Hamilton-Smith: Michigan’s SORA Finally Enjoined

Ed. Note: In light of a significant ruling out of Michigan, Guy Hamilton-Smith has been kind enough to do a guest post.

Today marks the end–at least of a chapter–of a nearly decade-long legal saga over Michigan’s sex offender registry. Judge Robert Cleland, federal District Judge for the Eastern District of Michigan, granted that which the Michigan ACLU sought: a permanent injunction prohibiting a number of things, including the enforcement in toto of Michigan’s sex offense registration scheme to anyone who had committed an offense prior to 2011.

A bit of background. Four years ago, the Sixth Circuit Court of Appeals in Does v. Snyder (Does I) issued a stinging opinion striking down several aspects of Michigan’s registry as unconstitutional, capping litigation that originally began in 2012. Judge Alice Batchelder, one of the more conservative judges on the Sixth Circuit, offered the following in concluding that the registry was unconstitutional on Due Process and Ex Post Facto grounds:

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Despite this opinion, Michigan’s registry more or less hummed right along unperturbed, as the decision was technically limited to only those plaintiffs who brought the case. In the days after the Sixth Circuit decision, the ACLU brought another federal lawsuit: this time, a federal class action seeking to permanently enjoin the enforcement Michigan’s registry — which is the lawsuit at hand, Does II.

Does II was filed four years ago. Obviously, these things tend to move slowly. In the interim, the parties have tried to reach a legislative compromise. Much to her credit as an elected official, Attorney General Dana Nessel weighed in by way of amicus briefs, and forcefully argued that Michigan’s sex offense registry was not only punitive, but also ineffective at its stated goals.

Despite all of this, the legislature remained unwilling to amend the law to comport with the holding of Does I, and thus the ACLU moved to enjoin the enforcement of the law. The question in Does II was not so much whether the law was unconstitutional: the Sixth Circuit had already settled that question. The central unanswered question was one of severability. Michigan’s SORA had been amended numerous times, as have most state registration laws. Many of the most burdensome provisions were added in 2011, and so if the statute was severable, it would be possible to just remove those provisions and allow the rest of the law to continue on.

Judge Cleland answered the severabilty question in the negative: that, insofar as the Ex Post Facto clause was concerned, the law stands (or it falls) as a whole:

The highlighted version of SORA attached as an exhibit to Plaintiffs’ motion shows that the 2011 amendments permeate nearly every section of the statute, most problematically the definition section of the act related to the tier classification system. It is fair to say that the 2011 amendments almost entirely rewrote the statute. Removing the deeply ingrained 2011 amendments renders the statute, as Plaintiffs’ aptly describe, a “nonsensical alphabet soup” of sentence fragments. The 2011 amendments “are not like a collection of bricks, some of which may be taken away without disturbing the [provisions that existed before], but rather are like the interwoven threads constituting the warp and woof of a fabric, one set of which cannot be removed without fatal consequences to the whole.” Without the 2011 amendments, SORA registrants and law enforcement officials have no guidance for who must register, what events must be reported, where registrants must report, how often registrants must report, or when registrants become eligible for removal from the registry. Michigan law makes clear that SORA cannot be enforced given such glaring omissions.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In short, Does II means that Michigan is the first state in the nation without a sex offense registry (at least for the bulk of those that the state mandated to be on it) — and along the lines of what their AG Dana Nessel had argued previously — Michigan will get along just fine without one, just as one gets along fine without a pebble in their shoe.

The only thing that public conviction registries are good for is punishing unpopular people and their families. The only people whom registries protect are the politicians who continue to propose and enhance them as lazy and ineffective solutions to complex problems.

While that may be more of a popular sentiment in 2020, it was not that way in the early 2010’s when Michigan ACLU’s Miriam Aukerman and Paul Reingold of the University of Michigan brought these claims to court. To the extent that the cracks have begun to show in the model of registries-as-public-safety, it is in no small part due to their efforts.

Now, we’ll see what’s next. The Michigan legislature can always try to pass a law that is constitutional, or perhaps the state will appeal Cleland’s permanent injunction to the Sixth Circuit. Regardless, Michigan now has an opportunity here to demonstrate what leadership looks like when it comes to creating real and meaningful public safety.

Let’s hope they make the most of it.

29 thoughts on “Hamilton-Smith: Michigan’s SORA Finally Enjoined

  1. Noel Erinjeri

    ” Regardless, Michigan now has an opportunity here to demonstrate what leadership looks like when it comes to creating real and meaningful public safety.”

    Well, technically, the Lions have an opportunity to win the Super Bowl next year. That’s probably more likely than the gerrymandered abortion that is the Michigan Legislature actually doing something a) useful or b) sane.


  2. Hunting Guy

    I used to have some sympathy for many of the individuals caught in this net.

    Now, my wife and I are raising our 4 grandchildren, 9 and 19 months old and 5 and 7 years old and dealing with all the trauma and drama caused by one of these sons of bitches.

    Let the bastards rot under bridges and eat out of dumpsters.

  3. Noel S

    It’s not one anecdote, there’s countless anecdotes and data that shows rapists and child molesters ruin lives, I feel zero sympathy but could get behind abolishing the registry due to financial reasons, give the money to victims instead.

    1. SHG Post author

      You conflated entirely different things, and did so poorly. But this reflects a huge element of the problem, that your exceptionally failed grasp of what SORA does gives rise to your misguided support for it.

      Are people convicted of public urination threats to your children? But they’re required to go on the sex offender registry. Do you not know where Uncle Joe lives? He’s more likely to be a child molester than any random guy in a white van, by far. Are people who have served their time likely to be recidivists? No, the recidivism rate is minuscule. Do you need protection from the 18-year-old who had sex with, and later married, the 16-year-old, but now has a statutory rape conviction? What about the teenaged girl who sexts her own pic and gets convicted of distributing child porn?

      And what does society gain by making it impossible for people who have served their sentence to rejoin society as law-abiding and productive members by denying them places to live, jobs and imposing bizarre and impossible rules? Guess what people end up doing when they can’t earn a living any other way?

      The list goes on. Think harder.

    2. andrews

      I am not convinced that the plural of “anecdote” is “data”. The recidivism rate might be data, but the problem there is that the rate for stealing tends to be higher.

      I also do not feel much threatened by public urination, which is actually fairly private in most cases, taking place in alleys and other areas where better facilities are unavailable. Yet causing a wet wall in an alley is a felony and we are to be protected from it by offender registries.

        1. andrews

          Is there a reason why anyone would care more about whether you’re convinced

          No. But if you look past that bit of polite disclaimer, you get to what is generally considered accepted wisdom, that the plural of anecdote is not data.

          That is the thing entirely missing in “scarlet letter” laws. Legislatures make findings that sex offenders are a threat, and that registration mitigates the threat, all based on feelings that certain people are icky rather than on data showing a high rate of recidivism and danger to public.

          1. SHG Post author

            You miss the point. No one cares about whether some random guy on the internet agrees or disagrees, but they may well care why if he’s got good reasons. Write the “why” and leave out the part about you. It’s not about you.

  4. Noel S

    As I said in my original reply, I do not support sora, it is a waste of money, that could be better spent on victims. But I agree with Hunting Guy when he says he doesn’t gaf what happens to sexually violent scum. The registry has way more people on it for rape and child molestation than it does public urination or sex between teens. And rape and child molestation ruin lives, that is not anecdotal, it’s backed up by data.

    1. Noel S

      I looked up people on my local sex offender registry, it was all rape and molestation, no public urination, no teen sex. Just men who cause tons of harm and contribute little to society.

      1. JR

        No I don’t have numbers on this, just stories I’ve heard. The DA uses SORA as the big hammer in the public urination and like cases. Sure you can fight the charges and go to trial and when you loose you go on SORA. Or just plead guilty to this lower charge do X time, pay Y and no SORA.

        One way you take your punishment for doing something stupid, mostly likely while drunk, and put that behind you. The other option, you are screwed getting any meaningful job or living in a decent area of town for the rest of your life.

        Having SORA and the ability to put you on it is like the DA having a nuke and you a bow and arrow in plea deals.

        And that is just the start of the fun.

    2. SHG Post author

      First, use the reply button. You’re not special. Second, regardless of why they were convicted (and if you’ve got data to support your claim, show your work) they’ve served their sentence. Ignoring that detail doesn’t help your position.

          1. Noel S

            Ok google the sex offender registry in your state and look through it, when i did this the whole first page was contact offenses, about half involving children. The idea that public urination drives the registry is false, similar to people who claim weed convictions caused mass incarceration. Violence drives both.

            1. SHG Post author

              Nobody said public urination “drives the registry,” but there are plenty of people on the registry who aren’t child molesters. And the point that seems to completely elude you is that the registry came after they’ve served their sentence. Hate them however much you need to, but once their sentence is served, it’s done.

    3. Statutory Rapist

      I think there are more statutory rape cases than anything in Texas…needs to be weeded out at least.

    4. Guy Hamilton-Smith

      I will say this — I was raped as a kid. Obviously, that impacted me. What matters most to me is not to imagine that the person who did that will either (a) die in a cage, or (b) not be able to have a meaningful life or a family, and will have to “eat out of dumpsters.”

      None of that helps me.

      What would help me is if that person were ever going to be accountable for what he did — to say “I did this to you, and I am sorry,” and, importantly, to know that he had changed.

      The registry does none of that. Arguably, it does the *opposite* of that. Research shows that it makes re-offense *more* likely, not less.

      I do agree that the money could be better spent on victim services, as well as for police to prioritize these kinds of investigations in the first place. As it stands right now, we pour untold millions into systems of punishment that don’t help victims to heal and don’t help people who have caused harm to change.

      Whatever the case is about harm caused by people, these are all folks who have already been held accountable for said harm. They’ve, by and large, “done their time.” All we’re talking about is continuing to punish them after they’ve already been punished — the only people I think that satisfies are the folks with bloodlust, regardless of whatever the people directly involved might want.

      1. Noel S

        I think victims are not monoliths, “accountability” as you describe it, for me and many others I’ve spoken with, would not be as satisfying as revenge and/or financial reparation

        If the recidivism rate for sex offenses is low doesn’t that contradict the claim that the registry makes re offense more likely ?

        And victim services are one important part, but victims need cash, pain and suffering money, being victimized can be expensive. It’d be a good idea I think to instead pour the millions straight into a victim compensation fund.

        1. Chris Rhodes

          “If the recidivism rate for sex offenses is low doesn’t that contradict the claim that the registry makes re offense more likely?”

          No. Both of those things are perfectly capable of being true at the same time. Why wouldn’t they be?

          1. Noel S

            How can they both be true at the same time? I would love to see the source on that, if the registry increases the likelihood of re offense then shouldn’t the recidivism rate be higher for registrants than those convicted but not forced to register?

            1. SHG Post author

              Noel, aside from this post not being about you, it’s just not that hard. Recidivism rates are low. Without the registry, they would be even lower. Now that your question has been answered, you’ve had your say at undo length and it’s done.

  5. Sgt. Schultz

    It’s unfortunate, Guy, that so much space in the comments have been wasted on one moron when you’ve written an excellent post about a huge decision that will help so many. Excellent post, Guy. Thank you.

    1. SHG Post author

      It’s unfortunate that the comments ended up largely dealing with irrelevant nonsense, when this case is huge and Guy did such a great job on the post. Thanks for bringing it back to the issue, SS.

  6. Eric

    Speaking as a registered sex offender, I would like to provide some insight from my point of view.

    First, I was sexually abused when I was about eight years old. I do understand exactly how terrible it is to experience sexual abuse. It’s horrific and rightfully should be looked upon with scorn. No arguments there.

    Second, I committed my own crimes when I was 19 and 20 years old. My own abuse left me socially awkward and I turned to prostitutes because I was unable to approach women in a normal way. I encountered a run-away 14 year old prostitute and, after sleeping with her, encouraged her to return to her family. She did, and an investigation was started when she told her parents about me. In the end, I had the option to walk away but, at the urging of a friend, I decided to turn myself in, get help, and pay my debt to society. This all happened in 1993, before such a thing as the registry existed.

    I remember my first night in jail. It was scary, but I believed I had done the right thing by turning myself in and confessing. I desperately wanted to be normal, and to have a clean start. I believed that I could pay my debt to society and start anew. Until 1995, this seemed to be true.

    In 1995 the registry began; I was still in prison then. I was a bit dismayed that my “clean start” would be delayed but I knew that it wouldn’t last forever. They told me I would have to register for twenty-five years. Tough, but I understood it. I accepted it. I would have my clean start in 2020.

    I was released from prison near the end of 2005, after serving a total of just over 12 years. I still have my paperwork from every time I ever registered; for years I would look at that date in 2020 and have some hope. I had something to believe in and a goal for which to reach. Then, in 2006 and 2011, the law changed and I became required to register for life.

    I’m 47 years old now. I’ve been married for over 10 years to my wife, an immigrant from Hong Kong. In order to sponsor her for immigration I had to prove beyond a reasonable doubt that I did not then, nor would I ever in the future, pose any risk to her or to any children we might have in the future. I had to prove this to the satisfaction of the Director of the Department of Homeland Security. It took years in immigration court and multiple psychiatric tests but I did it. I’ve been declared to be not a threat now, nor ever in the future.

    But still I’m registered. I can’t get any decent job. I can’t travel freely. I struggle to make friends and to be a part of society. I did bad things – I freely admit that – but I paid for those actions. I have continued to pay. At what point can I really rejoin society and get a real job, travel, and make friends without the specter of my youthful mistakes haunting me?

    Because if the answer is, “Never”, then why was I ever released from prison in the first place?

  7. Harry

    I am one of those people that they call the worst-of-the-worst.
    I served over 13 years.
    I was in sex offense therapy for the entire time I was in prison and on probation.
    I learned that I molested my victims because of mental problems that had nothing to do with sex. It was mostly about a lack of self-esteem coupled with developmental problems.
    I have addressed those problem, and I have been offense – free for over 14 years.
    I have addressed my mental health challenges, and I am confident that I will never re-offend. Statistically, my chances of re-offense are lower than for any other type of crime, and they drop every year that I am offense free.
    I did some horrible, crimes.
    But people can and do change.
    I did my time. I payed my debt.
    I jumped through all of the hoops.
    All I want is to be left alone to enjoy what remains of my life.
    My civil rights are being violated as a matter of public policy.
    This must stop in all of the states!
    There is an old saying that “two wrongs do not make a right.”

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