SORA Update by SORA Lawyer Cheryl Carpenter

Cheryl A. Carpenter, Esq.

122 Concord Road, Ste. 102

Bloomfield Hills, MI  48304

(248) 387-9359

[email protected]

Introduction

In 1995, Michigan enacted the Sex Offender Registration Act (SORA).  MCL 28.722 et al.  The legislative intent behind SORA was to “prevent and protect against the commission of future criminal sexual acts by convicted sex offenders.”  MCL 28.721a.   SORA was enacted as an “effective means to monitor those persons who pose such a potential danger.”   Id.  Although the legislative intent was to protect the public from future sexual offenses, there is little evidence that the sex offender registry (SOR) reduces crime.

Michigan currently has 40,959 people on the sex offender registry. Our state has the fourth largest per capita number of registrants in the country.  Id.  Michigan has more registered sex offenders than Illinois and Ohio combined.   This statistic is staggering as both Illinois and Ohio have more than 10 million residents.   Michigan has only 6-10 million residents, however, we have more registered sex offenders than two more populated  states combined.   Why the disparity in number of sex offenders?  It’s not because Michigan residents commit more sex crimes.   It is because the Michigan sex offender registry is over-inclusive.   Michigan requires defendants to register as sex offenders while the exact same offense in another State would not require registration.     Michigan’s registry is offense based rather than risk based.  This leads to many low risk and non-dangerous defendants on the registry that in turn waters down the effectiveness of the registry.   There is no way for the public to determine who is a threat when we lump all defendants together.    SORA does not give judges discretion in whom they place on the registry.   Courts hands are tied.  It is my hope that SORA moves to a risk based registry where judges are given discretion to determine whether a defendant should be placed on the registry.

In July , 2011, Michigan adopted the Adam Walsh Act that created drastic changes to SORA.   Juvenile offenders benefited the most as any person who is 13 or younger at the time of the offense was removed from the registry and for new cases, these young defendants are spared the severe consequence of SORA.   In addition, a Romeo and Juliet removal provision was added to allow registrants who had consensual sexual activity with someone not more than four years older to petition for removal from SOR.  However, the changes do not go far enough to remove low risk individuals.  Many low risk young adults will remain on the registry and their registration increased from 25 years to life.  Also, there is no removal provision for low risk adult offenders who had minor sexual offenses or those adults who prove that they have been rehabilitated.  The lack of a general petitioning process for removal is a big flaw in the Adam Walsh Act.    Further, those listed on the registry face far greater hardships and obstacles in their lives under the Adam Walsh Act.

Criminal defense attorneys must make it a priority to learn SORA in order to educate not only their clients but also judges and prosecutors.  It is ineffective assistance of counsel not to inform a client that a plea or guilty verdict will trigger SOR.  People v. Fonville.  291 Mich.App. 363 (2011).   Also, I anticipate an ineffective of assistance argument for attorneys who do not understand or inform clients of the recapture provision (discussed in outline).

It is also very important for defense counsel to fully inform their clients the extreme hardships they will face as a registered sex offender.  Being a listed offender entails much more than verifying an address and having a photograph on the registry.  SOR impacts every area of a registrant’s life – personal relationships, employment, housing, travel, and mental health.  Parents who are registered sex offenders cannot participate in their child’s school activities because the student safety zone does not allow them to “loiter” within 1000 feet of an elementary, middle or high school.  School districts and law enforcement liberally construe loiter to include parent/teacher conferences, sporting activities and the like.  SOR is not a collateral consequence of a sexual conviction.  It is a direct, punitive consequence that has major implications on a person’s life.

SORA requirements are for those “convicted” of a “listed offense” MCL 28.722(b) :

Below are the definitions of which individuals must register as a sex offender:

  1. Having a judgment of conviction or a probation order entered in any court having jurisdiction over criminal cases, including (an adult) conviction subsequently set-aside for a listed offense.  (see tiers below for all listed offenses).

 

  1. Either of the following:
    1. Being assigned to youthful trainee status (HYTA) before 10/1/2004. This does not apply if a petition is granted at any time allowing individual to discontinue registration, including reduced registration periods that extend to or past July 1, 2011.
    2. Being assigned to youthful trainee status (HYTA) before 10/1/2004 if the individual is

convicted of any other felony on or after July 1, 2011.

 

  1. Having a juvenile adjudication if BOTH of the following apply (this applies to both in-state and out-of-state adjudications):
    1. The individual was 14 or older at the time of the offense.
    2. The offense would classify the individual as a Tier III offender.

Tier Based Registry – Life, 25 or 15 years

Michigan’s SORA is strictly offense based.   This means that an individual is placed on SORA solely based on their convicted offense.   SORA does not take into account an individual’s risk to re-offend or dangerousness.   This is a big flaw in SORA.   Many people call me to ask if they can ask the court to put them into a lower tier.   Unfortunately, the answer is no.  Courts have no discretion to change the tier placement of an individual even if they show successful completion of sex offender therapy or a long history of law abiding behavior.  An individual is stuck with the length of registration based on their conviction offense.

 

Tier I important information

-Register for 15 years with petitioning opportunities for removal after 10 years. MCL 28.725(10).

-Must verify their domicile or residence one time a year during the month of the registrants’ birthday (new law 4/1/14) MCL 28.725a(a)

-Includes attempts or conspiracy for any of the below

 

-tier I used to be completely non-public; the registrant was not listed on the internet SOR and their information was only available to law enforcement and prosecutors

-however, this changed in 2012

 

Public Listing :

-offense involves a minor complainant, MCL 28.728(4)(c),

-two tier I offense convictions (two offenses charged in one case; subsequent tier I offense puts individual in tier II)

 

Non Public Listing:

-catch-all registrants

-tier I offenses with complainant who is 18 or older

 

Tier I Offenses

750.145c(4)                 A person who knowingly possesses any child sexually abusive material.

750.335a(2)(B)           Indecent exposure with fondling of self, if the victim is a                                                      minor

 

750.349b                     Unlawful imprisonment/restraint if the victim is a minor

 

750.520e                     4th Degree CSC if the victim is 18 or older

750.520g(2)                 Assault w/ Attempt to commit (touch) if the victim is 18 or older

 

750.539j                      Surveillance of or distribution, dissemination, or transmission of recording, photograph, or visual image of individual having reasonable expectation of privacy, if the victim is a minor.

750.10A                      Anyone who was at the time of the offense is a sexually

delinquent person

 

28.722(s)(vi)               Catch-All Provision (non sexual offense conviction “that                                         by its nature constitutes a sexual offense against an                                                        individual who is less than 18 years of age.”)

 

Tier II Important Information

 

-Register for 25 years.  MCL 28.725(11).

-Public list available on the internet.

-Includes tier I offender subsequently convicted of another tier I offense

-includes attempts or conspiracies of any of the below

 

-Must verify their domicile or residence two times a year; once during the month of their birthday and the corresponding month below

 

Birth Month   Reporting Months
January January and July
February February and August
March March and September
April April and October
May May and November
June June and December
July January and July
August February and August
September March and September
October April and October
November May and November
December June and December

Tier II Offenses

750.145a         A person who accosts, entices, or solicits a child less than 16 years of age… with the intent to induce or force that child or individual to commit an immoral act.

750.145b         A person who accosts, entices, or solicits a child less than 16 years of age… with the intent to induce or force that child or individual to commit an immoral act… with a prior conviction.

750.145c(2)     A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material.

 

750.145c(3)     A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material.

750.145d(1)(A) Use of the internet to solicit or commit an immoral act except for a violation arising out of a violation of 750.157c (coercing a minor to commit a felony)

 

750.158           Sodomy against a minor; unless either of the following applies: (A) victim consented, was 13 up to the age of 16 and no more than 4 years age difference OR (B) victim consented, was 17 or older and was not under custodial authority of the individual.

                       

750.338, 750.338a or 750.338b Gross indecency, victim 13 up to the age of 18, unless either of the following applies: (A) victim consented, victim 13 up to the age of 16, not more than 4 years age difference, OR  (B) victim  consent, victim 16 or 17 and victim was not under custodial authority of the individual.

750.448           Solicit to commit prostitution if the victim is a minor

750.455           Pandering – enticing female to become a prostitute.

750.520c         2nd Degree CSC if the victim is 18 or older

 

750.520c         2nd Degree CSC if victim is 13 up to the age of 18.

750.520e         4th Degree CSC if victim is 13 up to the age of 18.

750.520g(2)     Assault w/Attempt to Commit (touch) if victim is13 up to the age of 18.

Tier III important information

-Register for lifetime.  MCL 28.725(12).

-Public list available on the internet.

-Includes tier I offender subsequently convicted of another tier I offense

-includes attempts or conspiracies of any of the below

 

 

-Must verify their domicile or residence four times a year; once in their birthday month and corresponding months below: MCL 28.725a(c)

 

Birth Month Reporting Months
January January, April, July, and October
February February, May, August, and November
March March, June, September, and December
April April, July, October, and January
May May, August, November, and February
June June, September, December, and March
July July, October, January, and April
August August, November, February, and May
September September, December, March, and June
October October, January, April, and July
November November, February, May, and August
December December, March, June, and September

 

 

Tier III Offenses

 

750.338           Gross indecency between males, victim under 13

 

750.338a         Gross indecency between females, victim under 13

 

750.338b         Gross indecency between male and female, victim under 13

 

750.349           Kidnapping committed against a minor

 

750.350           Kidnapping victim under 14

 

750.520b         1st Degree CSC, does not apply when a court determines victim consented, victim 13 up to the age of 16, less than 4 yr. age difference.

 

750.520c         2nd Degree CSC, victim under the age of 13

 

750.520d         3rd Degree CSC, does not apply when a court determines victim consented, victim 13 up to the age of 16, less than 4 yr. age difference.

 

750.520e         4th Degree CSC committed by individual 17 or older against victim                          less than 13.

 

750.520g(1)     Assault w/Attempt to commit penetration, does not apply when a court determines victim consented, victim 13 up to the age of 16, less than 4 yr. age difference.

 

750.520g(2)     Assault w/Attempt to Commit touch, victim under the age of 13

 

 

Juveniles under age of 14 NEVER placed on registry

Juveniles under age of 14 are excluded from definition of “convicted” for SORA purposes thus they are not required to register.  MCL 28.722(b)(iii).  In order to qualify for removal, the juvenile’s case cannot have been a designated case (juvenile waived to adult circuit court).

This is an important change in SORA because these offenders were at the lowest risk for re-offending and have the highest percentage of success in sexual abuse treatment programs.  Further, the majority of juveniles under age of 14 who were adjudicated of a listed offense were simply engaged in juvenile sexual exploration, not predatory conduct.

Juveniles aged 14-16 with tier I and II offenses NOT required to register  

Juveniles in the 14 to 16 year old age group do not have to register as sex offenders if their offense does not fall into a tier III category.  MCL 28.722(b)(iii).  One area to be aware of are juvenile clients charged with Criminal Sexual Conduct Second Degree with victim under 13.   This is a tier III offense that would require lifetime registration.  There will be many cases where juveniles aged 14-16 engaged in sexual contact with a 10-12 year old.  There will only be a 2 to 4 year age difference between the parties, however, adjudication for this offense will lead to lifetime non-public registration.  Defense counsel should be aware of this and seek a plea bargain for alternative charges.

Juveniles aged 14-16 with tier III offenses will be on non-public registry for lifetime

Juvenile offenders remain on a non-public registry for their lifetime as long as their case was not designated to be tried in the same manner as an adult.  MCL 28.728(4)(a).

A step backward for juvenile offenders is the requirement of lifetime registration for adjudication of tier III offense.  Lifetime registration for an individual who committed an offense when they were 14 to 16 years of age is unduly harsh especially when juvenile offenders do not have the maturity adult offenders and those adult offenders may spend less time on SOR.   There is a limited opportunity for these juveniles to petition for removal after 25 years.  See below for details on petitioning process.

An important and comprehensive report about the harm juveniles suffer because of sex offender registry was completed by the Human Rights Watch, in May, 2013, entitled, “Raised on the Registry:  The Irreparable Harm of Placing Children on Sex Offender Registries in the US.”   Report can be found at www.hrw.org.   This report is very helpful in educating judges and prosecutors about why juveniles should be kept off the registry.

Adult Expungements remain convictions for SORA

Convictions that are set aside, known also as expunged, remain a conviction for SORA purposes. MCL 28.722(b)(1).  Thus, those individuals who had adult convictions set aside will remain on SOR.  One minor concession is the public registry will list that the conviction has been expunged if the offender forwards the set aside paperwork to MSP.  MCL 28.728(10).

 

 

Juvenile Expungements are not convictions for SORA

This is not a change in the law, however, many registrants and defense attorneys do not realize that an individual who had their juvenile adjudication set aside does not have to register as a sex offender.  A juvenile set aside is not a conviction for SORA.  It is a matter of exclusion because the law states, “convicted . . . include[s] a conviction subsequently set aside under 1965 PA 213, MCL 780.621 to 780.624.”  MCL 28.722(b)(i). There is no reference to juvenile set aside law, thus, juveniles who get their adjudications set aside do not have to register.  This is only relevant to juveniles aged 14-16 with tier III offenses since all other juveniles will be removed from SOR under the new law.

In December, 2012, the set aside law was expanded for juvenile adjudications.   See below for court form for juvenile set aside and House Bill 5600 which was enacted into law.

http://courts.mi.gov/Administration/SCAO/Forms/courtforms/juvenile/jc66.pdf

http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2012-PA-0527.pdf

 

 

$50.00 Annual Fee for Registrants

Effective 4/14, registrants will have to pay an annual $50.00 fee.   Maximum

fee is $550.00 for registrants’ lifetime.   The fee can be waived up to 90 days if the registrant can prove indigence.  Anyone who willfully refuses or fails to pay within 90 days is guilty of a 90 day misdemeanor.

 

 

How to Keep Your Client off SOR

There are a handful of ways for defense counsel to shield their client from SOR:

1.  Holmes Youthful Trainee Act (HYTA)

-young offenders between ages of 17-20 will remain off registry if they                               successfully complete their probation and are discharged pursuant to                                    HYTA

-HYTA is not a listed offense for SORA purpose

-It is important to note that this only applies to defendants who received                           HYTA after 10/1/04.  Those who received HYTA prior to 10/1/04 are                             considered to have a conviction for SORA purposes and are required to                              register.  MCL 28.722(b)(ii)(A)

 

-defendants can receive HYTA for following offenses:

a) 750.520d(1)(a) – CSC 3 – victim 13-15

b) 750.520e(1)(a) – CSC 4 – victim 13-15 and defendant not more                                        than 5 yrs older

c) 750.520g – Assault with intent one of the above

d)  any other listed offense unless it carries life imprisonment or is

CSC 1, 2, or any other CSC 3 or 4 other than listed above

 

 

2.  Prove consent in Romeo and Juliet cases in a hearing before sentencing

-HYTA is not required so the sentencing judge has more options in                                     sentencing

-see below section for detailed description of  procedure

 

 

3.  Constitutional challenges for cruel or unusual punishment for HYTA                                 defendants

-see People v Dipiazza, 286 Mich App 137 (2009)

 

 

4.  Consent calendar for juvenile offenders between the ages of 14-16 with tier III                  offense

-consent calendar is only necessary for juveniles in this category because                            all others will not have conviction for SORA purposes

 

 

5.  Set aside for juvenile adjudications

-see previous section

 

 

6.  Petitions for reduction in registration length for tier I or III offenders

-see below section

 

Petitioning Procedures for Removal or Reduction of Registration on SOR

A.  Removal in consensual cases (Romeo and Juliet)

B.  Reduction in length of registration for Tier I and III offenses

C.  Removal of some juvenile adjudications

A.  Consensual case petitions (Romeo and Juliet)

Consent is the essential element of this petition along with the ages of the parties.  Any tier can petition for immediate removal under this section.

 

MCL 28.728c(14) states:

The court shall grant a petition by an individual if the court determines the listed offense was the result of a consensual sexual act and ANY of the following apply:

 

(A) ALL of the following:

(i) The victim was 13 or older but less than 16 years old at the time of the offense.

(ii) The petitioner is not more than 4 years older than the victim.

 

 

(B) ALL of the following:

(i)   Petitioner was convicted of

-Crime against nature or sodomy against victim under 18 (MCL 750.158) or

-Gross Indecency victim 13-17 years old (MCL 750.338, 750.338a, or                               338b)

(ii)  Victim was 13 or older but less than 16 years old at the time of offense.

(iii) Petitioner is not more than 4 years older than the victim.

 

 

(C) ALL of the following:

(i)   Petitioner was convicted of

-Crime against nature or sodomy against victim under 18 (MCL 750.158) or

-Gross Indecency victim 13-17 years old (MCL 750.338, 750.338a, or                               338b)

-CSC 2nd and “that other person is under the jurisdiction of the department of corrections and the actor is an employee or a contractual employee of, or a volunteer with, the department of corrections who knows that the other person is under the jurisdiction of the department of corrections.”  (MCL 750.520c(1)(i

 

(ii)  Victim was 16 years or older at the time of the offense.

(ii)  Victim was not under the custodial authority of the petitioner at the time of the offense.

 

B.  Petitions for Reduction in Registration Length for tier I or III only

Tier I offenders can petition after 10 years for removal from the registry if they can prove certain criteria as explained below.  MCL 28.728c(1).  Tier III offenders who were juveniles at the time of their offense can petition after 25 years for removal if they can prove certain criteria as explained below.  Adult defendants have no relief.  MCL 28.728c(2).  Tier II offenders have no relief for reduction of their 25 year registration period.

 

Court Uses These Factors for both Tier I and III reductions in registration length 

The following is applicable for both tier I and III petitions for reductions in registration. There are additional criteria that must be proven for tier I and III reductions which are described below.

MCL 28.728c(11) states that the court shall consider ALL of the following in determining whether or not to allow the discontinuation of registration but shall NOT grant the petition if the court determines that the individual is a continuing threat to the public:

  • The individual’s age and level of maturity at the time of the offense.
  • The victim’s age and level of maturity at the time of the offense.
  • The nature of the offense.
  • The severity of the offense.
  • The individual’s prior juvenile or criminal history.
  • The individual’s likelihood to commit further listed offenses.
  • Any impact statement submitted by the victim
  • Any other information considered relevant by the court. This should include letters of support by family, friends and others in the community who know the petitioner.

 

Tier I Petition for Reduction of Registration from 15 to 10 years

MCL 28.728c(12) states the court may grant a petition under Tier I if ALL of the following apply:

(a) Ten or more years have elapsed from the date of conviction or from release from any period of confinement.

(b)       The petitioner has not been convicted of any felony since the date of conviction or release from confinement.

(c) The petitioner has not been convicted of any listed offense since the date of conviction or release from confinement.

(d)  The petitioner completed their sentence or assignment without revocation.

(e)  The petitioner successfully completed an appropriate sex offender treatment program certified by the US Attorney General or another appropriate SO treatment program. The court may waive this requirement if successful completion was not a condition of petitioner’s sentence.

 

Tier III Petition for Reduction of Registration from Life to 25 Years – JUVENILES

MCL 28.728c(13) states the court may grant a petition under Tier III if ALL of the following apply:

(a)  The petitioner was adjudicated as a juvenile and required to register.

(b)  25 or more years have elapsed since the date of adjudication or release from any period of confinement.

(c)  The petitioner has not been convicted of any felony since the date of conviction or release from confinement.

(d)  The petitioner has not been convicted of any listed offense since the date of conviction or release from confinement.

(e)  The petitioner completed their sentence or assignment without revocation.

(f)   The petitioner successfully completed an appropriate sex offender treatment program certified by the US Attorney General or another appropriate SO treatment program. The court may waive this requirement if successful completion was not a condition of petitioner’s sentence.

Romeo and Juliet  Hearing

Under pre-2011 law, Romeo and Juliet offenders could only avoid SOR if they received HYTA (as adults) or were placed on the consent calendar (juveniles). The law still exempts HYTA defendants and juveniles on consent calendar from SOR but it goes one step further.  But individuals can avoid SOR even if they do not receive HYTA or consent calendar if the sentencing court finds the offense was consensual.  Also required is a specific age group for victims and defendants.  Consent is the essential element in these cases. Below are the steps a court must take when making the determination whether a person charged in a Romeo and Juliet case has to register.  MCL 28.723a.

This section only applies to the following offenses:

750.158           Sodomy against a minor

Defendant must prove either of the following::

 

a)  victim consented

b).13 up to the age of 16

c)  no more than 4 years age difference between parties

OR

a)  victim consented

b)  victim was 17 or older and was not under custodial authority of the individual.

 

 

750.520b         1st Degree CSC

 

750.520d         3rd Degree CSC

 

750.520g(1)     Assault w/Attempt to commit penetration,

 

Defendant must prove:

 

a)  victim consented

b) victim 13 up to the age of 16

c) less than 4 yr. age difference.

 

Important Points For Romeo and Juliet Hearings:

 

1.  Hearing held prior to sentencing (adult) or disposition (juvenile)

 

A hearing must take place prior to sentencing.  However, the new law

is unclear whether the hearing should take place before the plea.  It is

important for defense counsel to have this hearing prior to the plea so

the defendant can make an intelligent and voluntary decision whether

to plead guilty or go to trial.  This may be an issue of conflict because

prosecutors may argue that this is akin to a mini-trial and should not

precede a trial.  However, defense should argue that SOR is a direct

consequence of a conviction and a client cannot make an informed

decision on whether to plead guilty or go to trial if they do not know if

the conviction will require SOR.  People v. Fonville, — N.W.2d —-,

2011 WL 222127, Mich.App., January 25, 2011 (NO. 294554).

 

2.   Defendant has burden of proof by preponderance of evidence

3.  Rules of evidence, except Rape Shield Act, shall not apply to these hearing

 

4.  Victim does not have to attend hearing and may submit letter the court can use

to determine consent

 

It is important for defense counsel to hold preliminary examinations

in the above four types of cases in order to cross exam the complaining

witness about consent.  This may be the only opportunity to do so.

 

5.  These hearings only apply to the 4 offenses listed above (not CSC 2 or 4)

Cannot file second petition if previous petition was denied after a hearing

A petition shall not be filed under this section if a previous petition was filed under this section and was denied by the court after a hearing.  MCL 28.728c(4).  It is extremely important that the attorney and client realize this is a one time shot.   Much preparation and work must be placed into a petition.   It is never a “slam dunk” or “sure thing.”   If you do not raise all the issues that show consent in your petition, you will be precluded from filing a second petition.    Investigate and prepare all petitions.

 

Indecent Exposure and Disorder Person Removed as Listed Offenses

 

If an individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is no longer required on or after July 1, 2011, they can petition for removal from SOR.  MCL 28.728c(15)(b).  These offenses required three convictions to trigger registration.  They were commonly known as the “peeing in public” offender.  Offenses that were previously required to register but required anymore are:

1.  Disorderly Person/Indecent or Obscene Conduct; MCL 750.167(1)(f)

2.  Indecent Exposure; MCL 750.335a(2)(a)

-NOTE:  aggravated indecent exposure MCL 750.335a(2)(b)

(defendant fondling themselves while minor is present) is a listed offense                            in tier I

 

Registrant’s Information Required on public registry

The new SORA amendments require much more personal information from a registrant.  Much of the new information will go on the private law enforcement database but some information will go on the public registry.  For example, a registrant’s employer’s address will be placed on the public registry.  Although the employer’s name is on private database, the employer’s address will be public.  This almost guarantees that registrants will be unemployable.   Internet searches such as Google will make it easy for anybody to type in an address to find who it belongs to.  Employers will be very hesitant to hire a registered offender because of social pressure and backlash.  It is McDonald’s corporate policy not to hire sex offenders.  Below is the list of information that will be on a registrant’s public listing:

  • Legal name, aliases, nicknames, ethnic or tribal names, or other names by which the individual is or has been known.
  • Date of birth
  • Address where the individual resides or will reside. If they do not have a residential address they shall provide the location or area used or to be used in lieu of a residence or, if they are homeless the city, village or township where they spend or will spend the majority of their time.
  • Address of individual’s employer. Includes contractor and any individual who has agreed to hire or contract with the registrant for their services. Must include the address or location of employment if different from the address of the employer. If individual lacks a fixed employment location… the general areas where the individual works and the normal travel routes taken in the course of their employment.
  • Address of any school being attended or any school the individual has been accepted to and plans to attend. This includes public or private post-secondary school or school of higher education, including a trade school. This does not apply to an individual whose enrollment and participation at an institution of higher education is solely through mail or the internet.
  • Address of any school of higher education where an individual works or volunteers.
  • License plate number or registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual
  • Brief summary of convictions for listed offenses regardless of when they occurred
  • Complete physical description.
  • Photograph.
  • Text of the law that defines the offense for which individual is registered.
  • Registration status (compliant, non-compliant or absconder).
  • Tier classification (I, II or III)

 

Registrant’s Information required for private law enforcement database

  • Social security number and any social security number previously used by registrant
  • Alleged dates of birth.
  • Name and address of any place of temporary lodging used or to be used, during any period the individual is away or is expected to be away from their residence, for more than 7 days. Must include the dates the lodging is used or will be used.
  • Name of individual’s employer
  • Name of any school being attended or any school the individual has been accepted to and plans to attend.
  • Name of any school of higher education where an individual works or volunteers.
  • All telephone numbers registered to the individual or routinely used by the individual.
  • All electronic mail addresses and instant message addresses assigned to or routinely used by the individual and ALL login names or other identifiers used by the individual when using any electronic mail address or instant messaging system.
  • The location, including where it is habitually stored or kept, of any motor vehicle, aircraft or vessel owned or regularly operated by individual.
  • Individual’s driver’s license number or state ID number.
  • Digital copy of registrant’s passport and other immigration documents.
  • Occupational and professional licensing information for individual including any license that authorizes the registrant to engage in any occupation, profession, trade or business.
  • Brief summary of convictions for listed offenses regardless of when they occurred, including where the offense occurred and the original charge if the conviction was for a lesser offense.
  • Registrant’s fingerprints and palm prints. If not already on file with the MSP individual must have their fingerprints and/or palm prints taken not later than September 12, 2011.
  • Electronic copy of registrant’s MI driver’s license or ID card, including photograph.
  • Any outstanding arrest warrant information.
  • Whether a DNA sample has been collected and the location where sample is stored.
  • Complete criminal history record including dates of all arrests and convictions.
  • Michigan Department of Corrections number and status of parole, probation or supervised release.
  • Registrant’s FBI investigation number.

 

Recapture Provision

This provision puts individuals on the registry that had sexual offenses prior to the enactment of SORA in 1995 if convicted of ANY felony after 7/1/11.    For example, John Doe has a 1989 conviction for CSC 1st, victim under 13.   John Doe never had to register as a sex offender as he completed his sentence prior to the enactment of SORA in 1995.   However, if John Doe is convicted of ANY type of felony after 7/1/11, he would be placed on SOR in tier III.

The subsequent felony does not have to be a listed sexual offense.  Felony is defined as a conviction that carries imprisonment of 1 year or more.  MCL 28.722(f).

This is an area of SOR that is often missed by everyone in the courtroom.   It is extremely important to ask your client about any pre-1995 convictions for sex offenses.   This is true for any client pleading guilty to any type of felony.   A way to avoid this nonsensical law, is to plea bargain the new offense to a misdemeanor.   Below are excerpts regarding recapture provision:

Subject to subsection (2), the following individuals who are domiciled . . . in

this state . . . are required to be registered under this act . . . [a]n individual

who was previously convicted of a listed offense for which he or she was not

required to register under this act, but who is convicted of any other felony

on or after 7/1/11.  MCL 28.723(1)(e)

 

For an individual who was previously convicted of a listed offense for which

he or she was not required to register under this act, but who is convicted

of any other felony on or after 7/1/11, any period of time that he or she was

not incarcerated for that listed offense or that other felony and was not civilly

committed counts toward satisfying the registration period for that listed offense

as described in this section.  MCL 28.725(14).

 

Changes that must be made, in person, with law enforcement within 3 business days:   MCL 28.725(1)

 

  1. Individual changes or vacates a residence.
  2. Individual changes place of employment, or employment is discontinued.
  3. Individual changes student status including enrollment and when enrollment is discontinued.
  4. Any changes in name
  5. Individual intends to temporarily reside at any place other than their residence for more than 7 days.
  6. Individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.
  7. Individual purchases or begins to regularly operate any vehicle, and when ownership or operation of the vehicle is discontinued.

 

 

Notify Law Enforcement within 3 days of a move of residence to out of state

If a registrant moves out of Michigan to a new state, they must report in person and notify law enforcement within 3 days before they change their residence to another state and, if known, indicate the new address.  MCL 28.725(6)

 

 

Penalties for non-compliance:

  • ANY failure to change required information, within 3 business days, is a felony conviction.
    • No prior convictions for a violation: imprisonment for not more than 4 years or a fine of not more than $2000, or both.
    • 1 prior conviction for a violation: imprisonment for not more than 7 years or a fine of not more than $5000, or both.
    • 2 or more prior convictions for a violation: imprisonment for not more than 10 years or a fine of not more than $10,000, or both.
  • ANY failure to verify information periodically (annually, bi-annually or quarterly) is guilty of a 2 year misdemeanor (which is treated like a felony) or a fine of not more than $2000, or both.
  • An individual who willfully fails to sign a registration and notice is guilty is a misdemeanor punishable by imprisonment for not more than 93 day or a fine of not more than $1000 , or both.
  • An individual who willfully refuses or fails to pay the one time registration fee within 90 days of the day the individual first reports is guilty of a misdemeanor punishable by imprisonment for not more than 90 days.

 

Must Report Travels out of Country Greater than Seven Days

Registrants must report travels to any foreign country if out of the United States for more than 7 days.  MCL 28.725(7).  The individual must notify law enforcement not later than 21 days before travel.

 

Homeless

Homeless registrants may register “the location or area used or to be used by the individual in lieu of a residence or, if the individual is homeless, the village, city, or township where the person spends or will spend the majority of his or her time.”  MCL 28.727(d).  This will alleviate some of the problems homeless has had in the past in fulfilling their registration requirements.

 

MSP Shall Remove Registrants within 7 days after determination that they no longer need to register

A new provision in SORA mandates that Michigan State Police remove a registrant from both the public internet website and law enforcement database within 7 days of determining that the registrant no longer is required to register.  MCL 28.728(9).  The time frame for removal had not been specified in the old law but it was this writer’s experience that MSP always complied quickly with court orders for removals.

 

Constitutional Challenges to Information on Public Registry are specifically preserved

It may be a foreshadowing of the numerous constitutional challenges that will be made to the vast changes in SORA, but the new law specifically states that “[i]f a court determines that the public availability . . . of any information concerning individuals registered under this act violates the constitution of the United States or this state, the department shall revise the public internet website . . . so that it does not contain that information.”  MCL 28.728(8)

 

Conclusion

The above analysis of SORA is advisory only.  Defense counsel should study the laws thoroughly before handling any SORA related issues.  Many of the statutes are vague and subject to judicial interpretation.

Prosecutors and judges are asked to remember the legislative intent behind SORA:  to protect the public from dangerous individuals and prevent commission of future crimes. MCL 28.721a.  Many of the 2011 amendments to SORA were enacted to give relief to juvenile and young adult offenders who are not dangerous and at low risk to re-offend.  Judges are encouraged to use this power freely so Michigan’s sex offender registry contains only the dangerous pedophiles and sexual predators that are likely to re-offend.  The over-inclusive nature of Michigan’s registry makes Michigan the fourth highest number of per capita registrants only behind Oregon, Delaware and Arkansas.

The real travesty is that the registry is destroying non-dangerous person’s lives forever.   Not only is the registrant punished, but so are his or her children, spouse, family and friends.    The registry is a scarlet letter that cannot be hidden from society.  Should our young wear this letter for the rest of their lives?  Should their lives be ruined because of a sexual exploration and experimentation? This is not the intent of SORA, however, this is reality.  Judges and prosecutors have the power to stop this injustice.

The next step in making our registry useful is to give discretion to judges to remove or reduce registration time for any offender they believe is low risk to society.  Judges and prosecutors know the facts surrounding a case.  Legislators in Lansing do not.  As Abraham Lincoln wisely said, “The best way to get a bad law repealed is to enforce it strictly.”  Michigan’s registry should be risk based, not offense based.

 

 

WRITTEN BY: CoalitionUR