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Court: Sex offender registry not cruel and unusual

Andrew Swoffer-Sauls

ALPENA — An Alpena man’s lifetime appearance on the Michigan Sex Offender Registry does not constitute cruel and unusual punishment, the Michigan Court of Appeals said.

Andrew Swoffer-Sauls, 23, was in 2020 convicted by a jury of assaulting and sexually abusing a minor girl. He’s currently serving a years-long prison sentence and will appear on the state’s Sex Offender Registry for the rest of his life.

Swoffer-Sauls appealed and in March 2022 the Court of Appeals affirmed his conviction but sent the case back to Alpena County Circuit Court for resentencing because the defendant appeared at the sentencing hearing via videoconference and the lower court had no evidence Swoffer-Sauls had waived his right to be physically present at the hearing.

The appellate court did not address at that time whether the circuit judge’s order for Swoffer-Sauls to appear on the Sex Offender Registry constituted cruel and unusual punishment, saying Swoffer-Sauls could address that issue at resentencing.

Swoffer-Sauls then appealed to the Michigan Supreme Court, which in September 2022 ordered the Court of Appeals to consider the registry question.

The Court of Appeals said earlier this month that the defendant hadn’t proven his lifetime appearance on the Sex Offender Registry constituted cruel and unusual punishment.

Swoffer-Sauls argued through his attorneys, Christine Pagac and Steven Helton, that his lifetime listing on the registry was unduly harsh because the trial court hadn’t proven he demonstrated an ongoing risk to the community and because the lower court hadn’t done an individualized assessment of his risk of reoffending.

The appellate court ruled the registry listing was not harsh because Swoffer-Sauls’ crime “involved a violent, nonconsensual, and humiliating sexual assault” and because the Legislature never intended for registry orders to include an individualized risk assessment.

Swoffer-Sauls also argued the lifetime registry listing was a disproportionately harsh punishment when compared to punishments for other crimes, but the Court of Appeals said “the grave nature of sex offenses … justifies lifetime monitoring.”

Swoffer-Sauls told the appellate court Michigan’s lifetime registry listing was harsher than other states, but the appellate court noted at least 10 other states had lifetime registry listings.

Finally, Swoffer-Sauls argued the lifetime listing was contrary to the state’s goals of rehabilitating offenders because he will for the rest of his life have a stigma attached to him, making it harder to get a job or acquire housing.

“While it is plausible that defendant’s presence on the registry will complicate aspects of his future life circumstances, those negative effects could be attributed to defendant having engaged in conduct resulting in convictions of offenses that happen to fall under (the Sex Offenders Registration Act’s) ambit, rather than to the registry itself,” the Court of Appeals said. “Defendant’s lifetime … requirement is not unjustifiably disproportionate because sex offender registration may deter defendant from recidivating in the future.”

The appellate court again affirmed Swoffer-Sauls’ conviction but again sent the case back to the Alpena County Circuit Court for resentencing over the videoconferencing issue.

Check out the Michigan Court of Appeals’ full opinion here.

Swoffer-Sauls COA Opinion by Justin Hinkley on Scribd

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