SORA Update – Failure to Register as a Sex Offender Questions
A recent decision of the United States District Court for the Eastern District of Michigan has changed the ground rules for Michigan’s Sex Offenders Registration Act (“SORA”).
The Court’s opinion discusses the history of SORA and the Tier registration requirements. Specifically, the court notes that tier classifications are based solely on a registrant’s offense and do not factor in an individualized determination of risk. Tier I offenders must register and comply with SORA obligations for fifteen years; Tier II offenders must register and comply with SORA obligations for twenty-five years; and Tier III offenders must register and comply with SORA for life.
The plaintiffs in the recent case are Michigan residents who are Tier III offenders and thus required by law to register as sex offenders and comply with SORA for life. Plaintiffs claimed that the retroactive nature of SORA, its extensive reporting requirements and prohibitions, and its broad application violate their constitutional rights.
The registration requirements under SORA are highly complex and controversial. A charge for Failure to Register as a Sex Offender can happen even though a registrant thought he or she was in compliance or because of an inadvertent mistake. Unfortunately, courts throughout Southeastern Michigan routinely order jail or prison for even technical violations and a strong defense is necessary to these allegations.
The court granted in part the relief requested by the plaintiffs. The findings are summarized below:
- SORA infringes on the constitutional right to parent because it’s prohibitions on loitering on school property are unclear. To that end, the court found, “SORA’s vagueness leaves the court unable to determine to what extent SORA infringes on Plaintiffs’ right to participate in the upbringing and education of their children.”
- The requirement to report “in person” if the registrant establishes “any electronic mail or instant message address, or any other designation used in internet communications or postings” is unconstitutionally burdensome.
- The term “routinely used” relative to the necessity to report email addresses is unconstitutionally broad. A reasonable person would be unable to determine with sufficient certainty what “routinely used” means and it may mean different things between law enforcement, courts and prosecutors.
- SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured. Accordingly, due to SORA’s vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to a greater extent than is required by law or risk violating SORA.
- SORA’s present definition of “loiter” is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained.
- Plaintiffs challenge the requirement that a registrant must (1) “notify the registering authority . . . immediately after . . . the individual purchases or begins to regularly operate any vehicle,” (2) must report “[a]ll telephone numbers registered to the individual or routinely used by the individual,” (3) report “[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual,” and (4) report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vessel is habitually stored or kept.” Plaintiffs assert that the terms “routinely used,” “regularly operated,” and “habitually stored and kept” are unconstitutionally vague. The court agreed and found that SORA’s vagueness leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered.
- The Plaintiff’s argued that SORA should not be a strict liability offense and there should be a requirement for the government to prove that the registrant was notified of the registration requirements. The court agreed and noted, “SORA was not enacted to serve as a trap for individuals who have committed sex offenses in the past (and who already have served their sentences). Rather, the goal is public safety, and public safety would only be enhanced by the government ensuring that registrants are aware of their obligations.”
- The retroactive application of SORA’s lifetime registration requirement is constitutional.
- SORA’s geographic exclusion zones provisions in Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional.
- The requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional.”
- The requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(h), is declared unconstitutional.
- The requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws § 28.727(1)(j), is declared unconstitutional.
Defense Attorneys Experienced in Defending Charges of Failure to Register as a Sex Offender in Michigan
If you are charged with or being accused in Michigan with Failure to Register as a Sex Offender, you need lawyers who will fight for you and not sell you out. Don’t trust your fate to the lowest bidder and hire a fighter! Call LEWIS & DICKSTEIN, P.L.L.C. today at (248) 263-6800 for a Free Consultation or complete a Request for Assistance Form and an attorney will promptly contact you.