« "'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution" | Main | Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison »

December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 at 12:19 PM | Permalink

Comments

“The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

Questions for the lawyers.

Isn't that a factual question, rather than a question of law?

Where and what is the burden of proof for the above assertion?

Doesn't the Daubert standard or whatever equivalent standard applies in that state in criminal matters? Isn't it a requirement for expert opinion, such as the statement above? If Daubert or tis equivalent applies, did a hearing specific to that question take place?

Posted by: Supremacy Claus | Dec 20, 2015 2:56:43 PM

Second lawyer question.

The Court: The registry is not a punishment resulting from punishment for a crime. It is a public health regulation.

Given the self evident consequences to the registered person, isn't it then a regulatory taking violating Fifth Amendment procedural due process? If it is, shouldn't the state have to compensate all the registered offenders, even the serial rapists and murderers of little girls, for this taking, in a constitutional aggregate claim? This would not be for damages, from which the state is immune. It would be for the taking of the value of the work ability of the registered, as a loss of value from a condemnation of property.

Posted by: Supremacy Claus | Dec 20, 2015 3:03:35 PM

Third lawyer question.

Where is the defense bar? Why are they so weak?

Posted by: Supremacy Claus | Dec 20, 2015 3:04:51 PM

Yeah, the opinion by the Court here is going to 100% word salad. The appeals court is right--it's only constitutional if it's civil. If it's not civil, it is not constitutional. So what is the court going to do? Apply juvenile exceptionalism. That's obvious.

Posted by: Daniel | Dec 20, 2015 3:11:19 PM

See a relevant earlier posting:
http://sentencing.typepad.com/sentencing_law_and_policy/2015/12/top-massachusetts-court-decides-due-process-now-demands-heightened-proof-standard-for-sex-offender-c.html#comments

Posted by: brunello | Dec 20, 2015 4:01:43 PM

“The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” …

▬ ► BCF ◄ ▬

No „ not BlackRock Closed-End Funds …
– but Bovine Copulating Feces ‼

Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Dec 20, 2015 4:02:53 PM

Well, for once I actually agree with our friend Supremacy Clause. YES< registered citizens have been denied and continue to be denied DUE PROCESS. The unconstitutional 'irrebuttable presumption' cited by politicians and lawyers with robes (i.e. 'judges) is that all sex-offenders are incurable and all are at high risk to re-offend, thus justifying these blanket policies and draconian laws. Just ask your nearest Congressman or Senator. They'll tell you.

A blanket policy instituted by the government (be it state or federal) that deprives and punishes former sex-offenders, acting on this 'irrebuttable presumption', is blatantly unconstitutional, and some state Supreme Courts have reached just this conclusion (as it applies to juveniles and/or parolees in Pennsylvania, California, Massachusetts).

The stated position articulated by judges and politicians (that registration and reporting laws are merely a 'civil regulation' and 'not punishment') is a duplicitous sham, has been proven false, and is nothing more than a weak attempt to justify and give cover to their mean-spirited proclivities, and of course, a pandering to the fears of the public so as to garner votes, or appointments to the Supreme Court (talking to you Mr. Chief Justice). By the way, there is no empirically-derived evidence that SORNA (Sex Offender Reporting and Notification Act) results in any benefit whatsoever. Conversely, there is plenty of evidence to prove that there are many negative consequences that result from this type of misguided scheme (vigilantism, costs to implement and manage, increased risk of recidivism, re-incarceration, etc.) and justifies repeal and reform.

I also agree with Sup. Clause as to the DEAFENING SILENCE of the defense bar and much of the legal community (with very, very few exceptions). Isn't it about time to say something?

By the way, did you know that the U.S. Congress has just passed a law (H.R. 515) which now mandates that sex offenders (whose offense involved a child, such as 'possession of child pornography') shall have their passports prominently STAMPED to indicate their status as a "SEX OFFENDER". It matters not if the intended traveler's offense was a 'non-contact offense' or if the offense was a number of years ago, their passport shall be stamped as such. (The 'irrebuttable presumption' adopted by our Congress is that the intended traveler is intending to travel for the sole purpose of sexually offending in the country of destination, and not for any other purpose. Just ask your U.S. Congressman or Senator). Oh, did you also know that Jews in Germany in the 1930's and 40's also had their passports prominently stamped with a large "J"? Sound familiar?? Isn't it about time to say something?

Posted by: Defense Investigator | Dec 20, 2015 6:04:10 PM

I think the "purpose" argument is pretty weak at this point. Restriction after restriction can be imposed on people for whom this was not part of the sentence, and if they slip up, they go to prison for years. Calling this regime "civil" seems a perversion of the word.

The other issue with "civil"--why can't those on the registry challenge the underlying facts of their convictions. Seems to me that Gerald Amirault should be able to---anyone care to disagree.

Defense investigator--you are an idiot. There's a difference between sexual predators and religious faith/nationality. You know this---so libs, all of you who like to attack me--police your own.

Posted by: federalist | Dec 20, 2015 6:42:37 PM

In Michigan, the Zahra and Viviano Supreme Court campaigns (yes, they were elected) were basically one sex-offender diatribe after another to see who could "PUNISH" SO's the most. At least they should recuse themselves!

The Senate majority leader of the Judicial Committee is one particularly uneducated ex-sheriff who has gone on record that he "does not care" to distinguish one sex-offender from another. Why do we elect ignorant politicians who choose not to think?

In Michigan, the law is an ass which is totally separated from any meaningful reality (but so is the "law" in general).

Smith vs. Doe was one of the most disingenuous judicial decisions which permitted 9 ivy-league baboons in black pajamas to remain the political cowards that they are. Where will this all end (with the yellow star of SO stamped on each ones forehead)? If the passport law doesn't get their attention, we are doomed.

I cannot remain silent on this matter as it is leading us as a nation to a simpleton's hell in a handbasket.

Posted by: albeed | Dec 20, 2015 6:59:25 PM

I wonder if any of those judges porked anyone when that other person was under age.

Posted by: Liberty1st | Dec 20, 2015 9:05:30 PM

I would think being required to register would first absolutely require a live conviction. Here there is no conviction so I cannot see the requirement surviving.

Posted by: Soronel Haetir | Dec 20, 2015 9:12:45 PM

"There's a difference between sexual predators and religious faith/nationality."

And what difference is that? That in our age of diversity one is acceptable and the other isn't? Well, in Hitler's day one was acceptable and the other wsn't. If your plea is to culture it cuts both ways.

Posted by: Daniel | Dec 20, 2015 9:25:49 PM

Federalist...personal attacks (e.g., "you're an idiot") fails to provide any support to your argument or analysis, nor does it flatter you personally in any way. It is my position that no human being nor groups of human beings, regardless of the nature of their offenses, or their ethnicity, religion, race, etc., should be permanently deprived of their human dignity...eternally persecuted, hounded, banished, ostracized, singled out, shamed, humiliated, be made scapegoats and social pariahs. "Protecting the minority from the tyranny of the majority"...that protection must be extended to the worst of us, as it is to the best of us. We are all Americans and all human beings. That is the promise of America. I know you already know this, Federalist. You're a very bright man.

Posted by: Defemse Investigator | Dec 21, 2015 2:57:56 AM

Defense. I agree with you about personal remarks. I make them sometimes out of frustration, because nothing will ever change given the rent seeking incentives of the lawyer profession, a criminal cult enterprise.

I do not bash Federalist because he is now the sole licensed lawyer on this site who tries to defend substantive crime victim interests. The substantive interest is to not be victimized. It is not to get the privilege to boohoo on the stand, as Prof. Berman favors. Everyone knows that victimization is traumatic and life changing. Their boohooing adds nothing of substance to the tribunal.

As an utilitarian to the extreme, I swing both ways. I have made extremist statements to eradicate the violent criminal, which would be a permanent remedy, but would end crime by ending the person.

I have also made original, and to me, self evident and stupid points for the defense. No one has ever taken advantage of them because the defense bar today is an agent of the prosecutor. These points have included personal legal attacks on the prosecutor and on the judge, mortal enemy to the defendant. The defense bar can easily be replaced by the mail, email, or just the telephone. They are messengers from the prosecutor urging their clients to accept plea deals. I hold the defense bar responsible for the shocking and appalling rate of false convictions.

Only the very rich get the services depicted on Perry Mason, including those of Defense Investigator, Paul Drake.

Posted by: Supremacy Claus | Dec 21, 2015 3:56:34 AM

Hello everyone:

What we have defined as a sex crime is the problem. You don't need to "pork anyone" to be on the LIST! Understand.

What we have defined as sex crimes is absurd. Talking to a LE agent on chat who talks like a whore but pretends to be under 15, touching over clothes, photo shopping an underage face on a mature woman's body, etc. Yet, two older males (or females) making out (which use to be criminal) is now OK.

Then you have the age of majority of what, 17 or 18 because teens cannot choose to have sex because they are too immature, but can be charged as adults in crimes - go figure. Everything to make prosecutors jobs easier - right!

I don't have a problem with throwing the book at people who use force, threats, incapacitation, or coercion and/or deception of those under puberty. However, that is not what we have!

Why the broad depth of absurd laws. Bribing local politicians for more federal money for local LE by making the pool of SOs as broad and plentiful as possible. Follow the money!

Posted by: albeed | Dec 21, 2015 6:32:27 AM

Defense investigator--comparing SOs--who (other than in cases of innocence) had a choice with Jews born into the religion/ethnicity is idiotic. Sorry--I am going to say that.

Posted by: federalist | Dec 21, 2015 9:47:33 AM

Federalist: if you are going to use "choice" as a distinguishing factor, then you must also admit that sex offenders, who as a group have a very low recidivism for further sex offenses, "choose" never to offend again.

Posted by: brunello | Dec 21, 2015 10:35:43 AM

"There's a difference between sexual predators and religious faith/nationality."....sure one group are characterized as criminals and the other as breeding grounds for extremist insurgent terrorist activities

Posted by: Hap | Dec 21, 2015 5:05:37 PM

Oh good grief. The issue, of course, brunello and Hap, is that Jews didn't do anything wrong to get their passports stamped, the SOs did. Why do you people clown yourself with such denseness.

Posted by: federalist | Dec 21, 2015 5:10:05 PM

It's probably because your counter arguments are throwbacks to the Berlin Wall era in which the psychological barriers in your critical thinking will never evolve until the second coming of Ronald Reagan and his repeat fateful plea and call to arms..."Mr. federalist, tear down this wall!" ... or more than likely when hell freezes over.

Posted by: Hap | Dec 21, 2015 5:48:53 PM

God, Hap, you are dense---read my comments here--I am not in disagreement on the issue--my objection: comparing SOs to persecuted Jews. Perhaps you ought to bone up on some things before clowning yourself.

Posted by: federalist | Dec 21, 2015 5:53:17 PM

federalist | Dec 21, 2015 5:53:17 PM: You are wrong. There are comparisons to be made between the persecution of the Jews and people on the NBG list. The personality defects that you people have that allow you to persecute the Jews are the same defects that drive your "sex offender" witch hunt. It is also the same defects that allow you to believe that you are better than "coloreds" and to persecute them as well. The harassers have a long, long history of harassing hated groups. And it's all legitimate to them when they are doing it. It is only decades later when it is decided that it is not.

This is a war against Registry Terrorists.

Posted by: FRegistryTerrorists | Dec 21, 2015 7:17:32 PM

Absolutely ridiculous! Where is the justice and common sense? There are more high risk/ repeat sex offenders in public office to worry about, that are not put on any registration. When an offender has served his/her time, they should have a chance to prove their redemption. It is so evil to keep a human being locked away for the rest of their life (mass murder exception - not human being material). His conviction was erased in 1997, seems they did not consider him a risk any longer - must be the REVENUE.

Posted by: LC in Texas | Dec 21, 2015 8:57:41 PM

What about bestiality? Which is all over the internet. Watch the first episode of "The Ridiculous Six" on Netflix. A deposit of this filth can inadvertently be downloaded through an open P2P file sharing program, (like so much other crap that an offender never asked for). Prosecutors don't think twice about charging a defendant in possession of these images. Does anyone out there wonder why when you insert a store bought DVD into your video player a warning pops up on screen, almost immediately, covering the entire screen with the U.S. emblem stating in very certain terms that you will be prosecuted and sent to prison for 5 years if you copy a DVD. And yet when I was investigating, (online) CP case law, a small warning in the upper left hand corner of the screen appeared which stated that viewing CP is "illegal" and to report it anytime you suspect that someone has viewed it. Ambiguous...? Compared to the DVD scenario I just mentioned?

Posted by: tommyc | Dec 22, 2015 10:12:03 AM

Just as views in the use of the death penalty evolve and the lost war on drugs so shall the generalization of SO's in relation to their punishment/treatment evolve.

Posted by: Hap | Dec 22, 2015 7:43:40 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB