11-14-17 Michigan:
GRAND RAPIDS, MI - Three Grand Rapids men on Michigan's Sex Offender Registry have settled a federal lawsuit against the state over housing requirements that restrict where they can live.
They had been told they could not live in homes that were within 1,000 feet of a school zone.
Attorney Sarah Riley Howard challenged the school-zone law as vague, and said it is confusing. The settlement comes after the U.S. Supreme Court refused to hear a similar Michigan case.
One of her clients, she said, was told by Grand Rapids Police Department that he and his wife could buy a house only to be told later it fell within a school zone. ..Continued..
Showing posts with label .Michigan. Show all posts
Showing posts with label .Michigan. Show all posts
November 14, 2017
Sex offenders settle lawsuit over living in 'school zones'
October 13, 2017
Fether files federal lawsuit for wrongful SOR placement
See also 10-7: False child porn claim landed man on sex offender registry, lawsuit contends
10-13-17 Michigan:
HILLSDALE — A Hillsdale area native and U.S. Army veteran is suing elements of the criminal justice system in Hillsdale County for wrongfully being placed on the state’s sex offenders registry.
Andrew Fether filed the complaint Sept. 29 in Michigan’s Western District Court with a “jury demand” against all defendant’s listed including Det. Sgt Cynthia Gochanour of the Michigan State Police — Jackson Post, the Hillsdale County Sheriff’s Department, Hillsdale County, Kwinn Leva of the Hillsdale County Sheriff’s Office, former Chief Assistant Prosecuting Attorney Valerie White, and others.
Fether deferred any questions to his attorney, Nick Klaus, who was unavailable for comment Wednesday afternoon.
However, details of his case were made available in a June 2015 interview when he informed The Hillsdale Daily News that he was placed in 2011 by authorities in Hillsdale County because of a federally disproven allegation of child pornography while he served in the U.S. Army. ..Continued,,
October 11, 2017
Michigan Supreme Court Hearing Sex Offender Registry Case
LANSING, Mich. (AP) — The Michigan Supreme Court is hearing arguments in the case of a man who was placed on the sex offender registry for touching a girl's breasts, even though his case was dismissed in 1997 after successful probation and community service.
Boban Temelkoski wants to be erased from the registry. He says he's been punished for decades by lawmakers because his non-conviction has been treated as a conviction. His case was dismissed in Wayne County under a commonly used procedure for young offenders.
The Supreme Court is hearing arguments Wednesday.
Temelkoski says he's suffered. He says potential employers have no access to his old sealed court case, but they can look him up on the registry.
Attorney General Bill Schuette is opposing Temelkoski. He says the registry is not criminal punishment. ..Source..
October 7, 2017
False child porn claim landed man on sex offender registry, lawsuit contends
10-7-17 Michigan:
HILLLSDALE, MI - A former Michigan National Guardsman is alleging Hillsdale County and state authorities insisted on registering him as a sex offender even though he had never been convicted of a sex crime.
Andrew Fether, 31, contends a disgruntled fellow servicemember, as a prank, falsely accused him of having child pornography on his laptop while in Iraq, and the unsubstantiated accusation led to years of unwarranted damage and suffering and a six-month jail sentence.
He filed a federal lawsuit late last month against the county, the county sheriff's office, a deputy, a former assistant prosecutor, three Michigan State Police troopers and two Michigan Sex Offender Registry analysts.
Fether argues law enforcement authorities "deliberately and systematically" both demanded that Fether be placed on the registry and failed to remove his name. This resulted in jail time, prevented Fether from attending his child's school functions and forced him to leave Michigan to find work, states the lawsuit, now pending in U.S. District Court in Grand Rapids.
Sheriff Tim Parker on Thursday declined to comment. The Michigan State Police do not make statements on ongoing litigation, spokeswoman Shanon Banner wrote in an email. ..Continued..
October 3, 2017
Michigan's appeal of sex offender registry law turned back by Supreme Court
-See: Supreme Court declines Michigan sex offender registry case "Michigan's sex offender registry law must be rewritten after the U.S. Supreme Court on Monday let stand a decision that found the state was treating people as "moral lepers" by saddling them with excessive restrictions. ....."10-3-17 Michigan:
WASHINGTON — An appellate court decision saying Michigan can’t impose its sex offender registration law on people retroactively will not be taken up by the U.S. Supreme Court, meaning the law may have to be changed.
As the Supreme Court opened its October term today, justices issued a list of orders, including one saying it would not take up the case on appeal by the state. The U.S. Sixth Circuit Court of Appeals ruled in a unanimous decision last year that the state registration violated constitutional protections against increasing penalties for a crime after their commission and adjudication.
The American Civil Liberties Union of Michigan said the decision by the Supreme Court not to take up the case “effectively requires the Michigan legislature to replace the existing law, thus creating an opportunity to reform Michigan’s registry.”
Anna Heaton, a spokeswoman for Gov. Rick Snyder, said Snyder’s office will “work with the attorney general and Michigan State Police on next steps.”
The Michigan Legislature substantially expanded the state’s Sex Offender Registration Act in 2006 and 2011, creating tiers of offenders, requiring them to report in person as many as four times a year, barring them from being in certain areas such as any within 1,000 feet of a school and forcing some to remain on the registry for life. ..Continued..
April 1, 2017
Yooper barred from visiting home county by court
UPDATE 4-3: see Judge bans man from returning to his hometown4-1-17 Michigan:
BARAGA (AP) — A Michigan man (Yooper) can’t go home again — maybe for as long as nine years.
The unusual restriction was upheld this week by a federal appeals court. When Eugene Rantanen is released from prison this year, he can’t set foot in his home county, Baraga, while under the supervision of a probation officer.
Rantanen was convicted of a sex crime in 2009. He has twice been returned to prison for violating conditions of supervised release.
Rantanen admits that Baraga, a remote and sparsely populated area in the Upper Peninsula, isn’t a good place for him to deal with drug and alcohol problems. He said he doesn’t want to live there, but he objects to being banished for years.
Rantanen, 28, said he won’t be able to visit his elderly mother or attend funerals and family events. He’s a member of the Keweenaw Bay Indian Community.
“Family connections, tribal relations and religious practices are all important supports to a person who has addiction issues,” his lawyer, Elizabeth LaCosse, said.
The appeals court acknowledged that “exile is not a pleasant experience.” But it said Rantanen has a history of bad decisions when using drugs and alcohol.
“It may well be that a clean break from Baraga County is necessary,” Judge Danny Boggs wrote for a three-judge panel.
The restriction was ordered by U.S. District Judge Paul Maloney, who said he might revisit Rantanen’s supervised release after five years. The appeals court said Maloney could consider easing the restriction in a family emergency. ..Source.. by Oakland Press
March 1, 2017
Argument preview: Removal of an immigrant for “sexual abuse of a minor”
3-1-17:
Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”
The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend.
He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years.
Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime. ..Continued.. by Kevin Johnson
February 14, 2017
2 children saved, 22 people arrested for human trafficking during Detroit auto show
Undercover agents identify around 14-15 potential adult victims
DETROIT - Glitz and glamour stole the spotlight at the North American International Auto Show in downtown Detroit, but something sinister was going on under the hood.
A police investigation revealed a human trafficking operation during one of Detroit's most popular events.
Now that the auto show is over and the undercover operation is complete, the FBI is sharing exactly what happened in Detroit and its suburbs. In some cases, it even involved children.
The operation was kept quiet as 12-15 police agencies worked together during the auto show last month to catch human traffickers and save lives. During the auto show, agents said, there's typically a 150 percent jump in the number of people offering sex.
At the time of year when the world descends on Detroit, auto show insiders, reporters and prospective customers bring a huge mix of a crowd that can be tempting to some people.
"When you're drawing in a large number of people, and more specifically, male clientele, they're traveling away from their families," Michael Glennon, supervisory special agent for the FBI, said. "They tend to flock to situations such as that."
Glennon said those situations include hiring women for sex, but it isn't always prostitution. Many of the women trafficked during the auto show are young girls and minors.
"There's typically 200-250 advertisements per day," Glennon said.
Glennon is part of the Violent Crimes Against Children task force and coordinator of the human trafficking division.
"The network is becoming more and more complex," Glennon said.
He said the pimps and human traffickers work together, warning each other online and on social media when the FBI is getting close.
"The weather reports are police activity," Glennon said. "So if there are thunderstorms in Canton or it's cloudy with a chance of rain in Romulus, they are illustrating that there is police presence or anticipated police presence. (It's) a way of warning everybody."
Glennon said the offenders know the tags of police cars and have pictures of FBI vehicles. He said they'll often post that information online.
Undercover agents made arrests at cheap motels and fancy hotels during the auto show.
"Be it from Southfield to Warren to Sterling Heights or down to Romulus," Glennon said.
The three-day undercover operation was a success.
"(We) identified four to five pimps or exploiters and made 22 arrests during the period," Glennon said. "We identified approximately 14-15 potential adult victims of human trafficking. We were able to recover two children involved in sex trafficking." ..Continued.. by Karen Drew
November 15, 2016
Justice denies Michigan’s appeal to halt sex offender ruling
11-15-16 Michigan, Washington DC:
LANSING, Mich. (AP) - A U.S. Supreme Court justice on Tuesday denied Michigan’s request to halt a lower court decision that found the state unconstitutionally put new restrictions on registered sex offenders long after their convictions.
Justice Elena Kagan’s decision means law enforcement can no longer retroactively enforce 2006 and 2011 changes to the country’s fourth-largest sex offender list while the state pursues an underlying appeal in the high court, said Miriam Aukerman, an attorney with the American Civil Liberties Union of Michigan.
The 6th U.S. Circuit Court of Appeals in August said Michigan’s revisions, which included restricting sex offenders’ movements near schools and listing many on the registry for life, retroactively penalized offenders as “moral lepers” and there is “scant” evidence that the law accomplishes goals such as reducing recidivism. Kagan rejected Michigan Attorney General Bill Schuette’s emergency appeal to block the ruling. His office still plans to ask the high court to review the appellate court’s decision.
In a filing last week, Schuette warned that the 6th Circuit’s ruling would take effect early this week unless a stay was granted. He said the state should be able to appeal “without being forced to make costly, time-consuming, and complex changes to its sex-offender registry and enforcement protocols that may prove unnecessary should this Court decide to grant review.”
A Schuette spokeswoman said the office was reviewing the decision. A message seeking comment was left with the Michigan State Police, which maintains the sex offender list. It has 42,900 registrants, including more than 39,000 whose names and photos are shown on a searchable public website. About 10,700 are incarcerated.
“Police should not be enforcing parts of the law that the court said are unconstitutional,” Aukerman said. “Our registry is broken, and Michigan families deserve public safety measures that actually work - not a failed, ineffectual system that stigmatizes people who are not a threat.”
The state began prohibiting registrants from living, working or loitering within 1,000 feet of school property in 2006. Five years later, lawmakers required that offenders be divided into three tiers based on the seriousness of their crimes, rather than on individualized assessments. Many offenders must be listed on the registry for life under the changes.
The lawsuit was brought by the ACLU and the University of Michigan Clinical Law Program on behalf of six people who are on the registry for life, including some who were older teenagers who had sex with underage teens. It is unclear how many thousands of offenders will be affected by the case.
Critics argue that the registry, initially created in 1994, lists so many people that it does not identify the truly dangerous offenders. ..Source.. by DAVID EGGERT
September 14, 2016
Michigan: Court goofed and should reopen sex offender case
LANSING, Mich. (AP) — The attorney general's office is asking a federal appeals court to reopen a dispute over Michigan's sex-offender registry.
The court recently said Michigan is illegally treating many sex offenders as "moral lepers" by putting additional restrictions on them long after their convictions. But in a new filing, the state says the court overlooked a key decision from 2007 that should have led to a different result.
Before saying the 2007 TN case would change the court's decision, one has to compare the 2007 TN registry requirements with the MI amendments (made in 2006 and harsher ones in 2011).It's a case about electronic monitoring of sex offenders in Tennessee, a retroactive policy that was upheld by the court. The state admits that its lawyers also overlooked that decision.
In 2006, Michigan lawmakers restricted people from being near schools. More restrictions followed.
Miriam Aukerman of the American Civil Liberties Union says the appeals court rightly found Michigan's registry is "ineffective and unconstitutional." ..Source.. by Staff
Michigan asks federal court to revise opinion on sex offender registry rules
The state of Michigan wants a federal appeals court to take a second look at an opinion on the state's sex offender registry.
The U.S. Court of Appeals issued an opinion Aug. 25 saying Michigan's sex offender registry rules cannot be applied retroactively to thousands of sex offenders. The state Attorney General and Solicitor General offices filed a Sept. 8 request with the federal appeals court for a second opinion.
The original opinion said it's unconstitutional to impose new restrictions on people convicted before the state's registry law was updated in 2006 and in 2011.
Michigan began prohibiting registrants from living, working or loitering within 1,000 feet of a school in 2006. Five years later, lawmakers added requirements that offenders be divided into three tiers based on the seriousness of their crimes.
"The State seeks a panel rehearing to correct an error of law and to bring to this Court's attention a prior published and on-point opinion by this Court," the Sept. 8 filing states, claiming the court's opinion is in conflict with the 2007 case, Doe v. Bredesen.
The court held in that case that "continuous GPS monitoring and retroactive reclassification of an offender as a 'violent sexual offender' were not punitive and thus did not violate the Ex Post Facto Clause, using reasoning that is in strong tension with and in places contradicts this Court's August 25 opinion," the Sept. 8 filing reads.
A court battle on the issue began in 2015 in Michigan when the Michigan American Civil Liberties Union filed a lawsuit against Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue in U.S. District Court in the Eastern District of Michigan.
The suit lists plaintiffs "John Does #1-5" and "Mary Doe" and claims the Sex Offender Registry rules had a significant impact on them.
U.S. District Court Judge Robert Cleland ruled last year that the changes made in 2006 and 2011 could be imposed retroactively. He ruled other portions of the law unconstitutional, but the 6th Circuit didn't rule on those provisions.
The August opinion sided with the ACLU.
"(Sex Offender Registry Act) brands registrants as moral lepers solely on the basis of a prior conviction," the panel's August opinion reads.
"It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live."
For example, the August opinion states, some of the plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work, and the rules keep them from watching their children or grandchildren participate in school sports or other events, and from visiting playgrounds with them for fear of loitering.
The plaintiffs in the case, all of whom must register for life and some of whose offenses are decades old, include several convicted as teens of consensual sex with younger teens, the ACLU said.
"As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice," the Aug. 25 opinion reads.
The case was argued in the 6th U.S. Circuit Court of Appeals in January and the August ruling reversed that of the lower court.
Miriam Aukerman, an attorney for the ACLU of Michigan, described the court's August ruling as confirmation that the state's registry system is a failure.
"It turns out that an ineffective registry and an unconstitutional registry are the same thing," she said. "Both squander resources on those who aren't dangerous."
According to the ACLU, Michigan has more than 42,000 registrants, making it the fourth largest registry in the country, with the second highest registration rate per capita of any state. by Brad Devereaux | bdeverea@mlive.com
September 7, 2016
Sex offender laws and the 6th Circuit’s Ex Post Facto Clause ruling
I wanted to add a few words to co-blogger Jonathan Adler’s posting about the recent 6th Circuit decision in Doe v. Snyder, in which the court voided application of the Michigan Sex Offender Registration Act (SORA) on the grounds that it imposes retroactive punishment on previously convicted sex offenders in violation of the constitutional prohibition against Ex Post Facto laws.
The decision is an especially important one, possibly signaling, in Mark Stern’s words over on Slate, that “the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”
Here’s the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-’90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a “sex offense” — typically defined, as in the federal statute (42 USC 16911), as “a criminal offense that has an element involving a sexual act or sexual contact with another”** — to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases. ..Continued.. by David Post
August 29, 2016
Judges Are Starting to Question Overzealous Sex-Offender Laws
8-29-16 Michigan:
There’s a stark divide between lawmakers and experts when it comes to laws which restrict where registered sex offenders can live. Cities and states all around the country have enthusiastically banned offenders from living too close to schools — and introduced other, similarly oriented restrictions — on the grounds that such legislation is a common-sense way to help keep kids safe. Experts, on the other hand, have insisted that these laws at the very least don’t reduce recidivism, and could have the opposite of the intended effect, increasing the odds of sex offenders victimizing more children.
The expert consensus is pretty firm. The Association for the Treatment of Sexual Abusers, for example, has come out strongly against residency restrictions for two reasons: One, these restrictions wrongly assume that sex offenders target strangers rather than acquaintances, when the latter is far more common (despite the established trope of the creepy dude in the trenchcoat standing at the edge of the playground, waiting to spirit a kid off to his windowless van).
Two, as the ATSA put it in a 2014 policy paper, “these laws often create more problems than they solve, including homelessness, transience, and clustering of disproportionate numbers of offenders in areas outside of restricted zones. Housing instability can exacerbate risk factors for reoffending.” Overall, there’s literally zero empirical evidence that housing restrictions reduce the rates of sex-offender recidivism.
These claims have mostly fallen on deaf ears: Who wants to be seen as arguing “for” sex offenders? But a decision handed down by the U.S. Court of Appeals for the 6th Circuit last week suggests that at least some judges are starting to operate from a more evidence-based approach.
s Reason’s Jacob Sullum notes, the question before the court was whether it was kosher for the state of Michigan to have amended its Sex Offender Registration Act, or SORA, in 2006 and 2011 to introduce new restrictions that applied to previously convicted sex offenders. Six plaintiffs on the state’s sex-offender registry — five of them men — argued that in doing so, the state violated the Constitution’s ban on so-called ex post facto laws, or laws that are applied retroactively.
The court agreed, but also went further, offering what Sullum describes as a “scathing” assessment of Michigan’s tangle of restrictions on sex offenders:
“What began in 1994 as a non-public registry maintained solely for law enforcement use … has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders,” the court notes. Among other things, the Michigan legislature in 2006 barred registrants from living, working, or “loitering” within 1,000 feet of a school, a rule that effectively banishes sex offenders from large swaths of densely populated cities such as Grand Rapids (see map). “Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work,” the court says. “Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point … These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of ‘loitering.’”
It’s important to keep in mind that because the category of “sex offender” has become so bloated — because courts can easily apply the label for many different reasons — that a good deal of the people subjected to these restrictions aren’t, by any reasonable definition of the term, dangerous sex predators. The details vary from state to state, of course, but Reason notes that Michigan introduced a tiered system in 2011 designed to correspond to a given offender’s threat level to the public. And while all of the plaintiffs in the current case were assigned to the most “dangerous” tier, some of them didn’t commit crimes which would seem to warrant the designation: “one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend,” writes Sullum, “while another was convicted of ‘a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald’s.’”
But even for offenders who did commit more serious crimes, there just isn’t evidence these restrictions do more good than harm, and the court’s cost-benefit language is notably similar to the ATSA’s: “The punitive effects of these blanket restrictions … far exceed even a generous assessment of their salutary effects.” In other words, the court is acknowledging that sex offenders in Michigan were likely hindered, in important ways, from getting their lives back on track, for no good reason. And if you buy the ATSA’s logic, there’s at least a solid circumstantial case to be made that this could have increased the rate of recidivism.
One way to test this theory, albeit not in a dispositive manner, would be to look at how frequently sex offenders in Michigan recidivate, and how that percentage has changed alongside changes to the relevant laws. Unfortunately, the 6th Circuit notes that “Michigan has never analyzed recidivism rates despite having the data to do so.” It’s easier — politically at least — to just layer restriction atop restriction without stopping to ask whether doing so is making anyone safer. ..Source.. by Jesse Singal
Editorial: Court takes step to rein in sex registry
8-29-16 Michigan:
The registry must be pared down to contain only serious offenders who pose a real threat.
A federal appeals court panel has injected some common sense and fairness into Michigan’s sex offender registry. Now lawmakers should finish the job by getting rid of this archaic list that has served more as tool for ruining lives than protecting the public.
The 6th Circuit Court panel ruled in a case brought by five anonymous registrants who claimed changing the registry’s rules and applying the changes retroactively doesn’t pass constitutional muster. That spares those already on the list from having to constantly adjust to new layers of compliance each time the Legislature decides to get tough on perverts registrants.
Except that many of those who land on the sex offender registry aren’t perverts at all, nor are they sexual predators who present a danger to society.
Two of the registrants who brought this lawsuit were older teenagers who had consensual sex with their younger teen girlfriends. Another was 23 when he had sex with a 16-year-old girl he met at a club restricted to those 18 and older. The two later married.
Even though the sexual contact was all in the confines of a consensual relationship, the men will spend years on the sex registry, living with what has been constantly tightening restrictions and reporting rules. Some on the list must remain there for life, with no chance of getting their names removed.
The appellate panel said the changing compliance environment isn’t legal. Michigan lawmakers imposed harsher restrictions in both 2006 and 2011 and made them retroactive, so those already on the list had to meet the new requirements.
Judge Alice Batchelder, a conservative judge, wrote for the three-judge panel: “As dangerous as it may be not to punish someone, it is far more dangerous to permit the government under the guise of civil regulation to punish people without prior notice.”
Significantly, the judges said the restrictions imposed by the sex registry amount to a form of punishment. That opens the door for future challenges to the registry, which has insisted it serves only a regulatory function.
The registry does amount to perpetual punishment. Registrants can’t live or work within 1,000 feet of a school, for example, making it impossible for many of them to find homes or jobs, particularly in smaller communities. They also are required to frequently report their whereabouts and activities.
These are people who have already paid their debt to society through either prison sentences, fines or other penalties. Continuing to restrict them from doing such everyday things as attending their children’s school functions or limiting their residential and career options without assessing whether they present a risk to the community serves no purpose beyond vindictiveness.
Michigan has the country’s fourth-largest sex registry, with 42,700 names. You can get on it for actual sexual assault, or for a silly teenage prank like streaking, or even for urinating outdoors.
Teenage trysts should not be a ticket to the sex registry. Nor should isolated incidents of poor judgment.
For the registry to truly serve to protect the public, it must be pared down to contain only serious offenders who pose a real and ongoing threat. ..Source.. by Detroit News
August 25, 2016
Sixth Circuit panel concludes Michigan sex offender registration amendments "imposes punishment" and thus are ex post unconstitutional for retroactive application
8-25-2016 Michigan:
In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively. Here is some of the concluding analysis from the unanimous panel decision reaching this result:
So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. ..Continued.. by SLP
January 27, 2016
Sixth Circuit Considers Internet Restrictions on Former Sex Offenders This Week
The Center for Democracy & Technology has filed an amicus brief in the Sixth Circuit case Doe v. Snyder, a case challenging unconstitutional registration requirements imposed on former sex offenders and brought by the ACLU of Michigan. CDT is joined on the brief by the First Amendment Lawyers Association and Professor David G. Post, an expert in Internet law. The court is holding oral arguments Wednesday, January 27.
As our colleague and co-amicus David Post has frequently discussed, registered sex offenders face punishing restrictions and state-sponsored public shaming that drastically circumscribe their ability to re-enter society and re-establish standing in their families and communities. Many of the individuals on registries across the country were convicted for crimes involving public exposure or sex between teenagers.
But in a growing number of states, sex offender status has also become a means to exclude individuals from digital life, with grave consequences both for the individuals and their families and communities and for First Amendment protections more broadly.
Registry-based burdens and bans “muzzle” Internet speech
While some Internet restrictions may be individually imposed on an offender as a condition of probation or parole, people who have completed their sentences face crippling restrictions imposed en masse under a growing number of state sex offender registry laws. Registry-based Internet restrictions come in two varieties: bans on registrants’ use of certain websites, such as North Carolina’s social networking prohibition, and burdens on registrants’ creation of usernames and accounts, such as Michigan’s “Internet identifiers” scheme – which requires that registrants inform the authorities of all of their online usernames and accounts used “primarily” for communication purposes.
Requiring registrants to disclose all their usernames and accounts doesn’t expressly ban their use, but burdensome and invasive reporting requirements can still be an effective deterrent for large numbers of registrants. As a federal district court observed in a previous ruling, “whereas 92% of adult Americans use email, fewer than half of non-incarcerated Michigan registrants report having an email address or other Internet identifier.”
Restrictions on Internet identifiers for all Michigan registrants make little sense, given that some 94% of convictions had no connection to computers or the Internet. But the requirement is also counterproductive in an increasingly digital society, which will demand information-economy knowledge and skills across all fields and sectors. It is no longer defensible to say, as one of the architects of the Michigan statutes reportedly argued, that “There are lots of jobs that don’t involve computers.”
As we discuss in our brief, the ability of registrants to exercise First Amendment activities online, including accessing information and engaging in expressive association and speech, fosters development of knowledge and skills related to online research, communication, and networking. These skills in turn augment registrants’ reentry and ability to access opportunities in personal, educational, and professional life.
The danger of accepting “low-value speakers”
Conversely, denying First Amendment protections for registrants’ online speech will diminish the freedom of expression for us all. Evaluating Internet identifier registration requirements under a diluted standard of constitutional review will not only exclude registrants’ voices from public debate, it will set a dangerous precedent for future government regulation of online speech.
Unfortunately, courts evaluating Internet restrictions for former sex offenders have applied a less-rigorous form of “intermediate” scrutiny – a level of First Amendment review that can yield conflicting results for similar statutes, as contradictory decisions from the Ninth and Tenth Circuits have shown. But there are a number of clear constitutional flaws with Michigan’s identifier registration requirement, two of which I highlight below.
First, the Michigan statute essentially functions as a requirement for registrants to obtain government approval in order to speak online. As we note in our brief, “Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.” A prior restraint conditions the exercise of a First Amendment right on approval of government officials who may have little knowledge of their constitutional obligations. Such licensing or notification schemes traditionally receive the highest form of judicial scrutiny because their impact is so great: they necessarily result in the surrender of the speakers’ anonymity; disproportionately burden religious, political, and other controversial expression; effectively ban a significant amount of spontaneous speech; and generally treat speech as guilty until proven innocent.
Second, the district court wrongly concluded that the identifiers requirement does not infringe registrants’ constitutionally protected right to engage in unidentified expression, because the law does not “unmask their anonymity to the public,” and it wasn’t shown that officials with internal access to the database of SORA identifiers were likely to follow individual registrants’ online activities in real time. But the right to speak without identifying oneself or one’s content to the government is critical – particularly for engaging in expression that may be controversial or highly personal (like, for instance, joining Grindr, “the world’s largest gay social network,” or Ummah.com, an online message board for the Muslim community). The statute prescribes no legal or technical safeguards against unauthorized access, monitoring, or identifier-sharing within or outside of the state government, and offers no protections against the potentially devastating consequences of databreach.
Preventing the spread of status-based restrictions on Internet activity will be essential if we are to avoid a constitutional jurisprudence of “low-value speakers” entitled to fewer rights and protections for their expression – a dangerous legal development that could easily spread to other unpopular, controversial or disenfranchised groups.
Recognizing the severity of Internet prior restraints on former registrants – and their consequences for free expression in the digital age – will require a measure of judicial skepticism and rigorous First Amendment review. We urge the Sixth Circuit to hold Michigan’s “Internet identifiers” requirement to that standard and declare it unconstitutional on its face. ..Source.. by Rita Cant
January 22, 2016
Sex offender cannot challenge Michigan's registry anonymously, judge says
Is this Judge prejudiced against sex offenders? I wonder if any other cases handled by this Judge were Doe type cases!1-21-16 Michigan:
GRAND RAPIDS, MI – Despite his concerns of harassment, a man challenging Michigan's Sex Offender Registry cannot proceed anonymously, a judge said.
The man, identified in court records as John Doe, filed a federal lawsuit alleging that changes in the law severely restrict access to housing and have requirements that are so vague offenders cannot know if they comply with the law.
The state in 2011 changed to a tiered system to comply with federal rules.
Attorney Sarah Riley Howard is challenging the sex offender law's prohibition against living within 1,000 feet of a designated school zone as unconstitutionally vague.
She wanted her client, who is known to authorities, to use a pseudonym because of the backlash against sex offenders.
"It is well-known that individuals on the sex offender registry are a highly stigmatized group," she wrote in her motion.
She noted that some commenters attacked sex offenders when a story about the case ran on Nov. 6 on MLive.
"For example, among the comments, one person said, 'Do you want sex offenders living next door to you?, imagine you're raising two kids and one moves in right next door, I couldn't care less if it restricts predators (sic) housing, I like to know who to watch out for.' Another said, ' ... Sex offenders are among the most despicable low lifes (sic) we have. I don't care how tough it is for them.'"
She said her client has already been involved in a physical altercation and harassment because of his "mere status" on the registry.
She said the man and his mother, evicted from their apartment after a neighbor apparently noted his registry status, found hot grease on their car while packing up to leave.
He was also assaulted, and had "B----" written on the windshield, the lawsuit said.
"Plaintiff's concern is that he will become a particular target for harassment, even among the already-stigmatized group of those on the registry, once his name appears in the press as someone challenging the law as void because its vagueness makes compliance difficult or impossible," Howard wrote.
She said he is worried about losing his new apartment, or being harassed at work, or seeing his new employer harassed.
"Unlike other plaintiffs who face some scorn, embarrassment, or negative publicity from being a party to litigation, Plaintiff is exposed by the sex offender registry itself to great risk of harassing contact and worse. His picture, complete birthdate, vehicle details, residence and place of employment are easily associated with his name, with only a few seconds of effort."
She said her client is entitled to public safety as anyone else.
U.S. District Judge Robert Jonker had rejected Howard's initial request her client proceed anonymously and on Thursday, Jan. 21, turned down her motion for reconsideration.
"The Court in no way condones harassment that people suffer unfairly, whether because they espouse an unpopular view in a public forum, or otherwise. But the Court cannot guarantee any litigant freedom from expressions of opposing views – even strongly worded expressions of opposition."
He said that litigation is presumed to be a held in public, "especially when matters of public concern are at issue."
The lawsuit names as defendants Grand Rapids Police Chief David Rahinsky, state police Col. Kriste Kibbey Etue and Gov. Rick Synder.
City Attorney Catherine Mish says the city has agreed not to enforce the residency requirement until the case concludes. The city did not oppose the man using a pseudonym.
Howard said that Michigan is one of only 15 states to substantially comply with the federal requirements.
She said her client and his mother were told in August they had to leave their apartment when the lease was up.
They found another place, with "some difficulty," that was believed to be outside of the 1,000-foot school zone.
Based on a state police website, a cadet at Grand Rapids Police Department verified the address was outside of the zone. When the son showed up to report his new address, a Grand Rapids police mapping website showed it was within a school zone.
The plaintiff in the lawsuit said he was arrested for accessing child porn on the Internet.
The lawsuit said he was looking for photos of himself as a sexually abused child when he accessed online photos of other sexually abused children, which resulted in his guilty plea in 2009 to accessing sexually abusive material involving children.
He works at a fast-food restaurant and cannot afford to live on his own. ..Source.. by John Agar
December 19, 2015
Michigan Supreme Court takes major case involving sex offender list
The Michigan Supreme Court has agreed to look at the case of a man who's on the sex offender list for life, although his conviction was erased nearly 20 years ago. Among the issues: Is it "punishment" to be placed on the registry?
The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble.
Nonetheless, he's on the sex offender list. In an order released Saturday, the Supreme Court said it will take up the appeal (of BOBAN TEMELKOSKI ). The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as "cruel and unusual punishment." ..Source..
November 21, 2015
Free Press wins appeal over release of mug shots
The Detroit Free Press won an appeal Wednesday in a lawsuit regarding the public's right to see mug shots of criminal defendants charged in federal court.
But the ruling by a three-judge panel of the U.S. 6th Circuit Appeals in Cincinnati hinted that the victory could be short lived.
In a 5-page opinion, the judges upheld summary judgment to the newspaper, citing a prior case brought by the newspaper that set a legal precedent.
But judges also urged the full court to take up the matter in a rare, en banc hearing.
"In particular, we question the panel's conclusion that defendants have no interest in preventing the public release of their booking photographs during ongoing criminal proceedings," the judges wrote.
The opinion noted that the federal Freedom of Information Act includes a provision for excluding the release of material collected for law enforcement purposes if public release "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
"Booking photographs," the judges wrote, "convey the sort of potentially embarrassing or harmful information protected by the exemption: they capture how an individual appeared at a
particularly humiliating moment immediately after being taken into federal custody."
What's more, they wrote, booking photographs continue to be available on the internet long after a case ends.
The decision marks the fourth time a court has ruled in favor of the Free Press in the past two decades but the government is expected to again appeal the decision.
"This is a battle that the Free Press has been waging against the Department of Justice for 20 years, and this opinion reflects that it's still not over," said Herschel Fink, Detroit Free Press attorney. "The issue will now likely go back to the full 6th Circuit bench for yet another review."
The lawsuit involves the booking photos of former Detroit Mayor Kwame Kilpatrick; his father, Bernard Kilpatrick, and his longtime contracting friend Bobby Ferguson, as well as the photos of Detroit-area police officers who were indicted on federal charges.
The Free Press filed a Freedom of Information Act request in 2012 for the defendants' mug shots with the U.S. Marshal's Office on Feb. 12, while all three men were standing trial on numerous public corruption charges. But the U.S. Marshal's Office denied the request.
Fink argued that the Freedom of Information Act requires government agencies to honor requests for the booking photos of criminal defendants who have appeared in court during ongoing proceedings.
"We believe that the Court decided it correctly in 1996, and will urge the Court to reaffirm its original holding," Fink said. "There simply is no privacy interest in booking photos of persons who have been indicted on federal felony charges, arrested, appeared in open court to answer those charges, and where the proceedings are on-going. That was the Court's original ruling, and it remains the right result." ..Source.. by Katrease Stafford:
November 8, 2015
Teen inmates allege retaliation for rape suit
11-8-15 Michigan:
Current and former teen inmates who sued Michigan’s Department of Corrections for allegedly allowing them to be raped and sexually assaulted behind bars have been subjected to retaliation and further abuse from state employees, their attorneys say in court documents.
In a new lawsuit filed this week, the 12 John Doe plaintiffs allege all manner of reprisals against them — from corrections officers identifying them to other prisoners as both assault victims and as plaintiffs to the confiscation and destruction of evidence and personal items. The retaliation has included further physical assault, according to the suit filed in U.S. District Court in Ann Arbor.
John Doe 1, who was first incarcerated as a 17-year-old, claims his participation in the lawsuit led to corrections officers at Bellamy Creek Correctional Facility to target him. Officers allegedly searched through his documents relating to the litigation and announced over a prison loudspeaker that the prisoner was “HIV positive and needed to start his treatment,” according to court documents.
John Doe 2 claims he was subjected to increased searches of his cell and that officers confiscated his personal journal — containing details of abuse and harassment — and turned it over to the state attorneys defending Michigan’s Department of Corrections in the lawsuit.
Other plaintiffs had materials linked to the case taken from them, including John Doe 3, who was allegedly assaulted by corrections officers “on multiple occasions” following his participation in the lawsuit.
“One of the biggest concerns we had in bringing this case was that we didn’t want our clients to be harmed in any additional way... ,” said Jennifer Salvatore, one of the plaintiffs’ attorneys. “We petitioned the court to be able to file as John Does because we were worried about retaliation from prison officials. Unfortunately, we think the defendants have not honored the terms of the protection order in not keeping the confidentiality of these prisoners.”
Chris Gautz, spokesman for Michigan’s Department of Corrections, said prison officials had not been served with the lawsuit yet and would not comment. Questions were referred to Attorney General Bill Schuette’s Office, where a spokeswoman said the department of the state’s top legal officer also had not yet received the complaint.
Michigan’s prison system, particularly its handling of teen inmates convicted as adults, has been in the cross-hairs since the first John Doe lawsuits were filed in 2013. The suits, proceeding on state and federal court tracks, alleged male teens were subjected to rapes as well as sexual and psychological abuse at the hands of adult inmates as well as prison officers.
Attorneys for the plaintiffs argued the state failed to protect a particularly vulnerable population as required under the federal Prison Rape Elimination Act of 2003.
Corrections officials and state attorneys have said they believe claims made in the original lawsuits are false, and they have been aggressive in their defense. In April, Schuette’s office filed a brief asking the courts for permission to identify John Does 8 through 11 in legal documents since they had been added later in the case and because the anonymity made it difficult for state investigators to research the claims.
In March, Schuette’s office made headlines when an assistant attorney general subpoenaed the notes of a journalist reporting on the case and the audio recording of a radio interview given by a plaintiffs’ attorney. Schuette apologized to the two journalists, said he didn’t know about the subpoenas and vowed “It will not happen again.”
This week’s lawsuit makes new complaints that again question how the state handles a vulnerable part of its prison population. The allegations of retaliation include:
- While at Bellamy Creek, John Doe 4 was “harassed by being issued a false sexual misconduct ticket, interference with attorney phone calls...”
- Corrections officers at Bellamy Creek also allegedly targeted John Doe 5, “telling him he should drop (the lawsuit) if he ever wanted to go home, refusing to call him out for his work and program details, and encouraging other prisoners to take action against him.”
- John Doe 5 also claimed an officer withheld food from him as an example to other inmates to “decide whether it’s worth it to snitch and sue MDOC.”
- An officer at Alger Correctional Facility supposedly targeted John Doe 9 by summoning him over the prison loudspeaker with “I need the rape victim to report to the bubble, this is a direct order.”
- At Cotton Correctional Facility, John Doe 10 returned from temporary segregation to find his legal “work, papers and property were taken.”
- John Doe 10 was also allegedly told “he wouldn’t have been assaulted if he wasn’t gay” and that “he should be ashamed” and “why was he still alive?” A different officer said he had been singled out for punishment because “you’re suing the state and you’re gay.”
November 6, 2015
Sex offender suit says Michigan registry unfairly restricts housing, employment
11-5-15 Michigan:
GRAND RAPIDS, MI – A man on Michigan's Sex Offender Registry contends changes in the law severely restrict access to housing and contain requirements so vague that offenders cannot know if they are in compliance.
The state in 2011 changed the registry into a tiered system to comply with federal requirements.
"Under (Sex Offender Registration Act 2011), Plaintiff is subjected to a vast array of state-imposed restrictions on where he may live. The plaintiff must comply with these extensive restrictions and obligations, or face criminal sanctions," attorney Sarah Howard Riley wrote in a federal lawsuit.
She said the law violates the Due Process Clause. She is challenging the sex-offender law's prohibition from living within 1000 feet of a "school zone" as unconstitutionally vague.
She named as defendants Grand Rapids Police Chief David Rahinsky, state police Col. Kriste Kibbey Etue and Gov. Rick Synder.
Her client, a Grand Rapids man identified as "John Doe," is seeking to proceed under a pseudonym, with his name known only to the defendants and court.
"As a registered sex offender, Plaintiff belongs to a highly stigmatized group," she wrote. "Forcing him to disclose his identity could subject him to significant harm."
City Attorney Catherine Mish has been in contact with Howard over the claims. The city has agreed not to enforce the residency requirement until the case concludes.
She and police know the identity of the plaintiff and have agreed that he could proceed under the pseudonym.
Snyder's press secretary, Dave Murray, said in an email: "The governor's office has not been served, but will review the case if and when that step in the process occurs."
The state's Sex Offender Registration Act was amended in 2011 to comply with the federal Sex Offender Registration and Notification Act, part of the Adam Walsh Child Protection and Safety Act of 2006.
Howard said that Michigan is one of only 15 states that have substantially complied with the federal requirements. Others did not because of concerns about cost and effectiveness, she wrote.
Her client's trouble came in August, when Doe, living with his mother, was told by a landlord their lease was up and they had to move out. With "some difficulty," he and his mother found an apartment and believed it was outside of the 1,000-foot school zone.
Many landlords refuse to rent to those on the sex offenders' list because their properties are easily identified on the registry, Howard said.
Before signing a lease, Doe and his mother asked a cadet at Grand Rapids Police Department to verify the address was outside of the zone. The cadet allegedly said it was OK but told them they had to return and provide the address once they moved in.
They returned Sept. 1 and were told the residence was actually within a school zone.
The cadet had looked up the address on the state police website, which showed it in compliance, but a Grand Rapids police mapping website showed it within the school zone. Police would not process the change of address, the lawsuit said.
Police told Doe he had 30 days to move out, the lawsuit said. They could not find a place so police gave them an additional 30 days, which expires on Saturday, Nov. 7.
"Plaintiff has been harmed because the restrictions and obligations of SORA 2011 are so vague that Plaintiff is unable to know whether or not he is in violation of the law.
"Moreover, even different law enforcement personnel within the same law enforcement agency apply the requirements of SORA 2011 differently," Howard wrote.
She said the law does not specify if the 1,000-foot rule is to be measured property line to property line or building to building. The state does not offer a map to show exclusion zones, she said.
Her client is barred from living, working or loitering near a student-safety zone.
"Exclusion zones put a significant percentage of cities and towns off-limits. As a result, exclusion zones severely restrict access to employment and housing, and limit registrants' ability to engage in normal human activity," Howard wrote.
She said her client was sexually molested for a long time by a member of his family's church. It included photographs taken of him of an "illicit sexual nature," the lawsuit said.
The sex offender's suit states he was looking for photos of himself as a sexually abused child when he accessed online photos of other sexually abused children, which resulted in his guilty plea in 2009 to accessing sexually abusive material involving children.
He works at a fast-food restaurant. He cannot afford to live on his own so he lives with his mother. ..Source.. by John Agar
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