MI: News from Michigan – New SORA NOT Retroactive.
Hot off the press is the following Order from the US District Court from the Eastern District of Michigan.
Michigan – Final Order 06212021
While it’ll take a few readings to understand and be able to explain the full impact of the order, we didn’t want to delay distribution of this information.
At first blush it seems to be good news, as the court concluded that the new version of Michigan’s SORA cannot apply retroactively to people whose offenses predated March 24, 2021.
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March 21! What about those let go by the state before there was a Jessica Lungsford, take about punitive!!
Looking forward to “Detroit”‘s take on this.
JZ:
This isn’t the final order that we’ve been waiting for. That’s not going to come until after July 12th. It is nice to know that the final order will come in 2021 and not 2022 (or 2023). The new law and the Betts case has muddied the waters so we have to wait to see what the final order will look like. Cleland is a real proprosecutor judge (a former unethical prosecutor in St. Clair County). I’m surprised how much he has given registrants even though it would have been better if Hood was the judge. If the ACLU had drawn Hood as a judge Michigan’s registry would be long gone and the Supreme Court would be forced to address the registry. Drawing Cleland as a judge means only a 1/2 victory and the process will be drawn out for many more years.
If you look back at Cleland’s record as a prosecutor you would be surprised that registrants got anything from him. That’s why I wasn’t surprised when the 6th Circuit went well beyond Cleland’s original order.
However, Cleland is a good barometer for the far right and how the right wing of the Supreme Court will decide. I think the Supreme Court will land somewhere between Cleland and the 6th Circuit on the registry. It’s just a matter of drawing the right judge to throw out the whole registry and a circuit court panel upholding enough of the decision to force the Supreme Court to take the case.
Michigan registrants simply drew the wrong judge in this case but more battles are brewing so it’s only a matter of time before the Michigan registry comes down.
The good news for registrants is they now know how a rightwing judge will rule. Cleland is actually right of the 11th Circuit panel which is good news for Florida registrants. Whatever they get from Cleland, registrants will get more from the 11th Circuit. Now it’s only a matter of time.
Detroit, your insight is right on here. In the final judgment, I doubt that much will change Michigan. At least that ridiculous school zone prohibition is gone. Where I hold out hope is the possibility of changes coming to the federal law. A federal law is more likely to be given consideration by the Supreme Court. Even though that Court is dominated by the right, the conservatives are sometimes more likely to adhere strictly to the Constitution in regards to issues such as retroactivity. My biggest hope would be that they look at the TRUE stats. Anything that publicly brands a person PUBLICLY, as sex offender registries do, is obviously a punishment. Plus, apparently, the proposed changes in federal SORA would force ALL states to comply with that federal law. That would render all of these state cases moot. As you said, a different judge might have been expected to simply throw out Michigan’s old SORA law completely in light of how many unconstitutional provisions it included.
Gerald
Do not dismiss the right. Almost all of the Republicans have been siding with the Dems on some major issues lately. I forget the last decision on the news lately but whatever it was, all but one voted yes.
Gerald:
I posted a longer response on this litigation than expected on ACSOL’s site.
The one factor that everyone is overlooking is monetary compensation. I am not certain at this point if monetary compensation is viable but believe it most likely will be after this case ends. This is one of the reasons I believe they are pushing for a final judgement before they deal with the new law.
Go to the Oliver Law Groups website. I have been following it since they became the attorneys in Does. They started out as a generic law firm. After joining the Does litigation they became the guardian of registrant rights and now they have reinvented themselves again as specialist in “mass torts”, “class actions” and “human rights”. It appears that they are expecting a big payday. This could be because of other litigation that they are involved in. I believe “human rights” could allude to Does. I believe that there is a better than 50% chance that the Does litigation has forced them to repeatedly refocus and rebrand. You have to remember that the ACLU does not seek monetary compensation. Why bring the Oliver Law Group on board after you have won on the merits?
They cannot ask for monetary compensation in the current litigation and can’t request monetary compensation until after Does is final and Michigan forces people to register that the courts ordered removed. If they ask the court to address the new law in this litigation, they cannot request monetary compensation in this litigation because Michigan did nothing before Does is final.
In order to seek monetary compensation Does must first become final. THEN AND ONLY THEN, after Does becomes final, if Michigan compels the persons removed by these various court orders to register, then they will have an argument for monetary compensation. If Michigan does not compel them to register, they cannot seek monetary compensation. If they voluntarily register, they cannot seek monetary compensation.
Where Michigan will be once Does becomes final will bring Michigan to an important crossroads. They can enforce the new law against the registrants removed by the court decisions and face the possibility of a monetary judgement or they can abide by the court’s decisions and remove thousands from the registry.
And this comes to a third factor and why I don’t like to communicate in posts that turn so lengthy that no one reads them but I will briefly get into that factor.
There’s a lot going on that most registrants are unaware of. Most prosecutors know that these laws are unconstitutional and many FTR’s are dropped when registrants challenge them in court. Registrants read about the ones getting long prison sentences for FTR’s but overlook the majority that get dropped by the prosecutors. So many FTR cases have been dropped in Michigan that you rarely read about FTR’s in Michigan anymore. This may be in part due to our new attorney general Dana Nessel. You have to remember that Dana Nessel stopped all simple marijuana possessions when she became attorney general. Bill Schuette was the hard ass attorney general to the extreme and the reason that Michigan refused to comply with Does I and forced the ACLU to file Does II. Dana Nessel has shifted Michigan away from this foolish hard-assed BS and has made clear that she will fully comply with the law even if she disagrees with it. This doesn’t mean she won’t delay complying with the final order. You have to remember she is up for re-election in 2022. She can blow her 2022 re-election by taking thousands of people off the registry in 2021. I hope she buys time to get re-elected in 2022 and we have out great sex offender registration reckoning in 2023 which might screw Whitmer in the 2024 election.
Now I’ll get into the third factor and that’s all off the registrants who comply with the registry and plead guilty to all of these FTR’s and the prosecutors who dismiss these cases. This is also what creates a lot of negative feedback towards me on these forums. If every registrant challenged every FTR and if every prosecutor fully prosecuted FTR’s to the fullest we would have had a U.S. Supreme Court decision long ago that would have either ended the registries or at least brought them within constitutional limitations. I can understand that registrants don’t want to take the risk of going to prison for refusing to register but by complying with these laws they are only kicking the can down the road and delaying the day the day the U.S. Supreme Court takes on this issue.
A lot of prosecutors recognize the registry for what it is (I’m not discussing the prosecutors who believe the registry is constitutional). They file FTR’s as a matter of routine, the registrant raises his constitutional objections, the prosecutor concedes and the case is dismissed. This also kicks the can down the road. If both the registrant and the prosecutor stand their ground then you get an appellate decision.
I posted a long way since getting into where Michigan will be after the final order is signed but had to go off on a tangent so everyone understands my reasoning.
The third and most important factor is that more than 99% of registrants will comply if Michigan forces them to register in contravention of the court orders. By complying, Michigan will argue that they “voluntarily” registered and should be barred from monetary compensation. This will force their attorneys to argue that failure to comply is a criminal offense so their registration wasn’t voluntary. Long story short, those who refuse to comply will automatically be eligible for monetary compensation if the court rules that they are eligible for monetary compensation. Those who comply risk losing monetary compensation if they comply.
Keep in mind that it is very premature to discuss monetary compensation and I only bring this up because I see the litigation going in this direction. If the ACLU didn’t bring the Oliver Law Group on board I wouldn’t even be going into detail about monetary compensation. And it’s not just seeing the Oliver Law Group being brought into the picture but it’s seeing the Oliver Law Group repeatedly rebrand itself in this direction after being brought on board that leaves me to believe that monetary compensation will be the driving issue if Michigan fails to abide by the court’s various orders in the near future.
You have to remember that thousands of people are off of the registry today thanks to these various court decisions. The 6th Circuit decisions are final. Every registrant affected by the 6th Circuit decision is legally off of the registry. When the Does litigation becomes final everyone affected by that decision will be legally off of the registry. The ACLU telling everyone to continue to register is prudent advice because the ACLU cannot be held responsible if Michigan continues to defy these court orders the same way Bill Schuette did.
And this is why so many people are confused and impatient. They are like the kids in the car that keep asking, “are we there yet?”. They must realize that this is a years long process that Bill Schuette dragged into a more than decade process.
When Does becomes final this will bring the registry to an end for thousands of people if Michigan fully complies with these various court decisions. Michigan still can compel them to register in direct contravention of these court decisions at their own peril because I believe that monetary compensation will be litigated in the new litigation. My recommendation to them if they choose to comply is to register with a smile because they may be getting paid to register. You have to remember that in order to receive money for damages you must prove damages and your word post hoc doesn’t carry a lot of weight. Registrants interested in monetary compensation must keep a journal, get affidavits from witnesses to any jobs lost, harassment, etc. to prove damages. If you are harassed it will be important to file police reports even if a crime isn’t committed. If the police refuse to file a police report, send them a certified letter and keep a copy of the letter and the post office’s green card. Do not send any of your documentation to any attorney unless an attorney specifically requests your documentation. And if they do, only send copies. Never send originals. Attorneys usually cannot be held responsible for losing your documentation. If the attorney asks for the originals, keep copies and deliver the originals in person. Hand them directly to the attorney and not office staff.
If I could predict the future I would put all of my money in stocks, but I can’t predict the future so don’t know where this will go after Cleland signs his final order. I can see the direction that this is going in and am convinced that monetary compensation will be the driving issue in the coming years.
Detroit, I don’t think we have to worry about the state trying to claim that any particular registrant voluntarily complied. Punishment is written right into the law. The letter I and others received from the State Police amounts to an order to comply from state authorities. And the threat of imprisonment to anyone who fails to comply is clearly the kind of coercion that renders any claims of voluntary action impossible to prove in court. I would surely be happy to see monetary compensation for people harmed by the old law, but I am dubious that it will happen. It took a new law to finally obtain compensation for people who were wrongly convicted, Government is granted a great deal of immunity from monetary lawsuits. For example, I would not be able to prove in court that I was forced to leave my hometown a few years ago because the school zone exclusion prevented me from applying for jobs in those zones. I couldn’t prove with certainty that the numerous rejections I got from employers were because I was on the registry. And even if I could, a judge could simply rule that my own past criminal behavior was the real cause for my inability to obtain employment. But I will hope that you are right. It would be great if this class action lawsuit would produce a monetary class action settlement. I am sure that the state of Michigan will appeal any monetary lawsuits for years, running up the bill for the lawyers and leaving little left for those harmed by the unconstitutional law.
A very thought-provoking comment, Detroit. I have one question. You repeatedly spoke of the state forcing a person to register. They physically can not do that. They can only threaten arrest, or arrest after the fact. The former is coercion that needs to be well documented. In the latter case, the injury is an obvious false arrest and loss of liberty.
So in order to press the point, people must be willing to risk arrest. Even if it ultimately turns out to be false, that represents a huge life disruption. That is a tough decision for lots of people and getting mass resistance will be understandably difficult.
Fortunately it might only take a few if the state is actually defying a binding court decision. It will be uncomfortable, and perhaps expensive for those few. Certain persons may be in a position to weather a short jail stint for this cause. Some legal preparation up front would certainly reduce any pain and grease the legal skids. After a documented threat, a cease and desist petition might even be enough to deter the state. They would be on notice that an arrest would be in defiance of the court; and courts don’t look kindly on that. This could be a Dirty Harry go-ahead-state-make-my-day preemptive strike.
There may be interesting times (remember the Chinese “curse”) in Michigan. Good luck to you all.
Veritas.
So this order’s a win for registrants but not a final order as the link suggests. Right?
It is going to be interesting to see how long these courts will tolerate Michigan giving them the middle finger and basically ignoring their orders. Unfortunately, I don’t see a court punishing the state of Michigan or even getting aggressive in enforcing their own orders.
You are right, JoeM. Would have been nice if the federal court had just thrown the Michigan registry out once it determined that so much of the law was unconstitutional. Hitting the ball back and forth across the net like this ignores the fact that people’s lives are affected by all of this. People have been murdered simply because their names were on a public registry.
To my mind, Tennessee who is the greatest possibility because they’re not treating out of stators as differently as some of these other states do. They’re just tagging on a minimum time that you are on their registry. Problem is that they also impose the residency restrictions in the Internet restrictions and stuff like that which a place like Georgia doesn’t do for someone convicted before say 2009 because their courts told them that they couldn’t. But in Georgia you have to petition the court to get off and unlike some other states I have heard that they treat out of staters okay. The worst I was told his one lawyer said he would not even submit a request to the court unless you had been living in Georgia for at least a year. I had other lawyers tell me that if you picked the right county, the fact that I had old connections to Georgia and was going to bring a little bit of money into the state with me would probably work. But Either way, you have to do it in a good county, preferably an urban one. There’s one lawyer in Georgia he’s more expensive than the other people but he practices in the county where I would have a place to stay for at least six months for minimal money. So if I can ever make that happen, I’m just gonna go up there and live there until I get there deal done and then buy a house wherever in Georgia. Even if that fails I might still go and just buy some place out in the country because they don’t have the Internet restrictions and what have you in Georgia so you can have some small degree of online anonymity and maybe you can run a little business using a fictitious name and not have the critical social networks like Instagram kicking you off every three days. Technically, I guess that I am still required to be on the “federal registry” until 2025, but if you’re in a state where you don’t have to register how the hell do you get on the federal registry?
JoeM
What interner restrictions? Are you on probation? I look at what ever the Heck I want on the internet as much as I want, when,where, how, and as long as it is not illegal to anyone else, what can they do about it?
Internet restrictions being that you have to report any and all emails screen names etc. to the government so that they can then turn them over immediately to social media companies that ask for them. That’s why you get kicked off of Facebook within three or four days after signing up if you use one of those email addresses that you have given to the states.. you also have to abide by the thousand foot rule even if you were either never required to follow that rule or you were only required to do it while on probation. Of course we see that same thing in Florida with these cities and counties that can effectively impose a lifetime residency restriction on anyone even people that the state says that they can’t apply it to retroactively because it was A condition of special probation for them a.k.a. punishment. I am still confused as to why the advocacy groups have never argued that or if they have, they have been unsuccessful.
JoeM
Oh ok yeah I have to do that too. Sorry I misunderstood and thought you were having to report every website you go on. Some on probation have to do that.
I did but when I was on probation, at every visit the P.O would scan my computer for porn even though I did not even own a computer before I was arrested. And I had no internet or porn related charges.
JoeM:
Don’t expect much from Cleland. When he was St. Clair County prosecutor he was famous for punching below the belt and stooping to the lowest level to gain a conviction. Look what he did to Frederick Freeman.
He should never had been made a federal judge. Even though he mellowed out as a judge, probably because he has a lifetime appointment, it’s better that a different judge take on Michigan. It’s best in this case to get a final order in Does and wait for a different judge in a different case.
I want to add some information that may back up my cautions about getting overly excited about this Order by Judge Cleland. The first thing to look at is the title of the Order:
“OPINION AND ORDER GRANTING IN PART PLAINTIFFS’ “MOTION FOR
JUDGMENT” AND PLAINTIFFS’ “AMENDED MOTION FOR JUDGMENT” AND
DENYING DEFENDANTS “MOTION TO CLARIFY INJUNCTION”
On page 1, the judge explains what the Order is in response to:
Pending before the court are Plaintiffs’ two motions requesting the entry of a final judgment in the case. 1 (ECF Nos. 99, 107.) Defendants have also filed a competing motion requesting the entry of an order “clarifying” and extending the interim injunction already in place.
(ECF No. 113.)
On page 6, the judge said, “The new SORA became effective March 24, 2021, and all parties acknowledge that the new SORA removes or modifies all provisions that this court found to be unconstitutional in
its February 14, 2021 opinion in Does II.”
Th judge notes that the new act removes or modifies unconstitional provisions. It didn’t completely replace the old law. The lawsuit was always about “disputed provisions of the old SORA,” (Page 11), not about the entire law.
We can see that this is not, by itself, the Court’s final order from Page 17, “The final order will provide a single document defining what violations of the old SORA can be prosecuted in the future.” That certainly implies that the judge has no intention of trashing the old law’s provisions entirely.
The final page of this decision, Page 23, says the most important thing about the final order: “IT IS FURTHER ORDERED that the parties in the next 21 days must meet and confer on the contents of the final
judgment. Plaintiffs must submit a joint, proposed form of judgment encapsulating these rulings by July 12, 2021.”
Nothing has been set in stone YET with an official final order of judgment. The reason that the judge wrote such a lengthy Opinion in response to court motions is because he is telling the parties EXACTLY what he expects them to put in their recommended final judgment. By the way, the judge is not obligated to accept their recommendations. He may write an independent himself. Or the parties may be unable to agree on one, then submit one from the plaintiffs and one from the defendant, and still leave it up to the judge to decide the final judgment.
Some good info here on what the Michigan Legislature actually passed:
http://www.legislature.mi.gov/(S(x2qid0y2djzqc4somft0filx))/mileg.aspx?page=getObject&objectName=2020-HB-5679
Particularly the pdf Summary as Reported From Committee (12/1/2020).
http://www.legislature.mi.gov/documents/2019-2020/billanalysis/House/pdf/2019-HLA-5679-0EC6B505.pdf
Page 5 talks about which provisions were actually repealed by the Act, which amount to repeal of the school exclusion zones and the handling of juveniles required to register.
You will note at the start that the Bill is described as, “House Bill 5679 would amend the Sex Offenders Registration Act (SORA).” The new Act didn’t repeal and replace the old SORA, it simply amended it. I encourage everyont to read Page 7, because it outlines where the new bill fails, and the fact that sex offender registries do not accomplish any goals of making society suffer. On the contrary, they merely stigmatize offenders who have served their time and have extraordinarily low rates of recidivism.
The judge’s final Order of judgment in this case is yet to come. I hope the state’s response in July irritates the judge enough so that he completely throws out the old law and frees us from the registry, but I really don’t think he will go that far.
Gerald, you may want to carefully proofread your comments before submitting them. You wrote above “…. sex offender registries do not accomplish any goals of making society suffer.”
True – the SORs make Registrants suffer, not society.
Thank you David. I meant to say “safer.” The price I pay for typing with fat fingers on my phone instead of the computer keyboard.
Cherokee look at this retroactive order or ordeal this way. Yes many can preach and sure what is everyone preaching about in many ways. FAC is right if one understands in this good news judicial ordeal. In other words do we meditate or prostinate about the rights of others or are authorities going a bit above human rights or governments endeavor to justify what is right and yes we all have a conscious. Nothing wrong with fighting for justice, rights, or truth in justice.
Sure no one wants another person to lay a trap or entrapt upon another whether thru say via the internet or even in a one on one contact situation even in these situations, or are we all guilty. Even Gerald mentions something about not getting excited. One should understand we all have to be bold to face the many trials in life. Sure these obstacles are not easy and are devilish even if its trying to justify preventing to save one one in much of this masquarade or who is pre-judging in many issues today.