstrate that, at minimum, the 2011 SORA’s efficacy is unclear. Given the uncertainty of the 2011 SORA’s efficacy, the restraints it imposed were excessive. Over 40,000 registrants were subject to the 2011 SORA’s requirements without any individualized assessment of their risk of recidivism. The duration of an offender’s reporting requirement was based solely on the offender’s conviction and not the danger he individually posed to the community. Registrants remained subject to SORA—including the stigma of having been branded a potentially violent menace by the state—long after they had completed their sentence, probation, and any required treatment.”

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Third-Monday FEARLESS is well attended

Twenty-five people attended FEARLESS-Omaha on Monday, July 19, at St. Michael Lutheran Church.

It was the first time since the pandemic shutdown in the spring of 2020 that the nation’s first-ever FEARLESS group met in-person. (The second Saturday group, which meets at Holy Family Church in downtown Omaha, has been meeting in person for two months. Attendance at the second Saturday group is significantly smaller than the third Monday group).

There was no guest speaker for the July 19 meeting. Participants used the meeting for re-introductions and to get caught up after the year of the pandemic.

Topics discussed included the extra-legal home-invasive compliance checks carried out by law enforcement, and the sentence that was given to the man who planned and carried out the murder of Mattieo Condoluci.

On the subject of compliance checks, the group was reminded to download and use the Nebraskans Unafraid Compliance Check Guide.

If you would like to be added to the list to receive notifications of upcoming FEARLESS meetings, please let us know by sending an email to nunafrd@gmail.com with the subject line “FEARLESS Email List” and the email address to which you want the monthly notifications sent.

What are your rights when law enforcement comes to your door?

  • If you are not under supervision and law enforcement does not have a warrant, you are not required to answer a knock on your door.
  • Download and use the Compliance Check Guide.
  • You do not surrender your rights because you are forced to register.

It’s a good idea for anyone to know their constitutional rights when it comes to dealing with law enforcement.

It’s crucial for people who are forced to register to know their rights. That’s why Nebraskans Unafraid developed the Compliance Check Guide, which is free for you to download, share and keep handy around your home.

Download and share the Nebraskans Unafraid Compliance Check Guide

Here is an excerpt from the Guide:

  • Compliance checks are different from a visit from your probation or parole officer. If you are still under supervision by parole or probation, check your judgment order to see if you are required to answer the door to law enforcement other than your PO. You are almost certainly required to open the door to your probation or parole officer, and it may be possible that you are required to open the door to other law enforcement officers. Check your judgment order.
  • If you are no longer under supervision (off paper), you are not required to answer the door to police unless they have a warrant. You can ignore the knock altogether or you can talk to them through the door. “Do you have a warrant?”
  • If you decide to open the door, you can tell the officers, “You do not have permission to enter my home and I do not consent to any searches.” This can protect you from officers noticing something they can use as a pretext for a search.

Remember that the registry laws are a tangled mess and even law enforcement officers cannot keep them straight. You are in charge of who comes onto your property and into your home. You do not surrender your rights because you are forced to register.

Download and share the Nebraskans Unafraid Compliance Check Guide

We are not lawyers and all advice given here, if taken, is taken at the user’s own risk. Nebraskans Unafraid takes no responsibility for the consequences of using these tips and the user in no way should consider this document as legal advice. For legal advice, please contact an attorney and, as always, come to your own conclusions about how you handle these visits.