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Michigan Supreme Court Announces 2011 SORA May Not Be Retroactively Applied to Registrants Whose Offenses Predated Its Enactment Because Doing So Violates Prohibition on Ex Post Facto Laws

by Douglas Ankney

The Supreme Court of Michigan held that application of the state’s Sex Offenders Registration Act, MCL 28.271 et seq. (“SORA”), as amended by 2011 PA 17 and 18 (the “2011 SORA”), violates the constitutional prohibition against ex post facto laws when applied to registrants whose criminal acts predated enactment of the 2011 SORA.

Paul Betts, Jr., was convicted of second-degree criminal sexual conduct (“CSC-II”) in 1993. Two years later, SORA took effect. Betts successfully completed parole, but in 2012, he failed to report changes to his residence and email addresses and his purchase of a vehicle within three days in violation of MCL 28.725(1)(a), (f), and (g). Betts pleaded no contest to violating SORA’s registration requirements conditioned on his right to appeal the constitutionality of the 2011 SORA.

Betts sought leave to appeal in the Court of Appeals (“COA”), but the COA denied his application for lack of merit in the grounds presented. The Michigan Supreme Court ultimately granted his application for leave to appeal.

While Betts’ appeal was pending, the U.S. Court of Appeals for the Sixth Circuit held, inter alia, that the 2011 SORA violated the federal constitutional provision prohibiting ex post facto laws when applied to registrants whose criminal acts were committed before the effective date of the 2011 amendments. Does #1-5 v. Snyder,834 F.3d 696 (6th Cir. 2016). But the Michigan Supreme Court, relying on Johnson v. VanderKooi, 918 N.W.2d 785 (Mich. 2018), concluded Does#1-5 is not binding on the Court, and it conducted its own analysis, explaining that the Sixth Circuit didn’t address an ex post facto challenge under the Michigan Constitution.

Both the Michigan and U.S. Constitutions prohibit ex post facto laws. U.S. Const., art. I, § 10; Const. 1963, art. 1, §10. The four types of laws considered ex post facto are those laws that (1) punish an act that was innocent when the act was committed; (2) make an act a more serious criminal offense; (3) increase the punishment for a committed crime; or (4) allow the prosecution to convict on less evidence. People v. Earl, 845 N.W.2d 721 (Mich. 2014).

The Court noted that the third type is at issue in the current case, i.e., “whether the retroactive application of the 2011 SORA unconstitutionally increases the punishment for defendant’s CSC-II conviction.” A two-step inquiry is required to answer the question. Earl. The first step is to determine “whether the Legislature intended the statute as a criminal or civil remedy.” Id. The Court explained that “[i]f the statute imposes a disability for the purpose of reprimanding the wrongdoer, the Legislature likely intended the statute to be a criminal punishment.” Id. In contrast, the Legislature probably intended the statute to be a civil or regulatory remedy if the statute imposes a disability to further a legitimate public purpose. Id. A civil or regulatory remedy generally does not violate the ex post facto provisions unless “the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id.

In making this determination, the U.S. Supreme Court identified the following five nonexhaustive factors to consider: (1) is the regulatory scheme regarded in our history and traditions as punishment; (2) does it impose an affirmative duty or restraint; (3) does it promote the traditional aims of punishment; (4) does it have a rational connection to a nonpunitive purpose; or (5) is it excessive with respect to a nonpunitive purpose? Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

Because the Legislature’s asserted goal in passing and amending SORA was to “provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons” who have committed a specified sex offense and are considered to “pose a potential serious menace and danger to the health, safety, morals, and welfare of the people of this state,” the Court undertook the Mendoza-Martinez analysis. MCL 28.721a (Legislative declarations; determination; intent).

History and Tradition

The first version of SORA created a database accessible only to law enforcement, which required persons convicted of certain sex offenses to register and notify law enforcement of a change of address. SORA was then amended numerous times, increasing the duties of the registrants and the amount of information registrants must provide as well as disseminating the information to the public. However, because registries are of relatively recent origin, there are no direct analogies in the nation’s history and traditions, the Court noted.

Even so, the Court observed that the 2011 SORA requirement prohibiting registrants from living, working, or loitering within 1,000 feet of school property was akin to banishment. In urban areas with several schools, a registrant may be prohibited from residing within the locality due to inability to find affordable housing. In somewhat rural areas with concentrated community centers, the restriction may make employment impossible, excluding residency.

The 2011 SORA restrictions were also akin to the historical punishment of shaming. A registrant’s home address, place of employment, criminal convictions, sex, race, age, height, weight, hair and eye color, discernable features, and tier classification are available to the public online. When a registrant intends to move to a new location, residents within that zip code receive an electronic notification. All of this easily enhance ostracization of the registrant, the Court stated.

And the registrant’s requirements to report to a police station in person dozens of times each year is akin to a parolee on parole. Registrants have to report in person whenever any of a number of life events occur: change of email or online contact; purchase or sale of a vehicle; enrollment or disenrollment in school; change of job; change of address; etc. These are in addition to the regularly scheduled in-person appearances—annually for those with Tier 1 classification, semiannually for Tier 2, and quarterly for Tier 3.

Affirmative Disability or Restraint

Imprisonment is the paradigmatic affirmative restraint. Smith v. Doe, 538 U.S. 84 (2003). SORA provides for possible imprisonment for failure to comply with its obligations. Further, the Court stated that the numerous in-person reporting requirements and limitations on where a registrant may live or work impose restraints on liberty. State v. Letalien, 985 A.2d 4 (Maine 2009).

Traditional Aims of Punishment

The Court determined the 2011 SORA promotes retribution, which is a traditional aim of punishment. Earl. The 2011 SORA is imposed upon offenders based solely on the fact of their prior offenses and makes no individualized determination of the dangerousness of each registrant, indicating the 2011 SORA’s restrictions are retribution for past offenses rather than regulations to prevent future offenses. Smith.

Connection to
Nonpunitive Purposes

The Court determined, without much discussion, that the 2011 SORA is “rationally” connected to the nonpunitive purpose of public safety, but that’s not saying too much “given the low bar of rationality.”

Excessiveness

The Legislature’s asserted nonpunitive goal was based on the Legislature’s determination that “a person who has been convicted of committing an offense covered by [SORA] poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state.” MCL 28.721a. But central to the Court’s inquiry was whether the 2011 SORA provided a reasonable means of protecting the public from sex offenders who allegedly posed a “potential serious menace.” Smith.

The Court surprisingly considered a growing body of evidence demonstrating that the dangerousness of sex offenders has been overblown, and that registries have dubious efficacy in protecting the public or reducing recidivism. For example, sex offenders are less likely than other offenders to be rearrested for any crime. Recidivism of Sex Offenders Released from Prison: A 9 Year Follow-Up, U.S. Dept. of Justice (2019). Residency restrictions are “unlikely to mitigate or reduce the risk of recidivism among sex offenders.” An Evaluation of Sex Offender Residency Restrictions in Michigan and Missouri, Huebner et al (2013). For the Court’s purpose in examining the potential excessiveness of the 2011 SORA in relation to its public-safety purpose, the studies demonstrated, at a minimum, the 2011 SORA’s efficacy is unclear. Given that uncertainty, the Court concluded the restraints it imposes on over 40,000 registrants are excessive.

Conclusion

The Court concluded that after analyzing the Mendoza-Martinez factors, “the 2011 SORA’s aggregate punitive effects negate the state’s intention to deem it a civil regulation.” See Earl. Thus, the Court held that the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates both federal and state constitutional prohibitions on ex post facto laws.

 Accordingly, the Court ordered that Betts’ conviction of failure to register as a sex offender be vacated and the case remanded for further proceedings consistent with the Court’s opinion. See: People v. Betts, 968 N.W.2d 497 (Mich. 2021). 

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