Category: Uncategorized

Federal District Court Judge Robert Cleland issued a new order in the Does II case on June 21, 2021. In this order Cleland again orders the State and the ACLU to work together to draft a final judgement for his approval, a process that was interrupted by Covid. The parties have until July 12 to do this. A more detailed analysis of the order will be forthcoming from the ACLU, but some highlights of the order are:

Nothing in the Does II case will affect the new SORA that went into effect on March 24, 2021. Any questions about the constitutionality of the new law will have to be raised in a new lawsuit.

The order says, “the new version of SORA applies only to registrants’ conduct on or after March 24, 2021”. For events prior to this date the old law, as modified by his earlier rulings on its constitutionality, still applies.

The order reiterates that law enforcement agencies may not charge people for registry violations that occurred during the pandemic.

The full text of the order can be found at https://www.mied.uscourts.gov/PDFFIles/16-13137SORAOpnOrd.pdf.

—John

On February 14 United States District Court Judge Robert H. Cleland issued his final order in the Does II  lawsuit, and he gave us essentially everything the ACLU asked for. You can learn all about it at https://www.aclumich.org/en/SORA, where among other things there is a recording of a video conference with Miriam Aukerman explaining the ruling.
A few things stand out at this point:

• The order is not yet in effect. It will likely take effect in about two and a half months, but until then you should remain compliant with the existing law.
• The legislature can decide during this waiting period whether they want to accept the order or write a new law. If they pass a new law within the time limit, the judge’s order will no longer be in force. If they don’t pass a new law the judge’s order will limit how the existing law can be enforced.
• What the order means for you depends on when your offense was, not when you were convicted or incarcerated. People whose offense was before April 12, 2011 will be off the registry completely. People whose offense was on or after this date will remain on the registry but will have fewer restrictions (no school safety zones, no registration of vehicle or internet ids).
• To help with their lobbying efforts during the waiting period the ACLU wants people who will volunteer to tell their stories to the legislature, and they also want people to tell them what their priorities are regarding a new law. Write them at intern@aclu.org.

Will there finally be relief for Michigan registrants? It’s been years since the courts in Does v. Snyder I found multiple constitutional problems with Michigan’s sex offender registration law. Yet Michigan state officials have taken no action to revise it. It looks like the next move will be the court’s again. There will be a hearing on February 5 at 2:00 pm in Judge Cleland’s court room, Federal Building and Courthouse, 526 Water Street, 2nd Floor, Port Huron, MI 48060 on the John Doe v. Snyder et al, case number 2:16-cv-13137-RHC-DRG. It will be a hearing on a motion for declaratory and injunctive relief for the ex post facto claim and also a hearing on the vagueness, strict liability, and 1st Amendment issues of Michigan’s sex offender registry law. We don’t expect the judge to rule on this date, but it may be his final hearing on this, and we hope for a decision soon after.

There will be a group of us attending. If you are interested and would like to car pool, please contact one of the support group leaders.

We were expecting this, but now it has happened. Federal District Court Judge Cleland has ordered the state legislature to revise the SORA, and has given a 90 day deadline to get this done. He says that 90 days is reasonable “given that the Does I decision has been final since October 2017”.  You can see the actual order on the ACLU web site.

If the state does not change the law within 90 days, Cleland has ordered that the 2006 and 2011 amendments to SORA cannot be applied ex post facto to the whole class of people required to register. This is the minimum change that he will make to the law, and this in itself will be huge, but, this isn’t the end of his order. He also says that he might find that the 2011 amendments to SORA are not severable from the rest of the SORA, and therefore that the SORA is null and void for anyone whose offense occurred before April 12, 2011. He also reminds us that he decided earlier that a number of registration requirements (residency and work exclusion zones, registration of internet ids and vehicles, etc.) are unconstitutional, and that he might order that these cannot be enforced.

Big news indeed! We can be sure now that big changes to the Michigan SORA will occur before the end of the year. This order is something we should detail in our future lobby visits with legislators.

Thanks to our musician and audio-engineer member Rich we now have a recording of our February 23, 2019 advocacy training. The training was given by Shelli Weisberg and Tim Poxson of the ACLU of Michigan and is described in a little more detail in a previous blog post. It’s about two hours long, but you don’t have to listen to all of it. So that you can go directly to the parts you want to review, here’s an index giving you starting and ending times of each major segment:

0:00–0:20	Skip (Conversation before training)
0:20–6:24	Shelli Weisberg’s introduction
6:24–16:50	Skip (Participant introductions)
6:24–12:18	Tim Poxson’s introduction
12:18–56:45	Status of Does cases
56:45–1:24:23	Advocacy training
1:24:23–1:39:30	Model role play by Shelli, Tim, and Greg
1:39:30–1:48:55	Skip (Small group role playing)
1:48:55–2:02:56	Evaluations of small groups
2:02:56–2:07:58	Next steps

On June 21, 2017 Online site “The Federalist” posted an article by Attorney Kyle Sammin bemoaning the Supreme Court of the United States recent decision involving the free speech & association rights of registered people. Here is a link to that article:

http://thefederalist.com/2017/06/21/supreme-court-strikes-law-banning-sex-offenders-much-internet/

The following is the response that two of our members posted (followed by a list of citations):

Mr. Sammin,

Thank you for what I am certain was a carefully constructed article written straight from your heart. With respect, I am less than convinced that your arguments were based on the best available evidence. Let me address each of your arguments in order.

First, you assert that registered citizen’s (you use the term “Sex Offender” more on that in a second) have a “high rate of recidivism.”

It can be easy to get lost in the weeds comparing studies so let’s go straight to the “gold standard” of available evidence on sex offender recidivism, the US Government’s Department of Justice report.

If you filter the recidivism results from the DOJ report for new convictions (which is how most states define recidivism) and for crimes against children (your premise), the recidivism rate for so-called “Sex Offenders” is 1.5%.

Yup, you read correctly, the correctly weighted recidivism rate for so-called “Sex Offenders is 1.5%

As a point of comparison, according to the Bureau of Justice Statistics, the general national recidivism rate for released prisoners is 68%.

In fact, this very issue was debated in the Amicus briefs for the Packingham case Melissa Hamilton a Juris Doctor and Ph.D. Professor of Law at the University of Houston explains that compared to the prosecution’s brief which used studies primarily on subsets that did not apply to Mr. Buckingham’s situation:

“…the amicus brief on behalf of the Association for the Treatment of Sexual Abusers (and other groups) provide evidence of sexual recidivism studies from more appropriate samples. This brief cites results from studies of released sex offenders in seven different states in America, showing sexual recidivism rates in the low single digits (most around three percent),42 which is relatively consistent with the DOJ Recidivism Study results.”

So, next, you suggest that “from the birth of the internet perverts have used it to make contact with unwitting victims.”  Unfortunately, this evidence-free pejorative assertion does not prove that returning citizens charged with sex offenses are a risk. In fact, the best available evidence does not support your thesis. Even the SMART Office (hardly a friendly source for so-called Sex Offenders) has concluded that the risks from returning internet based offenders is incredibly low:

“Seto and colleagues (2011) also reviewed recidivism rates from nine samples of Internet offenders (2,630 online offenders) followed for an average of slightly more than 3 years. They found that 4.6 percent of Internet offenders committed a new sexual offense of some kind during this time period, with 2 percent committing a contact sexual offense and 3.4 percent committing a new child pornography offense; some offenders committed both types of crimes. Although the follow up times are relatively short for this kind of research, and recidivism rates are expected to increase with more opportunity, these recidivism rates are lower than those observed in recidivism studies of offline offenders (Hanson & Morton-Bourgon, 2005) and belie the idea that all Internet offenders pose a high risk of committing contact offenses in the future.”

In fact, their report on internet offending concludes it’s recidivism section by stating:

“More research is needed, but an analysis of nine available follow-up studies suggests that Internet offenders, as a group, have a relatively low risk of sexually recidivating compared to conventional contact sex offenders.”

In addition, the SCOTUS did not say all regulations would be overbroad, they suggested several means a state could use to construct a regulation that might pass Constitutional muster. The Packingham court found that the North Carolina statute was unconstitutionally overbroad, not that regulations in this area would be inherently unconstitutional.

Also, ex-cons do not have their “rights restricted all the time” as you claim. The Restricting of the rights of any citizen’s are and will always be subject to constitutional review. Our rights are not something that can be wished away at the whims of legislators or writers for The Federalist.

I should also probably mention here that there is no such thing as a “Sex Offender.” There is no medical category defining a class known as “Sex Offenders” and there is no defined psychological class known as “Sex Offenders” it is a purely legal category created entirely by legislators.

The term Sex Offender really only means that a particular defendant was convicted of a crime that involved sex (widely defined) and the term encompasses literally hundreds (if not thousands) of crimes can label people as “sex offenders” (with new laws being passed every day). Or as the Association for the Treatment of Sexual Abusers put it in their Packingham Amicus:

“There is universal agreement among professionals that restrictions on registrants must have some basis in empirical reality to be effective. One such reality is the fact that registrants are not a homogenous group of ‘sex offenders’ that should be monolithically managed. Rather registrants comprise a diverse group of individuals, each different from the next in terms of past criminal history, behavioral patterns, and risk of recidivism. On top of the fact that the observed recidivism rates for ‘sex offenders’ in the aggregate are for lower than what conventional folk wisdom suggests, differences in recidivism risk among the diverse registrant population requires a tailored rather than a uniform approach to crime prevention.”

To carry your argument here, you would have to prove that returning citizens convicted of sexual crimes against children are at unique risk of recidivism. But, again, all of the best evidence suggests that the risk of recidivism (already very low) declines substantially over time. The evidence also clearly demonstrates that people “age out” of sexual recidivism. In addition, we know that exposure to specific kinds of therapy reduces these very low risks of recidivism even further (see SMART Office Reports).

You seem to romanticize the world where restrictions like the ones North Carolina passed would pass constitutional muster, again this seems strange because this law was not a good idea and would not have protected children (as the ATSA Amicus concluded):

“First, as Petitioner’s brief points out, the ban applies to registrants who are registered for reasons that have nothing to do with minors or harvesting information about them. Second, most victims (93%) know their offender as either a family member or close acquaintance, not via information harvested from social networking websites. Third, most offenses (85%) come from inside the home, not because of harvested information on social networking websites. And fourth, most offenses (93%) are committed by a first-time offender, not by a registrant.”

Thanks for your time and please keep in mind that your suggestions for regulation or reform potentially affect nearly 800,000 very diverse registered citizens across the United States who care deeply about the rights that you seem to believe are disposable.

List of Citations:

DOJ Report:

https://www.bjs.gov/content/pub/press/rsorp94pr.cfm

The general rate of recidivism claim from the Bureau of Justice Statistics can be found here:

https://www.nij.gov/topics/corrections/recidivism/Pages/welcome.aspx

You can find the Hamilton article here:

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=827096

The internet offending claim is from this article produced by the SMART office

https://smart.gov/pdfs/InternetFacilitatedSexualOffending.pdf

The Packingham ATSA Amicus:

https://ballotpedia.org/wiki/images/9/9f/Packingham_v._North_Carolina_Amicus_brief_of_the_ATSA_et_al_in_support_of_petitioner.pdf

The aging out and therapy claims are corroborated in the SMART office SOMAPPI report which you can find here:

https://ojp.gov/smart/SOMAPI/index.html