Gongwer News Service
Arguments for and against scrapping the state's current Sex Offender Registration Act, removing longtime registrants and starting anew with yet another iteration were heard by the Michigan Supreme Court on Wednesday.
The case in question, People v. Kardasz (MSC Docket No. 165008), was one of several heard this week by the high court in its March case call.
Kardasz involves a defendant convicted of first-degree criminal sexual conduct. He was at first sentenced to 30 to 45.8 years in prison, but the Court of Appeals vacated his sentence and remanded the case for resentencing. The appellate panel ruled that the Macomb Circuit Court failed to explain why it exceeded the 25-year statutory minimum sentence. On remand, the trial court sentenced the defendant to 25-40 years in prison with a modifier requiring lifetime electronic monitoring and registration.
The appellant asked the Supreme Court to determine whether lifetime registration under SORA, as amended from a previous iteration that was found to be unconstitutional, constituted cruel and usual punishment violating both the Michigan and U.S. constitutions. The same question was asked regarding lifetime monitoring and the lack of individualized assessments for recidivism risk, which keep those convicted of the worst CSC charges on the registry long term.
But beyond the bounds of just his case, Kardasz calls into question the entire lifetime monitoring and registration scheme of SORA.
Ali Wright, the appellant's attorney, argued on Wednesday that SORA was facially unconstitutional and was a punishment because nearly all of the aspects the court identified as punishment in People v. Lymon – decided by the current court last year – remained and applied equally to sexual offenses.
Lymon, with an opinion from Chief Justice Elizabeth Clement, held that requiring individuals to register as a sex offender for non-sexual crimes is unconstitutional cruel and unusual punishment. The ruling held that registrants with crimes lacking a sexual component were entitled to be taken off the registry, however, other registrants with a sexual component to their offense likely belonged on the registry.
Wright said if those same rules applied, and they should, then the court should strike down the current SORA law, remove those on it from the registry and mandate that the Legislature craft a law that is facially unconstitutional.
"SORA is not just punishment but is also cruel and unusual punishment under this court's test (in another case) and after this court accounts for the evolving standards of decency that mark the progress of a maturing society," Wright said. "The mandatory long periods of registration up to life, the immediate in person reporting requirements, the public nature of the registry, which contains extensive personal information about registrants and automatically pushes out passive geo-tracking alerts to the public, the lack of any individualized assessment and the lack of any ability to petition for removal all contribute to a constitutionally infirm statute that this court must strike down."
The inability to seek an individualized assessment, Wright argued, has created a registry that is now bloated and doesn't reflect who is truly at risk of committing a future sex offense.
"The government should want precision. This court should want precision. The people of Michigan should want precision. Those who truly pose a future danger to society should be required to register under a constitutional statute," Wright said. "But the solution is not to cast an overly broad net and subject those who may not be at future risk of reoffending to the same punishment – punishment that is physically and mentally debilitating."
Arguing for the state was Macomb County Prosecutor Emil Semaan, who said that whether the requirements were unreasonable or not, whether they were intrusive or whether there are individual assessments, the state and the law consider lifetime SORA monitoring and registration requirements only for the worst criminal sexual conduct cases.
"Lifetime registration applies for CSC first degrees and for very specific other crimes under the under the different tier system. It's not for CSC Four, it's not improper touching. If Mr. Kardasz specifically doesn't qualify for a lifetime CSC one (SORA requirements), then no one really does. This is a man who at 30 years old violated his five-year-old daughter, repeatedly, until he was finally caught and when she finally had the courage to report to her mother. The father is supposed to protect their child became the manifest nightmare to that child. So, I think what you have to look at, in this situation is, what is reasonable here."
When compared to something law-abiding citizens don't have to do, Semaan said there will of course be differences.
"It must be and it is constitutionally reasonable to have those differences. Felons lose a lot of their privileges. They can't vote, they own guns, they can't possess them," Semaan said. "You can argue that violates the Second Amendment, but there are still restrictions on everybody. And the restriction that applies here is less intrusive than prison. The fact that they have to register on a quarterly or annual basis (doesn't apply to cruel and unusual punishment).
The fact that they have the proverbial scarlet letter doesn't really apply, either. The scarlet letter happens when anyone can do a public records look for any person on the Internet now for $7. You'll find out if there is a sexual offender on that alone, irrespective of SORA."
Semaan also questioned the appellant's argument that recidivism becomes less of an issue as registrants age or are far enough away from their initial offense, saying that lifetime monitoring and SORA both have a purpose: to put people on notice that there are consequences for your actions.
"Those consequences only come for the most serious crimes, not just because you touch somebody, or you bump into somebody, or you cop a feel," Semaan said.
In terms of individual assessments, even outside the bounds of Kardasz, Semaan said he believed that would be something the Legislature has to take up eventually anyway. However, the fact that it is mandatory for only a certain class of convicted felons doesn't make it cruel and unusual punishment.
"What happens if you get it wrong? And they go back and recidivate and sexually assault more people? The fact that they are stuck in a situation where they can't go to certain areas because of what their crime entailed," Semaan said. "(Tracking) people because of crime that they've had, being felons, is not new.
People who have criminal records can't always travel to Canada. They can't always travel overseas. We don't argue to vacate their conviction because of that collateral consequence. And no one's saying these people cannot travel anywhere else. So, the question of that they're afraid of traveling to other areas, really, it seems to hold a very hollow ring to it compared to the lifetime pain and suffering that a minor and victim has to go through."
Deputy Solicitor General Eric Restuccia, arguing on behalf of the Department of State Police as an amicus party, said whether or not the high court sees fit to strike down or gut aspects of SORA or the lifetime monitoring requirement, the Kardasz case was the wrong one to do that with.
"Regardless of the review of the 2021 SORA, it is not unconstitutional to apply its requirements to Robert Kardasz, who is the gravest of offenders, having raped his five-year-old child," Restuccia said. "Second, this case is also not in the right position to address the broader issue of whether (SORA) is cruel and unusual punishment because if, somehow, the court thought it might in fact be cruel and unusual punishment as applied to Mr. Kardasz, there's been no significant briefing on the significance of such a ruling."
Restuccia said Kardasz's main request for relief in the application for leave is to come off the registry, but an important questioned remained as to whether was he arguing on Wednesday that SORA should apply to no one. He argued that before the court decides that all 45,000 registrants should no longer have to register, the implications should be borne out in briefs to the high court.
In questions for the parties, Welched asked Wright to grapple with the fact that the 2021 SORA appeared to fix all of the problems in the 2011 iteration, and that cruel and unusual punishment question appeared to be answered in Lymon – both for those without a sexual component to their offense of for those with a sexual component.
Welch also posited that the most current form of SORA, Lymon notwithstanding, appears to be nearly identical to the federal Sex Offender Registration and Notification Act, which has been challenged and upheld.
Wright said Michigan's Constitution and the U.S. Constitution are different documents, and that both have been read differently in the past by Michigan's high court. He also posited that SORA 2021 did not fix key aspects of SORA 2011.
"While the physical exclusion zones were removed from 2011 SORA, this court still held in People v. Betts that there some of the changes were more ameliorative and some were more restrictive," Wright said. Again, I point to the five things – immediate in-person reporting requirements, the public nature of the registry, the mandatory long periods up to life of registration, no individualized accession assessments and no ability to petition for removal – that still make 2021 SORA run afoul of our Constitution."
Until those aspects are changed, Wright said Michigan still has an unconstitutional statute in SORA 2021.
Justice Kimberly Thomas asked about the alternative to striking down SORA, which would be to make a ruling applied only to the defendant in the case and not the broader pool of registrants who may or may not be facing unconstitutional reporting requirements and restrictions. Thomas wondered if they needed a "thicker case record" to make that determination.
Wright said he wasn't quite sure, but said the court could still rule on the facial challenge and if SORA was found to be facially unconstitutional, that unconstitutionality would also be applied to his client.
Clement doubled down on that question, implying that that court may need more, especially if it doesn't reach that conclusion.
Wright said there's been no individualized assessment for his client and his risk of reoffending, so ideally, that would occur before the court makes a determination on either lifetime registration or monitoring – a step that is not required by the current SORA.
Wright also argued again that registration absolutely was a "scarlet letter" that doesn't just inconvenience registrants or makes their lives more difficult, it also opens them up to violence or crimes committed against them for adhering to the law.
"It impacts them in every aspect of daily living, from their jobs to their housing stability and situations, their physical or mental health. It subjects them to scams, and it impacts, honestly, all of their social interactions with family, friends, colleagues and loved ones," Wright argued. "The immediate in-person reporting requirements are onerous and all that contributes to making 2021 SORA overly harsh because the punishment is never tailored to the person. Also, again, with respect to the force factor, jeopardizing registrants physical safety subject to acts of vigilantism."
Wright cited a situation where a registrant was attacked by an employer who, upon finding out about her registry status, made sexual advances toward her and then beat her in front of coworkers. The example said the employer felt like his attack was "freeing."
"The registry should not serve as a catalyst for cathartic violence," Wright said.
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