Convicted sex offenders, under the Sex Offenders Registration Act (SORA), must provide the authorities with their address every three months.
Theoretically, this lets the police track their whereabouts, and, via the Internet, neighbors can check out, feel uncomfortable about and take precautions against the SORA registrant living next door or down the street.
So, what happens when a SORA registrant is homeless and doesn’t have an address to report?
If you’re the Ingham County prosecutor, you charge him with a felony and multiple misdemeanors for failing to register, failing to report and failing to paying the registration fee. If you’re Ingham County Circuit Court Judge Leo Brown, you dismiss the charges because it’s impossible to comply with the law. If you’re the Michigan Court of Appeals, you deny the prosecutor’s delayed application for leave to appeal.
And if you’re the Michigan Supreme Court, you send this conundrum back to the Court of Appeals and tell them to take a whack at it anyway.
That’s the situation in People v. Dowdy.
Dowdy was convicted of crimes that required SORA registration. When he was released from prison, he registered the Volunteers of America (VOA) shelter in Lansing as his address.
Everything ran smoothly for the next four years until the VOA discovered he was a convicted sex offender. The VOA’s policy is to refuse services to guys like Dowdy.
Dowdy didn’t register a new address with the Department of Corrections because he had no address to register, setting up some uncharted trial court and appellate territory.
The lucky Court of Appeals panel that gets this one won’t be going at it cold. In the MCS’s remand order, several of the justices shared some of their thoughts about the matter.
Michigan Supreme Court Chief Justice Marilyn Kelly, concurring in the order that sent the case back to the Court of Appeals, opined that the trial court may have gotten right in the first place.
“The felony charge against defendant is premised on the fact that he failed to register a new residence. SORA defines residence as ‘that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.’ It does not appear that the defendant had a new residence to register once the VOA required him to leave the shelter. Underpasses and park benches may be the places where defendant ‘habitually sleeps’ but they hardly qualify as a ‘regular place of lodging’ under the statute.”
Justice Diane M. Hathaway, dissenting, wrote that she wouldn’t even give the prosecutor another crack at it in the Court of Appeals because “the prosecutor failed to present sufficient evidence to bind defendant over for trial on the charges.”
Justice Robert P. Young Jr., dissenting, joined by Justices Maura D. Corrigan and Stephen J. Markman, saw things differently.
“Certainly, there was nothing preventing defendant from complying with the reporting requirements of MCL 28.725a(3) and (4) and informing law enforcement of his current living arrangements. It is undisputed that defendant had not reported to any police agency since 2003. Contrary to Chief Justice Kelly and Justice Hathaway’s contentions, there is nothing ‘absurd’ about the state’s requirement that persons convicted of sexual crimes periodically inform the police of their living arrangements, even if they are homeless. …
“While defendant’s homelessness may have provided unusual problems in proving his residence, the statute expressly contemplates atypical living arrangements, permitting the State Police to specify other satisfactory means of proving proof of domicile or residence. …
“Contrary to Justice Kelly’s assertion, my interpretation of the statute does not ‘create a Catch-22 situation.’ A defendant is required to report in person to the local police and notify the police of his residence or domicile, wherever that may be. … I see nothing in SORA that authorizes the state to penalize a defendant merely for being homeless; rather, the statute penalizes the defendant’s failure to report his residence or domicile with law enforcement.”