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Michigan Editorial: 1-9-07 |
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Michigan: Entrapment by omission?
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1-9-2007 Michigan:
Do 'safety zones' protect kids from predators? |
.HOLLAND -- At 48, Billy Nichols was hoping to get his troubled life back on track. He has been in and out of jail over the years for assault and domestic violence, and he is listed on the state sex offender registry. But, for the past two years, he stayed clean, recently working as a taxi cab driver and trying to save money. Then, he moved to a new home in August, a simple event that unleashed unanticipated consequences: Police charged him with violating a year-old law that prohibits sex offenders from living within 1,000 feet of a school.
"I lost my job over this," he said, blaming stress for getting him fired. "There was just too much pressure." Nichols is among several Ottawa County offenders charged under the "student safety zone" law since it took effect Jan. 1.
Police and state legislators say the law is working well, but critics complain it has little value in stopping sexual predators and often snares former sex offenders who are trying to do the right thing by reporting address changes to authorities. [snip]
Moritz (Holland Attorney John Moritz) said many of the safety zone arrests happen when an offender moves to a new residence, then goes to their local police department to notify authorities of the address, as required by law. Police then plug the address into a mapping system that shows the 1,000-foot boundaries and issue charges. [snip]
The law prohibits those on the state's Sex Offender Registry from living, working or loitering within 1,000 feet of a school, unless they lived or worked there before Jan. 1, 2006. Those convicted of sex offenses after Jan. 1 have 90 days to move if they live near a school. State Sen. Patty Birkholz, R-Saugatuck Township, was one of several co-sponsors of the safety zone law.
..more..
: by John Tunison
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.Can a state legislature be guilty of entrapment? Good question. It appears "entrapment" is working just fine in the state of Michigan!
So you ask, how could the legislature entrap someone? I'll step it out:
1: Enact a law prohibiting some conduct by a select group of people;
2: Fail to tell that group about the law, when it is required to tell them about all changes in the law affecting their responsibilities;
3: Then wait, and when someone from that group runs afoul of the prohibited conduct, arrest them, charge them, then convict them of a crime.
Hence, entrapment by omission. Legislators know full well that many registrants are evicted and forced to move frequently by virtue of being on the registry. The registry effectively makes nomads of many registrants.
In the accompanying news report several registered sex offenders (RSOs) were charged with, and likely will be convicted of, a violation of one of Michigan's newly enacted residency laws, which are:
PA 127 of 2005, Eff. 1-1-06: This law prohibits most registered offenders from living within 1000 feet of a school. Those living within 1000 feet when the law goes into effect do not have to move, however, should they move then they must comply with the new law.
PA 121 of 2005, Eff. 1-1-06: This law prohibits most registered offenders from working or loitering within 1000 feet of a school. Those working within 1000 feet when the law goes into effect do not have to quit their jobs, however, should they change jobs they must comply with the new law.
Michigan, -like all states- must INITIALLY notify anyone registering of their duty to register, and any other duty required of them, including when laws are changed.
Michigan enacted "MCL 28.725a which explains the responsibilities of the MSP or local registering agencies taking the registration, to notify the registrant when s/he registers. Registering agencies cannot ignore the laws, they are not above the law!
Due Process Issue:
When a person first registers they are required to sign a form called "EXPLANATION OF DUTIES TO REGISTER AS A SEX OFFENDER (DD-04A 05/05)," and supposedly all laws are explained to them. Next the registrant is required to complete a "MICHIGAN SEX OFFENDER REGISTRATION (DD-04 05/05)" with all their personal information.
Now a little history: Michigan's most recent changes in registry laws prior to 2006 was in 2004. At that time the Michigan State Police (MSP) had every registrant report (to their local registering agencies) and required them to sign a DD-04A which ALLEGEDLY explains the laws and what the registrants were required to do because the laws changed in 2004.
This also occurred earlier in time (1999 and 2002) when laws were changed then. Now, notice the bottom right of the forms DD-04a and the DD-04 where it shows when laws were amended, and the forms were updated. So, assuming that the registering agents did what was required of them according to the 2004 law, the registrants were advised of the laws up to that point in 2004.
Along comes the 2005 Legislature and makes changes to existing registry laws and adds new requirements effective 1-1-2006 (PA 127 and PA 121 residency laws). However, there is the problem, no one tells the registrants of the changes, even though the law specifically requires notice to registrants of any changes.
The result, read Attorney John Moritz's comments, summarizing, the unsuspecting registrants move and go in to do what is required of them (at least what they were told to do in 2004), and if their new residence is in a NOW PROHIBITED ZONE bam they get arrested, charged, thrown in jail and likely convicted all because, a governmental agency, failed to do their job. i.e., notify registrants of changes in the laws.
In court, a prosecutor will show the court the registrant's DD-4A (from 2004) which ALLEGEDLY explains that the registrant was told about the laws, therefore he should be convicted of another crime. The registrant is blind-sided. Anyone think it will happen otherwise?
Unequal Treatment under the Laws:
Next, notice the comment made by Sen. Patty Birkholz "Those convicted of sex offenses after Jan. 1 have 90 days to move if they live near a school." She is quoting from MCL 28.735 "(4) An individual who resides within a student safety zone and who is subsequently required to register under article II shall change his or her residence to a location outside the student safety zone not more than 90 days after he or she is sentenced for the conviction that gives rise to the obligation to register under article II. ..."
Here is my problem with this 90-day grace period for all convicted AFTER 1-1-2006, notice what Attorney Moritz said about those who -convicted BEFORE 1-1-2006- if they move into a prohibited zone, immediately upon registering the new address they are arrested and charged with a crime!
Clear unequal treatment under the laws. No grace period for RSOs who move if they were convicted BEFORE 1-1-2006, and there is a grace period for those convicted AFTER 1-1-2006.
Or, Sen. Birkholz believes that, if a person who is convicted before 1-1-2006 moves, the law is NOT applicable to them no matter how many times they move or where they move. This is the exact issue raised in California regarding their Prop 83 and the Federal court has issued an Injunction to prevent enforcement of that law there.
A couple of closing points:
I loved this comment "Police and state legislators say the law is working well, ...." I agree, it is working well as "Legislative Entrapment," or "Police Entrapment," or lets just call it a "Conspiracy of Sorts" to confine registered offenders who can't figure out why this is happening to them, since they are trying to follow the law. Right, don't tell them the correct thing and Bingo they will mess up then the State can blame them.
"Nichols, fined $225 after pleading guilty to the safety zone violation, thinks the law is unfair to many offenders." Is there anyone who wants to contact this man and tell him what was done to him was illegal? I wonder if he can sue for damages in a 1983 Federal action? Lawyers, can you hear income?
In closing, folks should notice, I didn't address the merits of this residency law, simply because I don't think it has any merit except to keep Michigan known as a Prison State, its major industry!
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