SORA Update – Failure to Register as a Sex Offender Questions

A recent United States District Court decision for the Eastern District of Michigan has changed the ground rules for Michigan’s Sex Offenders Registration Act (“SORA”).

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SORA, Tier Registration, and Failure to Register

The Court’s opinion discusses the history of SORA and 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. Failure to register as a sex offender is a serious crime and is often looked at as a second opportunity to impose a harsh punishment by courts and prosecutors.

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. The 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 they complied 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 regarding Failure to Register as a Sex Offender:

  • SORA infringes on the constitutional right to parent because its 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 was 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 that it prevents 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.
  • Plaintiffs 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 under the Sex Offender registration law 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.
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Finding the Right Defense Attorney

When you’re seeking a criminal defense attorney for a case involving failure to register as a sex offender, selecting someone with the right expertise and background is crucial. One of the primary considerations should be the attorney’s experience handling sex offense cases, especially those related to registration requirements. Cases of this nature come with unique challenges and complexities, making it essential to have an attorney who successfully navigated similar legal terrain. Their familiarity with the nuances of such cases can significantly impact the defense strategy and outcome.

Equally important is the attorney’s knowledge of sex offender registration laws, which are complex and can vary greatly depending on the jurisdiction. An attorney well-versed in these specific laws will be in a better position to understand the intricacies of your case and identify potential defenses or mitigating factors. They should be updated on the latest legal developments and understand how these laws are applied.

Additionally, consider the attorney’s track record in handling similar cases. While past success does not guarantee future results, an attorney who has effectively represented clients in similar situations is likely to have developed strategies and insights that can be beneficial in your case. Their experience in achieving favorable outcomes in cases of failure to register as a sex offender can be a strong indicator of their competence and ability to provide effective legal representation.

The right attorney for your failure to register as a sex offender case should combine specialized experience, deep knowledge of relevant laws, and a proven track record of handling similar cases effectively. This combination will put you in the best position to navigate the legal challenges of your situation.

Using Mitigation and Equitable Arguments During Plea Bargaining and at Sentencing

Criminal defense lawyers can employ mitigation and equitable arguments effectively when negotiating plea bargains for clients charged with failure to register as a sex offender. These strategies involve presenting factors and circumstances that paint the defendant in a more favorable light and appeal to the prosecutor or judge’s sense of fairness and discretion.

  • Personal Circumstances: The attorney can highlight specific personal circumstances of the defendant that contributed to their failure to register. This may include homelessness, mental health issues, lack of understanding of registration requirements, or other life challenges that impede their ability to comply.
  • Lack of Intent: Demonstrating that the failure to register was not intentional can be a key mitigation factor. The defense may argue that it was an oversight, misunderstanding, or due to circumstances beyond the client’s control, rather than a willful disregard of the law.
  • First-Time Offense: If the client is a first-time offender regarding failure to register, the attorney can emphasize this to argue for leniency. First-time offenses are often viewed more sympathetically, especially if there’s a reasonable explanation for the failure.
  • Compliance History: Showing a history of compliance with other aspects of the sex offender registration requirements can be a powerful argument. If the defendant has a track record of generally following the rules and this instance is an outlier, it can be used to argue for reduced charges or penalties.
  • Remorse and Rehabilitation: Demonstrating the defendant’s remorse and commitment to rehabilitation can also be persuasive. This might include undertaking voluntary therapy, counseling, or community service, indicating their willingness to adhere to the law in the future.
  • Community Support and Character References: Providing character references or evidence of the defendant’s positive community involvement can help paint a broader picture of the individual beyond the current charges. This can sway the decision-making process by showing that the defendant is a valued community member with support systems in place.
  • Equitable Considerations: The attorney may also argue for fairness based on comparable cases or the disproportionate impact of the potential penalty on the defendant’s life, including employment, family, and rehabilitation prospects.
  • Negotiation Skills: Effective negotiation involves presenting these arguments, understanding the prosecutor’s perspective, and finding common ground. A skilled attorney will know how to frame these mitigation and equitable arguments to align with the prosecutor’s priorities and the interests of justice.

In essence, a top criminal defense attorney’s mitigation and equitable arguments are about humanizing the defendant and providing context to their actions, which can lead to more favorable plea bargain terms in failure to register as a sex offender cases.

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Defense Attorneys Experienced in Defending Charges of Failure to Register as a Sex Offender in Michigan

If you are charged with or being accused of Failure to Register under Michigan’s sex offender registration law, you need lawyers who will fight for you and not sell you out. Don’t trust your fate to the lowest bidder. Hire a fighter! LEWIS & DICKSTEIN, P.L.L.C. has been fighting to protect and help clients charged with sex offenses and failure to register as a sex offender for decades. We can help you! Call us for a free consultation. We will take the time to talk with you, answer your questions, and work with you to develop a winning strategy. We are not afraid to win!

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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