MI: Michigan Supreme Court limits sex offender registry law to post-2011 cases
The Michigan Supreme Court has ruled that people who committed sex offenses before July 2011 cannot be required to follow the state’s current sex offender registry law.
The unanimous decision says applying the 2021 law to older cases would add punishment after the fact.
The ruling does not affect people whose offenses happened on or after July 1, 2011. They remain subject to the current registration requirements.
https://mirs-uploads.s3.us-east-2.amazonaws.com/3670-eddie%20lee%20smith%20order.pdf
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I would argue (again) that this opinion, despite holding that the registry scheme is civil based in large part that it holds a “rational” connection to a non-punitive purpose, inspires an argument to the contrary. Despite 30+ years of the publicly available registry’s existence, the state/government would be very hard pressed to find one single example of the registry preventing a sex crime or contributing anything meaningful (I.e., could not be discovered anywhere else) to the investigation of one.
With all due respect to her memory and family, the Dru Sjodin case is the perfect demonstration. The investigation of her death initially was a massive state and federal task force interrogating local and surrounding county registrants, resulting only in the re-incarceration of many based on hyper-technical registry violations and failing to provide one single thing toward the investigation at hand. Sjodin’s assailant’s status as a registrant wasn’t discovered until he was identified after being traced through his car, obtained through video surveillance (which wasn’t pursued until the registry scrub proved useless). Accordingly, the registry used as advertised not only failed, but hindered.
The 2022 disappearance of Kiely Rodni also demonstrates the registry’s uselessness and hindrance. After her disappearance, the Placer County (CA) Sheriff’s Department concluded that she was kidnapped (although it was not made clear what led to that conclusion). Pursuant to its own procedures, a task force of its own deputies, neighboring counties, and the US Marshalls performed a registry scrub of the area, failing to find Rodni or any clues to her whereabouts and yielding 2 registry violations (both dismissed at their first court appearance). Sadly, Rodni was found in her vehicle in a nearby lake by a group of volunteer scuba divers within hours of their arrival (searching near her last known location, where they were told had been searched already). In the end, it was determined that she accidentally drove into the lake and was unable to escape her vehicle before drowning. No evidence of any foul play was found. Again, use of the registry as advertised not only failed its stated purpose, but hindered (even prevented) effective investigation.
Courts continually find the registry civil because it is purportedly “rationally” related to the non-punitive purpose of preventing sex crime. “Rational”, by definition, means based on logic or reason. Even if legislatures can substitute sound theory for logic in legislation (constitutionally questionable laws, in particular), it should stand to reason that such legislation should be stricken when the theory proves wrong. Given the fact that the registry has failed so miserably and demonstrably in every one of its original stated purposes and its supporters cannot demonstrate a single success, the relation to the non-punitive purpose is at best theoretical (and disproven theory at that) and cannot be considered “rational.” Especially where constitutional rights are concerned, there should be more to a “rational” relationship than nice intent or an agreeable title on the bill.
Dustin
The registry creates jobs, gets grants and funding and an entire list of things. It has nothing at all to do with us re-offending and they keep us on the registry because each registrant creates funding for more officers, and tasks forces.
If the registry went away, all those jobs would disappear and not one on their side is going to be happy about that. We are basically their paycheck and funding source.
CJ:
I fully understand that and frankly, don’t care.
First and foremost, officers in the registry sections of local PDs and Sheriff’s departments (normally the most hopeless and incompetent officers) will simply be reassigned, not fired. If they are fired, it will be for reasons not registry related, but for whatever shortfalls, incidents, or incompetence that led to their registry compliance positions in the first place.
Registry funding to federal, state and local law enforcement wouldn’t dry up. It’ll simply be reallocated in one form or another. The last thing any government office at any level wants is to have allocated funds left over in any given year. The fact is that they deliberately overspend every year to prevent cuts the following year.
And I certainly wouldn’t shed any tears for companies like OffenderWatch (who are notoriously bad at registry maintenance anyway) if they went under. I don’t know how many employees they actually have (probably not many, all things considered). But for them, finding other employment shouldn’t be that challenging in cyber-industry. Programmers, IT, and database managers are always in demand.
I’ve never seen a state or US attorney argue for favorable rulings based on protecting the jobs and economy of whatever industry is at issue. For example, in rulings against polygraph use (and there are a lot of them), no one ever argued that 20,000 polygraph administrators would be out of a job if the court ruled against them. Nor can I imagine that such an argument would carry a lot of weight in most courts beyond local ones (administrators often having personal or professional relationships with local judges).
Private citizens and employers, of course, are free to go through public records or run background checks if they want. Most probably won’t after eating the costs of doing so, or from being sued or arrested when whatever information they get is used to harass or discriminate.
As a registrant in Michigan, I can confirm that I checked the Michigan State Police registry database this morning. I have been removed from the Registry. Others who I know in my area have been removed also. And although Michigan’s law is less restrictive than Florida’s, it still stinks, and accomplished nothing for public safety. I have been hopeful since the first Does v Snyder decision several years ago, but this is the first time that action pursuant to a Court decision has actually taken place.
Dang dude congratulations!
Gerald
Congrats to you my friend. Maybe one day some of us in Florida will get our lives back, but Florida is mostly a lifer state with just a few people getting removed from registration once in a while.
Thank you. It does feel great today. I certainly don’t trust the Michigan Legislature to not continue to try to pass new laws to restore everyone to the registry. However, this was a unanimous decision by the Court. Other Court decisions have been going against the state. And every person who has been removed from the Registry was on that damn thing for at least 15 years. I was on it for 23 years. My live-in girlfriend was shunned by some of her family members because they saw my name on the registry. It is an evil thing. I pray that the entire country will one day realize how wrong it is to continue punishing people who have served their time.
The Court’s logic contains a detonation charge it seems unwilling to detonate. If the 2011 amendments constitute punishment when applied retroactively—and the Court concedes they do—then the same analysis applies with equal force to every prior legislative expansion. The 2008 amendments were punishment to pre-2008 registrants. The 2006 amendments were punishment to pre-2006 registrants. The 1994 amendments were punishment to pre-1994 registrants. The logic is inexorable: each layer of this statutory sediment is punitive when applied to those who offended before its enactment.
This leaves the state with three options, all politically radioactive:
One: Maintain a separate registry regime for every legislative amendment—dozens of parallel systems, each applying only to a shrinking cohort of offenders. The administrative absurdity renders this impossible.
Two: Revert to the original 1994 registry framework, stripping away two decades of legislative accretions. This would be “non-punitive” in the ex post facto sense—but it would also gut the very “public safety” apparatus the state has spent thirty years constructing. The political class will never voluntarily dismantle its own monument.
Three: Acknowledge what empirical data has demonstrated for years: registries don’t reduce recidivism, don’t prevent victimization, and serve primarily as employment and housing exclusion mechanisms. The fiscal cost of maintaining this bureaucracy—political patronage positions, contract surveillance, endless litigation—exceeds any demonstrable benefit. The registry persists not because it works, but because it pays.
The Court has opened a door it lacks the institutional courage to walk through. The question is whether anyone will force the issue and what happens if they do.
Huh! This is an excellent insight. I wonder if this was intentional now
Does this mean I can move to Michigan and not have to register?
No. The Michigan law has specific regulations for offenders who move here from other states. That part was not affected by this State Supreme Court decision.
That specific issue is currently being litigated in the Sixth Circuit Court of Appeals, but I would disagree with Gerald. You should consult a licensed Michigan attorney if your offense date is before the enactment of the 2011 law and you are interested in visiting or residing there.
It is irrational for the state of Michigan to treat similarly-situated individuals differently simply based on the state where the conviction occurred, and nothing in the Michigan Supreme Court’s order states or implies that it does not apply to those with out-of-state convictions. There would be no rational basis for treating out-of-state individuals more harshly than similarly-situated Michiganders. This is what the United States District Court said in the most recent Does v Snyder case, but the portion of the order impacting those with out-of-state convictions is currently being stayed pending the appeal.
RM
As you pointed out, the issue addressing what the case refers to as “the non-Michigan subclass” is still under appeal, and wasn’t addressed by this current action. The basic premise is that when someone who committed a sex offense somewhere other than Michigan, and moves here, the state cannot impose a registration that amounts to greater punishment than that imposed by the other state. That’s how Michigan would sidestep the retroactivity bar. No sex offender from another state should take a chance on moving to Michigan until the law is clarified. It’s another sad example of inconsistent laws from state to state. As of now, if a registrant from another state moves to Michigan, they will have to register here and hope that the court cases eventually go their way.
Very funny, isn’t any sex offender registry punishment, regardless what the judges, courts and law makers say. Especially if it was “Awarded” to us after we had already been sentenced? Mostly those like myself, who there was no registry until years after our offense(s).
Lawmakers don’t care about laws. If they did, ex post facto would have been considered in all of these draconian punishments.
Ben
Lawmakers have secret magic wands that they wave, that makes it ok to do whatever they want.
I have a secret “magic wand” I would love to wave at them, it’s called a Kanta!