In re TD, the Court of Appeals refused to apply the ruling to juveniles. These Defendants were convicted in the Family Division of the Washtenaw County Circuit Court of second degree criminal sexual conduct. Shortly before the Defendant turned eighteen, he petitioned for relief from the sex offender registry. The Washtenaw judge found that the Defendant did not meet the statutory criteria for removal, but found that DiPiazza made the registry unconstitutional punishment. The Washtenaw County Prosecutor’s Office appealed to this ruling to the Lansing Division of the Michigan Court of Appeals. That panel reversed the trial court’s ruling. They distinguished and somewhat criticized the DiPiazza ruling.
Because of a statutory change, the former juveniles in In re TD, however, were relieved from their registration obligations. Taking the case over at the Michigan Supreme Court level, the University of Michigan Juvenile Law Clinic successfully convinced the Michigan Supreme Court to set aside the Court of Appeals ruling. Click here to see their order. This has created as a "reset" and returned the law to a pre-In re TD state. Congratulations to my friend Professor Kim Thomas of the University of Michigan Law School in Ann Arbor on a job well done!
In Michigan, Mr. Gomez’s attorney (Liisa Speaker of Lansing Michigan) has indicated that she will appeal the ruling to the Michigan Supreme Court. You can monitor the case developments here. To track developments on the basic law, you can click here to see cases citing to the Third Circuit’s decision. Sooner or later the US Supreme Court will have to decide this issue.
While I have focused on the amicus, the Office of the Ohio Public Defender also filed an excellent brief arguing why an offense driven classification scheme is punitive. The OOPD argued that the more rigid the classification system is, the more punitive it is. The Williams Court agreed. While Ohio Courts have upheld predecessor laws, the Court found that the new law passed the boundaries in becoming punitive.
The Court, however, based its decision on a provision contained in the Ohio Constitution (Ohio Const Art II, Sec. 28) which bars the passage of retroactive laws.
That provision provides:
“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”
The Court noted that the new law extended the duration of registration obligations, imposed a duty on an individual to register with multiple law enforcement agencies, and removed the ability to judicially challenge registration obligations. Because the Ohio Supreme Court based the ruling on the Ohio Constitution, there should be no further appeals in this matter.
After reading the ruling, I pulled down a copy of Michigan Compiled Laws and started thumbing through Section IV of the Michigan Constitution trying to find a similar provision. Section IV is our counterpart of Ohio Constitution Article II – it deals with limitations on legislative powers. I couldn’t find anything. I also couldn’t find anything in Michigan Constitution’s Article III dealing with the general operations of government. Section I of our Constitution contains a general ex post facto (“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted”) which might provide the basis for a similar challenge.
The ex post facto limitation has been applied fairly similarly in Michigan. There are also due process cases which contain some language supporting a challenge. In Metro Homes v City of Warren the Court stated that retroactive legislation, which impairs vested rights is a due process violation. In 1992, the Michigan Court of Appeals reaffirmed this principle in Tax Payers United v Detroit. Like ex post facto challenges, the argument will boil down to whether the new law is punitive. In 1988, the Michigan Supreme Court stated in Romein v General Motors: "A remedial or procedural statute may operate retrospectively if it does not `take away vested rights.'" Cases interpreting Michigan’s old SORA law were as clear as mud on this point. The cases whether registration consequences were punitive or remedial were inconsistent. Believe it or not, this actually puts us ahead of Ohio which had uniformly upheld their old law. Notwithstanding this, the Ohio Supreme Court found that the increased reporting requirements, the broad public dissemination of large quantities of otherwise private information, and the expanded restrictions on former offenders pushed the law into the punitive category.
While we have a very conservative Court in Michigan, the Ohio decision gives me hope.
In a surprise defense victory, the Michigan Court of Appeals ruled (2-1) that a criminal defendant can have his guilty plea vacated because he was not adequately informed of the sex offender registration (SORA) consequences of his plea. People v Fonville, Court of Appeals No. 294544. The key holding is that the United States Supreme Court’s ruling in Padilla v Kentucky applies to sex offender registry consequences. A defendant who pleads guilty without being warned about those consequences may withdraw his plea.
In Padilla, the United States Supreme Court ruled that a non-citizen criminal defendant must be informed of any deportation consequences as part of the plea. In adopting this approach, the United States Supreme Court rejected the approach used by many courts that said that “collateral consequences” (no matter how important) do not have to be conveyed to a criminal defendant. The comparisons to deportation are obvious. Like deportation, sex offender registration is not a criminal sanction, but is a extremely severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirement and place of domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.” For these reasons, the Court rejected the notion that the SORA consequences were not part of the criminal conviction.
The secondary important part of the ruling (which isn’t as good) implies that the Court’s prior ruling in People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009) may only apply to individuals who do not have a criminal record, but are still on the sex offender registry.
Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS
The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list. The Kentucky Attorney General’s Office has appealed the ruling to the United States Supreme Court and has sought a stay of the Kentucky ruling pending their certiorari petition. Click here for the ky baker ruling
Individuals convicted of sex offenses in Michigan lives a subhuman life even after they are off parole. Michigan’s sex offender registry forces individuals to register for twenty-five years for most offenses and this registration might as well be the kiss of death. Generally, the Courts have been unsympathetic. In People v DePiazza, Court of Appeals No. 284946, the Court of Appeals finally struck down one application of Michigan’s Sex Offender Registration Act (SORA).
Robert DiPiazza was convicted at the age of eighteen for consensual sex with his then fifteen year old girl friend. (A “Romeo and Juliet” offense). There was no dispute that the act was consensual, the couple subsequently married and are expecting their first child. At the request of the victim’s family, Mr. DiPiazza was given diversion under the Holmes Youthful Trainee act for the reduced offense of attempted third-degree criminal sexual conduct and sentenced to probation. In 2005, he completed the probation and the charges were dismissed.
Despite this, Mr. DiPiazza has been forced to register on the sex offender registry and could not hold a job because he was a “registered sex offender.” A unanimous panel fo the Michigan Court of Appeals found that the law was cruel or unusual punishment as applied.
Congratulations to Miriam Auckerman of Legal Aid of Western Michigan, the ACLU of Michigan, and the many other civil rights groups who won this very difficult victory!
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “ criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.
Michigan’s Sex Offender Registration Act (“SORA”) requires an individual “who is convicted of a listed offense after October 1, 1995, to register as a sex offender.” MCL 28.723(1)(a). The definition of “listed offense” in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that “[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age,” constitutes a listed
Last week, in People v Atlhoff, the Michigan Court of Appeals had the opportunity to clarify what the registration obligations were under this provision. Mr. Althoff had been convicted of downloading child pornography from the internet. The question was whether this act constituted a “sexual offense against an individual who is less than 18 years of age” under the Act.
Previously, in People v Meyers, 250 Mich App 637, 649 NW2d 123 (2002), the Court stated that in catch-all cases, a Court was required to look at the specific facts of a given case to determine whether the Defendant’s conduct fell within the catch-all. In December of 2006, the Michigan Supreme Court remanded Althoff to the Court of Appeals as on leave granted. In its remand order, the Michigan Supreme Court stated in dicta that the language in Meyers was dicta. People v Althoff, 477 Mich 961 (2006). In People v Golba, the Court of Appeals stated that this language was holding. In Altholff, the Court of Appeals found that Golba was wrongly decided because it ignored the remand order in Althoff. In other words, the Court of Appeals created a “wrongly decided” exception to Michigan’s “first out rule.” Because the prior panel failed to detect or credit a suggestion that Meyers was dicta, the decision was invalid. Even though Michigan’s court rules require to follow a post-1990 published Court of Appeals decision, Atlhoff chose not to. In the process, the Court has inadvertently created an exception which will swallow the rule. The authors of this decision will regret their words.