Michigan: Ready to go another round?
By now we should all be familiar with what’s taking place in Michigan. After having its registry declared unconstitutional all the way to the 6th Circuit (and then the Supreme Court, which denied Certiorari), the state’s legislators have been trying to craft legislation that would pass constitutional muster. They have been trying unsuccessfully.
Their latest attempt will be House Bill 5679. a copy of the most recent legislative analysis can be found here: https://www.legislature.mi.gov/documents/2019-2020/billanalysis/House/pdf/2019-HLA-5679-322C0DAA.pdf
The most glaring concern is that it would allow the State to publish email addresses and internet identifiers on the public registry.
If Michigan didn’t have such a strong track record of failing to pass sex offender legislation or getting their laws struck as unconstitutional, I would be investing more concern into this bill. If it does pass, I’m sure Miriam Aukerman and the ACLU of Michigan will be right there to strike it down again!
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Josh:
You can file as many 406 petitions as you want. They are filed in state court and you don’t need an attorney to file one. You can file a 406 petition today.
If you are part of the Does II litigation, you can wait for the final order to be removed and it will cost you nothing. You might get off of the registry quicker by filing a form 406. The law firm handling Does II is the Oliver law group in Troy. They can give you a rough idea if you will be removed or not. A determination can be complex so you have to hire an attorney to get an argument that is specific to the facts and law of your case. If you have no felony conviction after your sex conviction you are most likely a mandatory removal.
It appears that Does II will become final in 2021 or 2022, so you are not far off for removal.
@Detroit…you are correct about filing a 406 as many times as you want. I met with my lawyer today confirmed as much. The mandatory removal part is not factual according to my attorney. The fact is that my attorney is 99% sure that no state level judge will move on a 406 until the adjudication of Does II is complete. I have filed similar requests with MSP and they won’t remove until adjudication is complete either….if I have this wrong then apologies.
P.S. Remember, that if you are affected by one or more of these court decisions, removal from the Michigan registry is MANDATORY. The judge cannot deny removal.
THIS IS THE ACCURATE WAY TO GET OFF THE REGISTRY IN MICHIGAN IF YOUR OFFENCE PREDATES JULY 1, 2011.
I don’t know the exact percentage of registrants who are eligible for removal but feel it’s most likely well above 90% if not 95%. The ones who are ineligible for removal are the ones who have a felony conviction after their sex offense conviction through the “recapture” provision.
I have given directions to several registrants who have successfully been removed from the registry.
The form needed is called “MC 406a”. It is only one page and takes less than 5 minutes to fill out. You fill out the form, mail a copy to the prosecutor and send the original and proof of service to the court. Show the judge a copy of the court’s order and explain why you are a mandatory removal. I suggest that registrants obtain a certified copy of their court records in their underlying sex offense case because whether you are required to register or not, sometimes depends on a date, either the offense date or the conviction date or which law was in effect at the time. I don’t think anyone I talked to got certified copies but I always suggest it.
If your offense date preceded October 1, 1995 AND you were not on felony probation or parole on or after October 1, 1995 and have no felony conviction after your sex offense, you are off of the registry. That’s easy. The rest take time to determine if they are required to register or not.
If your offense date is between October 1, 1995 and July 1, 2011, it depends on the facts of your conviction and the dates of either your offense or conviction and the law in effect at the time.
I have tried to help several determine if they were a mandatory removal or not. It usually takes several hours of research and I have had some lie to me on facts so have spent a lot of wasted time with some registrants. The process entails reading several court decisions and figuring out which is relevant, knowing the facts of the case and which law was in effect at either the time of offense or conviction.
These are a couple of fact situations that got some people off of the registry:
A guy had a child porn case in 2008. This was a 10 year registration at the time of his offense but he was placed on the registry for 10 years and the for life due to a change in the law. He filed a petition and the judge ruled he was a mandatory removal and ordered him off of the registry.
A guy had a case from the 90’s. He had his girlfriends 3 year-old perform oral sex on him in the bathtub, was charged with CSC I (penetration, life offense) and pled to CSC II (probationable, non-penetration offense). Even though what he pled to was a 10 or 15 year registrable offense (non-penetration), the police place him on the registry for 25 years (only for offenses of penetration of a child under 13) and he was eventually placed on the registry for life due to a change in law. His offense was pre1995 but he was on probation on October 1, 1995 so had to register. He was on 5 years probation when the registration law passed. The judge ruled that he was only required to register for 10 or 15 years (I don’t recall which) because he didn’t plead to the offense that required 25 years registration so he was a mandatory removal.
A registrant originally from Michigan picked up a case for having consensual sex with a 16 year-old in California and was on the registry in California. The age of consent in Michigan is 16. The judge ruled that because his crime wasn’t a criminal offense under any statute in Michigan, let alone one that is registerable, that he must be removed from the registry. This guy had an attorney. You do not need an attorney to file a 406a petition. If you have an easy case you can appear yourself. If you screw up, you can always have an attorney refile your petition. If you cannot figure out if you’re a mandatory removal, you should retain an attorney.
Some of these issues I plan to address in court but haven’t gotten to many of these issues yet. I am hoping an out of state offender gets denied so we can get a Michigan Court of Appeals or Supreme Court decision on this issue. I am developing several arguments for several issues to present in court. As I pull this thing together and get more persons involved, things will speed up.
Unfortunately, this is a one man operation and I am that one man right now,so am quite limited in what I can do. There are also other causes I am active in.
I own several houses and my houses take precedence over the causes I am involved in. I’ve tried to get people to assist, but no one has panned out yet so things have to wait until my houses are settled so I can get to this project. Legal research takes up a lot of my time and if I could get assistance with the legal research, this would move things along quicker. I am looking for a building to turn into a homeless shelter for registrants. Once I get this, the website, office and phone set up, things will move along a lot quicker. I can reduce someone’s rent to help me on this project. I did reduce a registrant’s rent to do the computer work but he doesn’t want to become involved in the other aspects of this project.
Josh:
Persons who were on probation or parole on or after October 1, 1995 are the few who remain on the registry with offense dates predating October 1, 1995. If your case was in 1994, you most likely were on probation parole on or after October 1, 1995 and hence not in the same category as the offenders who completed their probation or parole prior to October 1, 1995. Read the statute and court opinions.
I sent out over 2,000 letters to persons on the registry in Michigan to get meetings going and received over 100 responses. I have been in contact with more than 400 registrants in the last 3 years, am familiar with the statutes and court decisions, so have a pretty good grasp of the situation.
Everyone that I am personally aware of who had completed their probation or parole prior to October 1, 1995 are off of the registry. Registrants whose offense date is between October 1, 1995 and July 1, 2011 is most likely eligible for removal by filing a 406 a. petition. I have made several registrants aware of the petition and the ones eligible have been removed.
I AM NOT GOING TO CITE THEIR NAMES BECAUSE THAT IS THE VERY REASON FOR REMOVING THEM.
I am aware that there are several thousand people eligible for removal who continue to be on the registry. This is for 2 reasons. First, there isn’t a final order in Does II and many simply are unaware that they can petition for removal. I am alone in this fight and don’t have the time or money to reach out to the 36,000 people on the registry to advise them of their rights.
REST ASSURED, MY INFORMATION IS ACCURATE. I am not getting paid to help registrants. In fact, I have put several thousand dollars of my own funds into helping them. Do the math. I sent out over 2,000 letters to registrants in Michigan. That mailing alone cost me over $1,500. I have spent over $200 in the last 3 months in postage alone. I have purchased a building I will be turning into an office. I will be dedicating a portion of that building for office space to fight the registry. As soon as I have a reliable person, I will be setting up a helpline for registrants. I have had a registrant living in my rooming house for more than 3 years FREE OF CHARGE while he gets his life together. At $500/month, I have given up over $18,000 in rental income had I had a paid renter in his place. I have been encouraging a registrant in Indiana to fight FTR’s for years because I am convinced that this registrant is not required to register. The registrant’s court-appointed attorney refused to listen to this registrant’s arguments and reached a plea deal for this registrant to serve 4 years in prison for an FTR. I loaned this registrant $10,000 in September to hire a private attorney to raise this registrant’s claims in court. I had a nice house for rent in Genesee Township that I rented to a registrant for $450/month when the market rate is $900/month to help this registrant and to get someone to help with computer work for this cause. I have never been on the registry or effected by it and yet have done more than 99% of the people on the registry for this cause. What have you done for this cause let alone to get yourself off of the registry. I have people contacting me on almost a daily basis because they believe I run a free service and I don’t. I am behind responding to more than 100 letters because I have been helping other people. You are like the many others expecting me to drop everything and get them off of the registry then get angry because I don’t have the time to help them for FREE. If you want to get off of there registry research the 406 a. petition and the court cases or hire an attorney to do it. If you are not willing to do this much, then you are not interested in getting off of the registry.
In addition to everything else I do, I try to stamp out all of the misinformation on the internet and replace it with accurate information and replying to your post is one more piece of misinformation that I have had to respond to.
YES, REGISTRANTS ARE BEING REMOVED FROM THE REGISTRY IN MICHIGAN!!!
You simply have to take the time to research the 406 a petition or hire an attorney.
The problem is everyone wants something for free. When I don’t drop everything to help some they get pissed off and I even had one registrant file a criminal complaint against me with the county prosecutor for practicing law without a license for helping registrants. This particular registrant had 2 previous cases for sex with children under 13 and after filing the complaint against me picked up another case for having sex with a 9 year-old and is in prison currently for this sex case.
This is all the time I have to answer your post. If you’re not willing to research the info I have put out on this website and others or not willing to hire an attorney, then you’re not that interested in getting off of the registry. Your other option is to await a final order in Does II. In the meantime, stop upbraiding me for helping out and stop posting misinformation on the internet.
Detroit…..Oh Detroit I am very interested in getting off the registry and I DO have a lawyer. I have filed suit in federal court only to have to withdraw that suit on the grounds that I’m already a part of the ACLU class action. My offense date was 93 with conviction being entered in early 94 and still on probation in 95 as you stated….I was aware of the 406 option to petition off but if I’m not mistaken you only get one bite at that apple. In light of the distinct possibility that this shitty legislation gets passed I am consulting with my attorney and will mention the 406. If you’re as devoted to this cause as you say you are then thank you….was just looking for clarification
In Smith, 538 US at 98, the U.S. Supreme Court majority rejected analogies to historical shaming punishments because the stigma of registration results “from the dissemination of accurate information about a criminal record, most of which is already public.”
But they are not disseminating an accurate record since it only shows the crime name you were convicted of and not information on the actual crime committed such as he touched a breast (oh heavens to Betsy!) as opposed to sexual assault II (OMG a monster!). They also don’t state the age at the time of the offense yet show a current picture which is misleading.
Nor are they publishing only public information from the conviction but rather are publishing all manner of current private information that is not published about non-sexual offenders and in fact they are restrained from doing so for other offenders under some state constitutions.
Don’t fear.
We are ready for any legislation to pass in Michigan and fully prepared to respond.